dismissed L-1A Case: Marble Import/Distribution

U.S. Department of Homeland Security 
20 Mass, Rm. A3042,425 1 Street, N.W. 
Washington, DC 20529 
MoatEQtagdabdelMto U.S. Citizenship 
prevei~t dearly ~nwarrrmted and Immigration 
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mLIC COPY 
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FILE: EAC 02 241 53978 Office: VERMONT SERVICE CENTER Date: dPR 0 1 2005 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 101(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. 
dministrative Appeals Office 
www .uscis.gov 
EAC 02 241 53978 
Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner, UTA-USA LLC, endeavors to classify the beneficiary as an intracompany 
transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner claims to be an affiliate of Oz Kardester Yapi Malz. Paz. 
San. Ve Tic. Ltd. Sti., located in Turkey and is engaged in the business of importing and 
distributing marble. It seeks to extend the petition's validity and the beneficiary's stay for three 
years as the U.S. entity's president. The petitioner was incorporated in the State of New Jersey on 
March 2 1,2001 and claims to have eight employees. 
On February 7, 2003 the director denied the petition because the petitioner failed to establish that 
the beneficiary has been and will be employed in a primarily executive or managerial capacity. 
On appeal, the petitioner's counsel submits a brief and claims that "[blased on the foregoing and 
all evidence submitted herewith, it should be abundantly clear that Beneficiary's position of 
President of [the petitioner] is an executive position. . . ." 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. Furthermore, the beneficiary must seek to enter the United States temporarily to 
continue rendering his or her services to the same employer or a subsidiary or affiliate thereof in a 
managerial, executive, or specialized knowledge capacity. 
In relevant part, the regulations at 8 C.F.R. 5 214.2(1)(14)(3) state that an individual petition filed 
on Form 1-129 shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) 
of this section; 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services 
to be performed. 
Further, the regulations at 8 C.F.R. 5 214.2(1)(14)(ii) require that a visa petition under section 
101(a)(15)(L) of the Act which involved the opening of a new office may be extended by filing a 
new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (I)(l)(ii)(G) of this section; 
EAC 02 24 1 53978 
Page 3 
(B) Evidence that the United States entity has been doing business as defined 
in paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous 
year and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a managerial 
or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the beneficiary has been and will be primarily performing 
executive or managerial duties for the United States entity. Section 101(a)(44)(A) of the Act, 8 
U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(i) manages the organization, or a department, subdivision, function. or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, or a 
department or subdivision of the organization; 
(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 lOl(a)(#)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means 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; 
EAC 02 241 53978 
Page 4 
(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. 
In July 10, 2002 supporting letter, the petitioner described the beneficiary's proposed U.S. duties 
as the following: 
[The beneficiary] will now devote a substantial portion of his time in the United 
States to the management of the Company. [The beneficiary] will continue to be 
responsible for the supervision of the import operations, coordinating 
shipmentttransportation of merchandise, and supervising the accounting and 
budgeting functions of the United States Company. His specific responsibilities 
will continue to include the following: 
(1) Researching and purchasing the products to be imported from 
foreign countries in the United States; 
(2) Dealing with U.S. Customs, coordinating the domestic and 
foreign countries in the United States; 
(3) Supervising domestic procurement of items pertaining to 
business activities; 
(4) Supervising stock and warehouse facilities; 
(5) Supervising accounting and budgeting records; and 
(6) Conducting cost analysis. 
The petitioner also stated that the beneficiary will "share the responsibility and authorization for 
the general decisions affecting the Company's general activity and performance; e.g., investment 
decisions, capital increase, recruitment of employees, among other issues." 
Additionally, the petitioner submitted a copy of its employee contact list showing the names and 
positions of the workers. In its supporting letter, the petitioner claimed that as of June 2002 there 
were five full-time and three part-time employees including a president (the beneficiary), a vice 
president/ general manager, a full-time secretary, two full-time sales men, two part-time workers, 
and a part-time driver. The record also revealed that the petitioner indicated on its 2002 
Employer's Report of Wages Paid Form WR-30 that it had had added six new employees and 
deleted the former five employees that had previously been employed by the petitioner. It is 
unclear why this change occurred. 
EAC 02 241 53978 
Page 5 
In a request for additional evidence, on August 23,2002, the director requested that the petitioner 
submit a comprehensive description of the beneficiary's proposed duties, an organizational chart 
for the U.S. entity indicating where the beneficiary will assume a managerial role, and a 
description of the subordinate employees' duties. 
In response to the request for additional evidence, the petitioner submitted an October 16, 2002 
letter that described the beneficiary's duties and his subordinates' duties. The petitioner stated 
that two of the sales persons "recently resigned from the company." In part, the letter described 
the beneficiary's U.S. duties as the following: 
[The beneficiary] . . . will be responsible for devising strategies and formulating 
policies to ensure the Company's specific goals and objectives are met. Policy 
decisions include those involving investment decisions, capital increase and 
Company expansion into other regions of the U.S. [The beneficiary] has direct 
responsibility for purchasing, distribution and recruitment of professional 
employees. 
Additionally, the beneficiary's duties were described in the letter under each of the following six 
enumerated headings: 
(I) Researching and purchasing the products to be imported from foreign 
countries into the United States 
(2) Dealing with U.S. Customs, supervisingtcoordinating the domestic and 
foreign transportation of the merchandise and preparing the shipment 
contracts 
(3) Supervising domestic procurement of items pertaining to business activities 
(4) Inventory report analysis 
(5) Supervising accounting and budgeting records 
(6) Managing cost analysis 
The petitioner also stated that the beneficiary will perform "executive/managerial functions" and 
that his "responsibilities are of a senior level within the organizational hierarchy and with respect 
to the functions managed." In addition, the petitioner stated that the beneficiary "exercises wide 
discretion over the day-to-day operations of the functions for which he has authority." 
On February 7, 2003, the director denied the petition because the petitioner failed to establish that 
the beneficiary has been and will be employed in a primarily executive or managerial capacity. 
The director found that the description that the petitioner provided of the beneficiary's duties was 
vague and did not "expound on the day-to-day activities of the beneficiary." 
On appeal, the petitioner's counsel submits a brief that further describes the beneficiary's duties 
and claims that the beneficiary's position is "an executive position." 
In 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. 5 214.2(1)(3)(ii). On review, the 
petitioner has failed to establish that the beneficiary has been and will be employed in a primarily 
EAC 02 241 53978 
Page 6 
managerial or executive capacity. In the instant matter, the petitioner has provided a broad 
description of the beneficiary's duties that fails to indicate exactly what duties the beneficiary will 
primarily perform on a the daily basis. For example, the petitioner stated that the beneficiary's 
duties will involve "devising strategies and formulating policies," and "[rlesearching and 
purchasing the products" by "focusing on the product quality and price negotiations." The 
petitioner also claimed, on appeal, that the beneficiary will be involved in performing executive 
duties including, "directing the company's acquisition of inventory and negotiation of contracts 
and prices with foreign suppliers." However, the petitioner's description of the beneficiary's 
duties is non-specific. 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. Sava, 724 F. Supp. 1103 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, the petitioner generally paraphrased the statutory definition of executive capacity. See 
section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A). For instance, on appeal, the 
petitioner stated that the beneficiary "exercises wide discretion over the day-to-day 
operations of the functions for which he has authority." However, conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient. Merely repeating the 
language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 4 1 (2d. Cir. 
1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). 
In addition, on appeal, the petitioner describes the beneficiary as being involved in "negotiation 
of contracts." Since the beneficiary is actually involved in the plans to increase sales and 
revenues, he will be providing the services of the business rather than directing such activities. 
On appeal the petitioner claims that "[olnce the Company has been more firmly established and 
more profitable, and sufficient suppliers abroad are identified and contracts finalized, the 
Company will be in apposition to hire an individual who is qualified to assume import 
responsibilities - including negotiation of contractslprices with suppliers." Therefore, the AAO is 
not persuaded that the beneficiary will only direct the management of the organization. An 
employee who primarily performs the tasks necessary to produce a product or to provide services 
is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593,604 (Cornm. 1988). 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties 
involve supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See 3 IOl(a)(44)(A)(ii) of the Act. In response to the 
director's request for additional evidence, the petitioner claimed that the beneficiary has "indirect 
managerial responsibility over the existing employees." In evaluating whether the beneficiary 
manages professional employees, the AAO 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. 3 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 
EAC 02 241 53978 
Page 7 
realistic prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 
817 (Cornrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 1 1 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 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. In the instant matter, the 
petitioner has not, in fact, established that an advanced degree is actually necessary, for example, 
to perform the duties and administrative work of the full-time secretary, whom are among the 
beneficiary's subordinates. 
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 directing an "essential 
function" within the organization. See section 101(a)(44)(B)(i) of the Act, 8 U.S.C. 
§ 1101(a)(44)(B)(i). The petitioner stated on appeal that the beneficiary "directs the management 
of import and operation activities." If a petitioner claims that the beneficiary is directing an 
essential function, the petitioner must identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
directing the essential function. In addition, the petitioner must provide a comprehensive and 
detailed description of the beneficiary's daily duties demonstrating that the beneficiary directs the 
function rather than performs the duties relating to the function. As previously stated an employee 
who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology 
International, 19 I&N Dec. at 593, 604. In this matter, the petitioner has not provided evidence 
that the beneficiary directs an essential function. 
After careful consideration of the evidence, the AAO concludes that the petitioner has not 
established that the beneficiary has been or will be employed in a primarily executive or 
managerial capacity. For this reason, the petition will not be approved. 
Beyond the decision of the director, the record does not establish that the parent company is still 
doing business abroad and still maintains a qualifying relationship with the U.S. entity pursuant to 
8 C.F.R. 3 214.2(1)(l)(ii)(G). The petitioner submitted insufficient evidence to establish that the 
foreign entity continues to do business abroad. The evidence in the record appears to suggest that 
overseas suppliers ship materials to the U.S. company without operating through a foreign 
affiliate. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornm. 1972). In addition, the petitioner claims that the beneficiary 
(president of the company) and Ahmet Tuncer (general manager of the company) each own 50 
percent of the U.S. entity. However, this raises a question as to the control of the U.S. and 
claimed foreign entity. The petitioner submitted a copy of its bylaws, U.S. Return of Partnership 
Income taxes Form 1065, membership certificates, and stock certificates indicating that the 
beneficiary and Ahmet Tuncer each owned 50 units of the U.S. company. However, this evidence 
failed to establish control of the U.S. entity. Without full disclosure of all relevant documents, 
CIS is unable to determine the elements of control of the U.S. entity and claimed foreign 
company. For this additional reason, the petition will not be approved. 
EAC 02 241 53978 
Page 8 
Another issue beyond the decision of the director is whether the petitioner has established that the 
beneficiary's services are to be used for a temporary period and that he will be transferred to an 
assignment abroad upon the completion of the temporary services in the United States pursuant to 
8 C.F.R. 5 214.2(1)(3)(vii). Since both partners are running the U.S. business, this raises the 
question as to who would actually be operating the overseas company. The record does not 
contain proof that the beneficiary's services are to be used for a temporary period and that he will 
be transferred to an assignment abroad upon the completion of the temporary services in the 
United States pursuant to 8 C.F.R. § 214.2(1)(3)(vii). For this additional reason, the petition will 
not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all the 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, 1002 n. 9 (2d 
Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
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. 3 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.