dismissed L-1A Case: Manufacturing

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washineton. DC 20529-2090 
.d 
identifLing data deleted to 
 U.S. Citizenship 
prevent clearly unwarranted and Immigration 
invasion of personal privacy 
File: WAC 08 239 51 157 
 Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 l(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
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). 
F. Grissom 
ng Chief, Administrative Appeals Office 
" WAC0823951157 
Page 2 
DISCUSSION: The Director, California Service Center denied the nonimmigrant visa petition and 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 10 l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, an Illinois corporation, states that it is engaged in the manufacture of 
industrial machinery and parts. It claims to be a subsidiary of Entropy International Co. Ltd., located in 
Taipei, Taiwan. The petitioner seeks to employ the beneficiary as its managing director for a period of three 
years. 
The director denied the petition on two independent and alternative grounds. Specifically, the director 
determined that the petitioner failed to establish: (1) that the beneficiary has been employed by the foreign 
entity in a primarily managerial or executive capacity; and (2) that the beneficiary will be employed by the 
U.S. 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 director incorrectly 
concluded that the beneficiary will be a first-line supervisor of non-professional employees, and contends that 
the director's conclusions as a whole are not supported by the evidence in the record. 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. 9 214.2(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 (I)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
WAC0823951157 
Page 3 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies 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 first issue addressed by the director is whether the petitioner established that the beneficiary has been 
employed by the foreign entity in a primarily managerial or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
WAC 08 239 51 157 
Page 4 
The petitioner filed the nonimmigrant visa petition on September 5, 2008. The petitioner stated on the petition 
that the beneficiary has been employed by its parent company in Taiwan since July 1, 2002, without interruption. 
The petitioner submitted a letter dated July 3, 2008 from Chief Executive Officer of the foreign 
entity, in support of the petition. confirmed the beneficiary's employment as "Account Manager" for the 
foreign entity and confirmed she has been employed by the company since July 1, 2002. He described the 
beneficiary's duties as the following: 
[The beneficiary] has been employed at managerial capacity since 2002; she is responsible for all 
machines and parts import & export activities; overseeing and coordinating the operation of 
branch offices and distribution centers, directing the actual inbound and outbound distribution of 
products to the customers; managing client relations on behalf of [the foreign entity]; coordinate 
sales distribution by establishing sales territories, quotas, and goals and establish training 
programs for sales representatives; analyze sales statistics gathered by staff to determine sales 
potential and inventory requirements and monitor the preferences of customers. 
The petitioner submitted a copy of the beneficiary's resume, in which she indicates that she was employed by the 
foreign entity as an account manager, performing the duties described above, from July 2002 until January 2006, 
and as a business analyst for Ha Jay International, Co. Ltd. in Taiwan from July 2000 until June 2002. The 
beneficiary indicates that she was attending a university in Taiwan from 1999 until 2003, and attending a 
university in the United States from 2004 until 2005. 
The director issued a request for additional evidence on October 2, 2008, requesting, inter alia: (1) a more 
detailed description of the beneficiary's duties abroad, indicating the percentage of time the beneficiary spent on 
each of the listed duties; (2) a list of the employees the beneficiary supervised while employed by the foreign 
entity, including job titles and position descriptions; (3) a detailed organizational chart for the foreign entity which 
clearly identifies the beneficiary's position and all employees who report to her; and (4) payroll records pertaining 
to the beneficiary's one year of qualifying employment abroad. The director instructed the petitioner to specify 
when the beneficiary was hired and the positions she held while employed by the foreign entity. 
In response, the petitioner stated that the beneficiary has been employed by the foreign entity's Taipei office since 
July 1998, initially as an international business representative, and, since July 2002, as account manager. The 
petitioner re-iterated the position description that was previously provided in letter dated July 3, 2008. 
The petitioner also provided the following description of the account manager position: 
As an account manager [the beneficiary] is responsible for all machines and parts import & 
export activities; overseeing and coordinating the operation of branch offices and distribution 
centers, directing the actual inbound and outbound distribution of products to the customers. In 
supervises the process of supply and shipment of customarily [sic] machinery products. She also 
oversees the inventory of various branch offices and distribution centers in order to manage the 
delivery activities in the most efficient manner. - 30% of the time. 
I. 
WAC 08 239 51157 
Page 5 
[The beneficiary] spends majority of her professional time on managing existing accounts, 
exploring new sales and managing client relations on behalf of [the foreign entityl. More 
specifically, she supervises 3 sales representatives (, and 
- in the Sales Department within [the foreign entity] and coordinates sales 
distribution by establishing sales territories, quotas, and goals and establishes training programs 
for sales representatives. She also reviews and analyzes sales statistics gathered by staff to 
determine sales potential and inventory requirements and monitor the preferences of customers. 
In this connection, she prepares quarter and annual sales reports and sales and marketing 
proposals for headquarter management to review. - 60% of the time. 
Within the [petitioner's] enterprise, [the beneficiary] will also coordinate transactional activities 
between [the foreign entity] and [the petitioner] concerned with production and distribution of 
products, as [the foreign entity] has been shipping machines and parts to [the petitioning 
company] on a regular basis - 10% of the time. 
The petitioner submitted an organizational chart for its international organization which depicts the beneficiary as 
general manager, sales department, for the foreign entity's Taipei ofice, supervising three employees, and as 
managing director of the U.S. ofice. 
The petitioner submitted pay stubs issued by the foreign entity to the beneficiary for the months of July and 
August 1998, July and August 1999, July and August 2000, along with additional payroll records from 2006, 
2007 and 2008. Apparently addressing the lack of payroll records for the period between August 2000 and 2006, 
the petitioner stated: 
As an employee since 1998 in [the foreign entity], the beneficiary has been under the supervision 
of the management of [the foreign entity]. She was required to travel constantly on behalf of [the 
company] among branches in different countries. While [the beneficiary] did not always 
received [sic] a salary directly from Taiwan (occasionally from other affiliate depending on 
location where services rendered), she is nonetheless an employee of [the foreign entity] since 
[the beneficiary] has been working at [the foreign entity's] Taiwan facility since 1998 and was 
promoted to managerial position since 2002 (see most recent Corporate Managerial 
Announcement attached); she is subject to the direction and control of [the foreign entity]; she is 
subject to dismissal by [the foreign entity] and the benefit from her services accrues to [the 
foreign entity] no matter whether she receives her salary from [the foreign entity] or not. [The 
beneficiary] is inescapably the employee of [the foreign entity]. 
The attached "Corporate Managerial Announcement" is a memorandum to employees of the foreign entity, dated 
July 29, 2005, regarding "Name of Managers & Supervisors of Various Departments." The beneficiary is listed 
as general manager of the sales department, supervising a "senior supervisor" and an "assistant 
supervisor" -. The employee list indicates that these same two employees hold the same 
positions in the quality inspection and procurement departments. The petitioner submitted a second, undated 
chart which lists all company employees in Taiwan, China, Vietnam and the United States. The beneficiary is 
WAC 08 239 51157 
Page 6 
listed as account manager in the Taiwan sales department, supervising two account executives and a specialist. 
The same chart identifies the beneficiary as the market research analyst in the U.S. ofice. 
The director denied the petition on November 21, 2008, concluding that the petitioner did not establish that the 
beneficiary was employed by the foreign entity in a primarily managerial or executive capacity. The director 
determined that the evidence submitted was insufficient to establish that the beneficiary supervised a subordinate 
staff of managerial, professional or supervisory employees, or that she managed an essential function of the 
foreign entity. 
On appeal, the petitioner states that, while employed by the foreign entity, the beneficiary had the authority to 
oversee the senior supervisor of the foreign entity's sales department, and to manage one of the 
major functions of the organization under the supervision of the CEO of the entire organization. Counsel states: 
Evidence supporting the original petition herein indicated that [the beneficiary] had been 
employed abroad by the foreign parent company as a general manager. In that managerial and 
executive capacity, she had exercised wide latitude of discretionary authorities in decision- 
making to achieve major goals of the company. 
Upon review, and for the reasons discussed herein, the AAO concurs with the director's determination. The 
petitioner has not established that the beneficiary has been employed by the foreign entity in a primarily 
managerial or executive capacity. In addition, the evidence submitted does not establish that the beneficiary 
had completed at least one continuous year of full-time employment abroad within the three years preceding 
the filing of the petition. 
The regulation at 8 C.F.R. 5 214.2(l)(ii)(A) states, in pertinent part: 
Periods spent in the United States in lawful status for a branch of the same employer or a 
parent, affiliate, or subsidiary thereof and brief trips to the United States for business or 
pleasure shall not be interruptive of the one year of continuous employment abroad but such 
periods shall not be counted toward fulfillment of that requirement. 
The petitioner must establish that the beneficiary was employed in a full-time managerial or executive 
capacity for at least one continuous year within the three years preceding the filing of the petition. In this 
case, the beneficiary has been employed by the petitioner in the United States since January 2006, initially in 
F-1 optional practical training, and, since October 2006, in H-1B status. This employment, while not 
interruptive of her employment with the foreign entity, does not count toward fulfillment of her qualifying 
year of employment abroad. Therefore, the petitioner must establish that the beneficiary's one year of 
qualifying employment abroad occurred between January 2003 and January 2006. 
In addition, the evidence of record shows that the beneficiary was admitted to the United States to attend a 
university in Ohio, presumably in F-1 status, beginning in the fall semester of 2004. Since she completed the 
degree in the United States in December 2005 and started to work for the petitioner almost immediately 
afterwards, it is reasonable to conclude that she has been residing in the United States more or less since her 
WAC 08239 51157 
Page 7 
admission as a student in the fall of 2004. Even if the petitioner established that the beneficiary received a 
salary as an employee of the foreign entity during this time, the beneficiary cannot accrue her year of 
employment experience with the foreign entity while physically present in the United States. The 
beneficiary's year of qualifLing employment abroad, therefore, must have occurred between January 2003 and 
the fall of 2004. 
As a threshold matter, the AAO notes that the record is replete with inconsistencies regarding the 
beneficiary's dates of employment, job titles, job duties, and level of authority within the foreign entity which 
make it impossible to properly analyze this issue. The petitioner initially indicated that the beneficiary joined 
the foreign entity in the position of account manager in July 2002, and the beneficiary states on her resume 
that she held this position from July 2002 until January 2006. As noted above, the beneficiary also indicates 
on her resume that she was attending university in Taiwan from 1999 until 2003, and in the United States 
from 2004 to 2005, thus raising questions as to whether this period of employment was continuous or full- 
time. The petitioner later stated that the foreign entity hired the beneficiary as an international business 
representative in July 1998 and employed her in this position until 2002. According to the beneficiary's 
resume, she was attending secondary school until 1999, and employed by a different company, Ha Jay 
International Co. Ltd., from 2000 until 2002. While the petitioner has produced payroll records for the 
beneficiary for two months in 1998, two months in 1999, and two months in 2000, the AAO finds reason to 
question their probative value as evidence of her continuous full-time employment with the foreign entity. 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). 
The record also contains conflicting information regarding the beneficiary's most recent foreign employment, 
with some documents referring to her as "general manager, sales department" and some documents referring 
to her as "account manager." The petitioner has not consistently identified the names and job titles of the 
beneficiary's subordinates in the foreign entity, nor is it clear that any of the claimed subordinates actually 
worked for the foreign entity at a time when the beneficiary was physically residing in Taiwan. The charts 
which identify the beneficiary as "account manager" appear to have been created subsequent to the 
beneficiary's commencement of employment with the U.S. entity and are not relevant to a determination as to 
whether the beneficiary performed primarily managerial or executive duties while employed by the foreign 
entity. Similarly, the internal company announcement indicating the beneficiary's job title as "general 
manager" with the foreign entity was created at a time when the beneficiary had already been in the United 
States for at least a year attending university. The petitioner also states for the first time on appeal that the 
beneficiary served as general manager of the entire foreign organization, reporting directly to the CEO of the 
petitioner's international group, a claim that is not supported by any of the submitted organizational charts. 
Finally, the AAO notes that the petitioner has not provided any payroll records or other relevant evidence to 
corroborate the petitioners' claims that the beneficiary was employed by the foreign entity for one continuous 
year in the three years preceding her initial employment with the U.S. company in January 2006. The 
petitioner has not provided sufficient explanation for this omission, other than noting that the beneficiary was 
traveling and might have been paid by an affiliate. At the same time, the petitioner has indicated that she has 
WAC 08 239 5 1 157 
Page 8 
always worked at the foreign entity's Taipei office. Regardless of whether the beneficiary was paid by the 
foreign entity or one of its affiliates or subsidiaries, it is reasonable to expect the petitioner to present some 
payroll documentation or other evidence to corroborate the beneficiary's employment with the foreign entity 
during the relevant time period. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Sofjci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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). 
Given the discrepancies catalogued above, the AAO cannot conclude that the beneficiary was employed by 
the foreign entity in a managerial or executive capacity, or that she was employed by the foreign entity on a 
full-time basis for a continuous year during the relevant three-year time period. The beneficiary's actual job 
titles, job duties, dates of employment and level of authority within the foreign entity have not been resolved 
and the AAO is not in a position to determine which account of the beneficiary's most recent Taiwan-based 
position, if any, is accurate or relevant. Accordingly, the appeal will be dismissed. 
The remaining issue to be addressed is whether the petitioner established that the beneficiary will be 
employed by the U.S. entity in a primarily managerial or executive capacity. 
The petitioner stated in its letter dated August 28, 2008 that the beneficiary will perform the following duties 
as managing director of the U.S. company: 
She will perform her duties as a managerial delegate from [the foreign entity]. She will be 
responsible for planning and directing all aspects of [the petitioner's] operations, as well as 
coordinating intercompany relations between [the foreign entity] and [the petitioner]. 
As a Managing Director in [the U.S. company], she will be responsible for managing and 
directing the entire U.S. operation of [the petitioner]. Her major responsibilities include 
formulating [the petitioner's] company policies, supervising [the petitioner's] daily operations, 
including sales and marketing, inventory and asset protection, expense control, customer 
service and employee development. She will devote 80% of her time performing such 
functions. More specifically, she will analyze market trends and economic conditions to 
forecast potential purchases and sales, direct [the petitioner's] operating activities concerned 
with pricing and sales; supervise company staff (4-7 employees); prepare work schedules and 
assign specific duties; determine staffing requirements; interview, hire and train new 
employees and oversee personnel processes; manage [the petitioner's] financial activities, 
review financial statements, sales and activity reports, and other performance data to measure 
productivity and goal achievement and to determine areas needing cost reduction and 
program improvement; monitor [the petitioner's] businesses to ensure that same efficiently 
and effectively provide needed services while staying within budgetary limits; oversee 
activities directly related to making products or providing services; direct and coordinate 
financial and budget activities to fund operations, maximize investments, and increase 
' WAC0823951157 
Page 9 
efficiency; determine goods and services to be sold, and set prices and credit terms, based on 
forecasts of customer demand. 
Within [the petitioner's] enterprise, [the beneficiary] will also coordinate transactional 
activities between [the foreign entity] and [the petitioner] concerned with production and 
distribution of products, as [the foreign entity] has been shipping machines and parts to [the 
petitioner] on a regular basis. She will identify opportunities or market trends for 
modification or development of production lines that will improve [the petitioner's] capability 
to meet our U.S. client needs. Also, she will be in charge of the financial support and other 
funding activities from the parent company. In this connection, [the beneficiary] will spend 
approximately 15% of her time handling this responsibility. 
In addition, [the beneficiary] will prepare quarterly and annual management reports for 
presentation to [the foreign entity]. She will also draft company news for broadcast on [the 
petitioner's] business news networks. Approximately 5% of [the beneficiary's] time will be 
dedicated to performing this responsibility. 
The petitioner indicated that the beneficiary has been employed by the petitioner as a market research analyst 
in H-1B status since 2006. The petitioner stated that she performs the following duties: 
[The beneficiary] is responsible for researching market conditions to determine potential sales 
of our various industrial products and engineering services in the United States, examining 
and analyzing statistical data to forecast future market trends, gathering information on our 
competitors, and analyzing prices, sales and methods of marketing and distribution as well. In 
addition, [the beneficiary] uses survey results to create new marketing strategies based on our 
potential clients' preferences and buying habits. 
The petitioner stated that the U.S. entity serves as a "point of shipping, but also a complete logistics/customer 
service center that allows its customers to take advantage of manufacturing while dealing with a domestic 
vendor." The petition indicated that the U.S. company has four employees and gross annual income of $2.3 
million. 
In the RFE issued on October 2,2008, the director requested that the petitioner provide additional information 
regarding the beneficiary's proposed position, including: (1) the total number of employees at the U.S. 
location where the beneficiary will work; (2) a more detailed description of the beneficiary's duties, including 
the percentage of time she will spend in each of the listed duties; (3) an organizational chart for the U.S. 
company, clearly identifying the beneficiary's subordinates, along with their job duties, educational level, 
annual salaries/wages, and immigration status; (4) copies of the petitioner's state quarterly wage reports for 
the last four quarters; and (5) copies of the petitioner's payroll summary, and IRS Forms W-2 and W-3 
evidencing wages paid to the employees the beneficiary would be supervising. 
In response, the petitioner submitted a list of the petitioner's employees and their job titles, which include the 
beneficiary - market research analyst; - director of engineering, sales & marketing; Sara 
WAC 08 239 5 1 157 
Page 10 
accountant; and distribution center supervisor. The petitioner also submitted an 
organizational chart on which the beneficiary is identified as managing director supervising the other three 
employees. The petitioner stated that the accountant has a bachelor's degree and is responsible for managing 
and maintaining accounting functions of the company, including accounts payable, accounts receivable, tax 
and payroll. The petitioner indicated that the director of engineering sales and marketing has a bachelor's 
degree and is responsible for generating new sales to meet company goals, managing contracted engineering 
and sales support, and maintaining existing accounts. Finally, the petitioner indicated that the distribution 
center supervisor has a high school diploma and is responsible for inventory control, equipment maintenance, 
performing shipping and receiving, and packaging of inventory and receivables. The organizational chart 
indicates that the beneficiary reports to the president of the U.S. company. 
The petitioner provided the following expanded description of the beneficiary's proposed duties as managing 
director: 
[S]he will analyze market trends and economic conditions to forecast potential purchases and 
sales, direct [the petitioner's] operating activities concerned with the pricing and sales. For 
this purpose, she will supervise , who has earned a Bachelor's degree in 
Engineering and has taken the key responsibility in the company's engineering sales and 
marketing functions. [The beneficiary] will review sales and activities reports and other 
performance data presented by to measure productivity and goal achievement 
and to determine areas needing cost reduction and program improvement - 30% of the time. 
[The beneficiary] will monitor [the petitioner's] businesses to ensure that same efficiently and 
effectively provide needed services while staying within budgetary limits; oversee activities 
directly related to making products or providing services (supervising Distribution Center, 
-> in connection with inventory control, merchandise shipping, 
receiving, packaging of inventory and receivables); direct and coordinate financial and 
budget activities to fund operations, maximize investments, and increase efficiency; 
determine goods and services to be sold, and set prices and credit terms, based on forecasts of 
customer demand. - 20% of the time. 
In addition, [the beneficiary] will work closely with the accountant of [the 
petitioning company], who has been managing and maintaining the accounting functions for 
the company since 2006. Under [the beneficiary's] supervision, will perform 
daily accounting functions, such as managing account payables and account receivables. In 
this connection, [the beneficiary] will review quarterly financial reports and annual financial 
statements prepared by in order to manage [the petitioner's] financial activities 
and report to [the foreign entity]. - 20% of the time. 
[The beneficiary] will also supervise company staff, prepare work schedules and assign 
specific duties; determine staffing requirements; interview, hire and train new employees and 
oversee personnel processes. - 10% of the time. 
I. 
WAC 08 239 51 157 
Page 11 
Within the [petitioning] enterprise, [the beneficiary] will also coordinate transactional 
activities between [the foreign entity] and [the petitioner] concerned with production and 
distribution of products, as [the foreign entity] has been shipping machines and parts to [the 
petitioner] on a regular basis. She will identify opportunities or market trends for 
modification or development of production lines that will improve [the petitioner's] capability 
to meet our U.S. client needs. Also, she will be in charge of the financial support and other 
funding activities from the parent company. In this connection, [the beneficiary] will spend 
approximately 15% of her time handling this responsibility. 
In addition, [the beneficiary] will prepare quarterly and annual management reports for 
presentation to [the foreign entity]. She will also draft company news for broadcast on 
[company] business news networks. Approximately 5% of [the beneficiary's] time will be 
dedicated to performing this responsibility. 
The director denied the petition on November 21, 2008, concluding that the petitioner failed to establish that 
the beneficiary will be employed in a primarily managerial or executive capacity in the United States. In 
denying the petition, the director acknowledged the petitioner's statements that two of the beneficiary's 
subordinates have bachelor's degrees, but found that the petitioner did not establish that their positions would 
normally require a college graduate. The director concluded that the beneficiary would be a first-line 
supervisor of non-professional employees. The director also found that the petitioner did not demonstrate that 
the beneficiary will be functioning at a senior level within an organizational hierarchy or managing an 
essential function of the organization. Rather, the director found that she would be involved in directly 
providing the services of the U.S. company. 
On appeal, the petitioner objects to the director's finding that the beneficiary will be performing as a first-line 
supervisor of non-professional employees, and asserts that the director's conclusions are contrary to the 
evidence of record. The petitioner further objects to the director's determination that the beneficiary would be 
involved in providing the services of the company and performing its day-to-day functions. The petitioner 
emphasizes that the "services of the company" are manufacturing and selling machinery and that the 
beneficiary is involved in neither of these activities. The petitioner asserts that the beneficiary "has been and 
will continue to be duly exercising wide latitude in discretionary decision making consistent with the balance 
of the statutes and regulations, e.g., managing the organization, or a department, subdivision, functions or 
component thereof." 
As evidence that that the beneficiary exercises authority over the company's day-to-day operations beyond the 
level normally vested in a first-line supervisor, the petitioner submits evidence that the beneficiary has the 
authority to sign checks, leases, financial documents, tax documents, and employee offer letters on behalf of 
the U.S. company. 
Upon review, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity in the United States. 
WAC 08 239 51 157 
Page 12 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 9 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
The petitioner's initial description of the beneficiary's duties was lengthy but overly general, and failed to 
identify the specific duties the beneficiary will perform on a day-to-day basis. For example, the petitioner 
stated that the beneficiary will devote 80% of her time to "managing and directing the entire U.S. operation," 
formulating company policies, supervising daily operations in the areas of sales and marketing, inventory and 
asset protection, expense control, customer service and employee development, and overseeing "activities 
directly related to making products or providing services." The petitioner offered little explanation as to what 
specific duties she would be required to perform in overseeing these functions, or who on the petitioner's staff 
would perform non-qualifiing or administrative duties within each area of responsibility. The specific 
managerial or executive duties the beneficiary would perform to "coordinate transactional activities ... 
concerned with production and distribution of products" were not defined. 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. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, the petitioner did not indicate that an employee would be hired to fill the market research analyst 
position that the beneficiary currently holds in H-1B status. This information is relevant, as the petitioner 
indicates that the beneficiary, as managing director, would continue to be responsible for analyzing market 
trends and economic conditions, and identifying opportunities and market trends. If she will in fact retain the 
responsibilities she has been performing on a full-time basis as a market research analyst, then this would 
necessarily impact the amount of time she could feasibly allocate to managerial and executive duties.' 
The AAO notes that the petitioner indicated that the beneficiary would be supervising "4-7" employees; 
however, the petitioner employs only three employees, not including the beneficiary, and has not identified 
any vacant positions to be filled, or any contractors who provide services for the petitioner on a regular basis. 
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). 
Upon review of the initial evidence, the director reasonably requested additional information to clarify the 
beneficiary's actual job duties, the percentage of time she will devote to specific duties, the organizational 
structure of the company, and the types of employees the beneficiary will supervise. 
' USCIS records indicate that the petitioner filed a petition to extend the beneficiary's H-1B nonimmigrant 
status in March 2009 (WAC 09 118 52086). The petitioner indicated on Form 1-129 that it was requesting a 
continuation of the beneficiary's previously approved employment without change. The beneficiary's 
previously approved employment, according to the information contained in the current record, was for the 
position of market research analyst. 
, , 
WAC 08 239 51 157 
Page 13 
In response to the RFE, the petitioner offered little additional insight into what specific tasks the beneficiary 
would perform as the petitioner's managing director. The petitioner stated that the beneficiary will devote 30 
percent of her time to "analyze market trends and economic conditions to forecast potential purchases and 
sales"; "direct . . . operating activities concerned with pricing and sales"; and "review sales and activity 
reports" resented by the director of engineering sales and marketing. Although the petitioner indicated that 
has "taken the key responsibility" in the engineering, sales and marketing functions, the record 
contains no detailed description of his duties sufficient to establish how he single-handedly relieves the 
beneficiary from performing the non-managerial duties associating with these three functions. The petitioner 
indicates that he generates new sales, maintains existing accounts and manages "contracted engineering & 
sales support." There is no indication that he relieves the beneficiary from performing market research or 
other marketing functions, and no evidence to substantiate the petitioner's use of contracted engineering and 
sales support staff. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner indicated that the beneficiary will allocate an additional 20% of her time to "monitor [the 
oetitioner'sl businesses to ensure that same efficientlv and effectivelv ~rovided needed services." In this 
. x 
regard, the petitioner states that the beneficiary will supervise 
 in connection with "inventory 
control, merchandise shipping, receiving, packaging of inventory," and "oversee activities directly related to 
making products or providing services." The petitioner did not adequately explain what specific managerial 
duties the beneficiary performs to monitor the petitioner's businesses or indicate how one employee is able to 
perform all administrative and operational tasks associated with the petitioner's "distribution center." As 
noted by the director, the beneficiary's duties in this regard appear more akin to those of a first-line supervisor 
than those of a manager or executive. 
Finally, the petitioner failed to elaborate upon what specific managerial or executive tasks the beneficiary 
would perform with respect to "intercompany functions" such as "coordinating transactional activities" 
associated with distribution and shipping of products, and "identifying opportunities or market trends for 
modification or development of production lines." It is not clear whether the beneficiary's subordinates are 
responsible for coordinating any "functions" with the foreign entity and it cannot be determined that the 
beneficiary's duties in this regard would rise to the level of managerial or executive capacity. 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 her daily routine. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1 108 (E.D.N.Y. 1989), ayd, 905 F.2d 41 (2d. Cir. 1990). 
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 establish that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 199 1). 
WAC 08 239 51 157 
Page 14 
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, the employment and remuneration 
of employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. Here, while it appears that the beneficiary would exercise authority over personnel and financial 
matters, and act as the petitioner's primary liaison with the petitioner's parent company, there is insufficient 
explanation regarding the beneficiary's specific job duties and the distribution of work within the company to 
establish that the beneficiary is relieved fiom primarily performing administrative or operational functions. 
The petitioner's arguments on appeal, while persuasive in establishing the beneficiary's level of authority, 
provide little new insight into the nature of the beneficiary's day-to-day responsibilities. 
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. tj 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. 9 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. tj 214.2(1)(1)(ii)(B)(3). 
The petitioner has not established that the beneficiary would qualify for L-1A classification as a personnel 
manager. As noted by the director, although two of the beneficiary's subordinates are stated to have bachelor's 
degrees, USCIS must evaluate whether the subordinate positions require a baccalaureate degree as a minimum 
for entry into the field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. tj 1101(a)(32), states that "[tlhe 
term profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and 
teachers in elementary or secondary schools, colleges, academies, or seminaries." The term "profession" 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by a 
prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic 
prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); 
Matter of ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. The limited job descriptions provided for the accountant and director of sales engineering and 
marketing are insufficient to establish whether either of these positions reasonably requires an employee who 
possesses a bachelor's degree in a specific field. Nor has the petitioner shown that any of the beneficiary's 
subordinate employees supervise subordinate staff members or manage a clearly defined department or 
function of the petitioner, such that they could be classified as managers or supervisors, other than in position 
title. Thus, the petitioner has not shown that the beneficiary's subordinate employees are supervisory, 
professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
' ' 
WAC 08 239 51157 
Page 15 
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. 5 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 job 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. 5 214.2(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. In this matter, the petitioner has neither claimed nor provided evidence that the 
beneficiary will primarily manage an essential function or functions. 
Finally, the statutory definition of the term "executive capacity" focuses on a person's elevated position within 
a complex organizational hierarchy, including major components or fknctions of the organization, and that 
person's authority to direct the organization. Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making1' and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. The fact that the beneficiary 
manages a business, regardless of its size, does not necessarily establish eligibility for classification as an 
intracompany transferee in an executive capacity within the meaning of section 101(a)(15)(L) of the Act. The 
petitioner must also establish that someone other than the beneficiary is available to perform the day-to-day 
functions of the organization. Here, the record fails to establish that the majority of the beneficiary's duties 
will be primarily directing the management of the organization or a component or function of the 
organization. 
The AAO acknowledges that the size of the petitioning company alone, without taking into account the 
reasonable needs of the organization, may not be the determining factor in denying a visa to a multinational 
manager or executive. See 9 101(a)(44)(C) of the Act, 8 U.S.C. 3 1101(a)(44)(C). However, in reviewing the 
relevance of the number of employees a petitioner has, federal courts have generally agreed that USCIS "may 
properly consider an organization's small size as one factor in assessing whether its operations are substantial 
enough to support a manager." Family Inc. v. US. Citizenship and Immigration Services 469 F. 3d 13 13, 
1316 (9" Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); 
Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the 
absence of employees who would perform the non-managerial or non-executive operations of the company, or 
a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics 
Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
' WAC0823951157 
Page 16 
The petitioner is a 13-year-old company that is described as an "industrial molds design, manufacturing and 
marketing organization," which provides design and engineering services to assist clients with offshore 
production of their products from concept to completion. It also indicates that it serves as a point of shipping 
and a complete logistics/customer service center. In addition to the beneficiary, the petitioner employs one 
engineering/sales/marketing employee, one distribution center employee, and one accountant whose duties 
appear to be limited to dealing with the company's day-to-day finances. As discussed above, it is not clear 
how the remaining two employees perform all engineering design, project management, sales, marketing, 
research, inventory, import, logistics, warehousing, customer service, and manufacturing coordination 
functions to the extent that the beneficiary's role would be limited to monitoring or overseeing such activities. 
The petitioner also does not claim to have any administrative staff to perform routine office tasks. The AAO 
notes that, based on the petitioner's IRS Forms W-2, Wage and Tax Statements, the company paid 6 to 12 
employees between 2005 and 2007, as opposed to four employees in 2008, and saw its payroll drop from 
nearly $300,000 in 2006 to approximately $152,000 in 2007. Upon review of the totality of the evidence, it is 
reasonable to question how the petitioner's current subordinate staff of three employees would relieve the 
beneficiary from operational and administrative tasks to the extent that she could reasonably devote the 
majority of her time to primarily managerial or executive functions. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
by the U.S. entity in a primarily managerial or executive capacity. For this additional reason, the appeal will 
be dismissed. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if he or she shows that the AAO abused its discretion 
with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. 
Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.