dismissed L-1A Case: Marketing And Sales

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
PUBLIC Copy 
U.S. Citizenship 
and Immigration 
File: WAC 05 003 50307 Office: CALIFORNIA SERVICE CENTER Date: SEP 0 6 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101(a)(l5)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
4:- 
~b&rt P. Wiemann, Chief 
Administrative Appeals Office 
WAC 05 003 50307 
Page 2 
DISCUSSION: The Director, California 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 visa petition seelung to extend the employment of its president as an L- 
1A nonimmigrant intracompany transferee pursuant to section 1 O 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of ~alifomia' and is engaged in the business of marketing and selling metallized and coated films, 
paper, board, and metallic yam manufactured by 
 in New Delhi, India. The petitioner also 
claims a qualifying relationship with a e ene lciary was initially granted a one-year period 
of stay to open a new office in the United States and then granted a two-year extension. The petitioner now 
seeks to extend the beneficiary's stay for an additional three years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary is 
employed in the United States 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 erred in 
denying the petition and that the evidence on record establishes that the beneficiary will be employed in a 
managerial or executive capacity. In support of its appeal, the petitioner submits a brief specifically 
identifying those errors allegedly made by the director in denying the petition. 
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. 5 214.2(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 (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. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
1 
 It should be noted that the petitione 
County, California, for 
proper party in interest. 
WAC 05 003 50307 
Page 3 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher 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 regulation at 8 C.F.R. 8 214.2(1)(14)(i) also provides that a visa petition may be extended by filing a new 
Form 1-129. The petitioner does not need to supply supporting documentation unless requested by the 
director. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101 (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 10 1 (a)(44)(B) of the Act, 8 U.S.C. tj 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; 
WAC 05 003 50307 
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(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. 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of 
the Act. While the petitioner implies in its Form I-290B that the beneficiary may be acting as both, the initial 
support letter dated September 28, 2004, and the conclusion in the petitioner's appellate brief emphasize the 
managerial aspects of the beneficiary's role. A petitioner must clearly describe the duties to be performed by 
the beneficiary and indicate whether such duties are either in an executive or managerial capacity. The 
petitioner must demonstrate that the beneficiary's responsibilities will meet the requirements of one or the 
other capacity. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on 
partial sections of the two statutory definitions. Given the ambiguity, the AAO will analyze the appeal as if 
the petitioner is arguing that the beneficiary is acting either in a managerial or executive capacity. 
In the support letter dated September 28, 2004, attached to the initial petition, the petitioner described the 
beneficiary's job duties as follows: 
Perform General Management Activities: 
 50% time spent per week 
These include the overseeing of overall operations and setting policies and 
procedures for: 
Business development, marketing and expanding the organization by effectively 
marketing metallized and coated film, yard and boards; 
Directing management staff to coordinate with consultants, customers, vendors 
and the production center in the Indian company to effectively translate the needs 
of customers into deliverable products; 
Hiring, management, and firing of all employees/contractors, setting policies to 
control and assign work to them, as well as overseeing their work. 
Financial Management: 
 25% time spent per week 
Setting the budget for expenditure and monitoring the performance and 
profitability of the company; 
Setting and implementing policies to control overhead costs; 
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Personal Training: 
 25% time spent per week 
Develop a training program for employees to improve their skills; 
Hiring technical consultants, who are industry experts to augment the company's 
know-how as well as train employees. 
The support letter further explains that the beneficiary supervises "around 11 professional employees" with 
the goal of hiring more and with the clarification that six of the eleven are "hired on contract." 
The petitioner also included an organizational chart for the petitioner showing the petitioner at the top of the 
organization with supervisory responsibility over eleven people (three "managers," two "associates," and six 
"sales engineers"). The two "associates" and the six "sales engineers" all report, according to the chart, to at 
least one of the three "managers" who, in turn, report to the beneficiary. 
Finally, the petition included a table describing the educational level and job responsibilities of all the 
employees, including the three "managers." 
 All three "managers" hold master's degrees. 
 The finance 
manager's duties are described as "[mlanage finance and corporate issues [and alssist President on joint 
ventures and alliances." The operations manager's duties are described as "[mlanage all operations and 
supply-chain [and cloordinate with parent company for supplies.2 The business development manager's 
duties are described as "[mlanage product [and] market development[; mlanage and coordinate sales 
engineers team[; and mlanage customer relations." 
On October 14, 2004, the director requested additional evidence. Title 8 C.F.R. 5 214.2(1)(14)(i) specifically 
permits the director to request supporting documentation in the context of an L-1 extension petition. The 
director requested, inter alia, the number of people employed by the petitioner and a copy of an 
organizational chart describing the petitioner's managerial hierarchy and staffing levels as follows: 
The chart should include the current names of all executives, managers, supervisors and 
number of employees within each department or subdivision. Clearly identify the 
beneficiary's position in the chart and list all employees under the beneficiary's 
supervision by name and job title. Also include a brief description of the job duties, 
educational level, annual salaries/wages for all employees under the beneficiary's 
supervision. 
In response, the petitioner supplied the same organizational chart and job description table supplied with the 
original petition. 
' The offer letter to 
 the current operations manager, also describes his duties as follows: 
"Your job responsibilities will include managing all administrative activities including that of independent 
contractors for functions such as accounts, payroll, and logistics. You will also be required to communicate 
with all agencies, customers and suppliers, as well as our parent company in India to ensure that all functions 
from order processing to delivery are adequately managed and performed." 
WAC 05 003 50307 
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The director also requested "evidence that the beneficiary 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." 
In response, the petitioner again referred to the organizational chart. It also provided copies of contracts, 
promotion letters, and email communications signed or sent in the beneficiary's capacity as president as well 
as copies of the beneficiary's credentials and an 
 record as an entrepreneur. One of the 
letters, dated May 24,2004, purports to promote 
 to the position of Business Development 
Manager and therein describes her duties as 
 with the sales engineer team and to 
manage customer relations." The email communications are generally between the beneficiary and the so- 
called "sales engineers." 
On January 6, 2005, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director determined: 
It is concluded that the record contains insufficient evidence to demonstrate that the 
beneficiary will be employed in a managerial or executive capacity. The record indicates 
that a preponderance of the beneficiary's duties will be directly providing the services of 
the business. The record does not establish that the U.S. entity contains the 
organizational complexity to support additional executive or managerial position [sic]. 
Regarding the claimed managerial duties, the evidence fails to establish that the 
beneficiary's daily activities or the specific scope and nature of the beneficiary's 
activities will be primarily managerial or executive. Further, the petitioner's evidence is 
not persuasive in establishing that the beneficiary will be managing a subordinate staff of 
professional, managerial, or supervisory personnel who relieve him fiom performing non- 
qualifying duties. As such, the beneficiary's duties will not be primarily managerial or 
executive as defined above. 
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive or manager. 
The petitioner argues in its supporting brief that the director's decision was in error for, inter alia, failing to 
recognize that the beneficiary is managing a subordinate staff of professionals, that the beneficiary is 
occupying a primarily managerial capacity, and that he is managing other managers. 
Upon review, petitioner's assertions are not persuasive. 
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. 5 214.2(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. As explained above, a petitioner cannot claim that some of 
the duties of the position entail executive responsibilities, while other duties are managerial. A beneficiary 
may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two 
statutory definitions. 
WAC 05 003 50307 
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The petitioner has failed to prove that the beneficiary will act in a "managerial" capacity by managing a 
department, subdivision, function, or component of the organization. In support of its petition, the petitioner 
has provided a vague and nonspecific description of the beneficiary's duties that fails to demonstrate what the 
beneficiary does on a day-to-day basis. The job description states that he is primarily engaged in "general 
management activities," which include business development, marketing, directing management staff, and 
setting policies to control and assign work to employees and contractors. However, the petitioner did not 
define these terms. The only evidence provided by the petitioner was an organizational chart showing the 
beneficiary at the top; vague job descriptions for his subordinates; copies of contracts, promotion letters, and 
email communications signed or sent in the beneficiary's capacity as president; copies of the beneficiary's 
credentials; and an explanation of his track record as an entrepreneur. The only evidence of the beneficiary 
exercising management responsibilities is the set of emails apparently directing his sales staff. 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. Comm. 1972). 
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. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). 
The petitioner also failed to prove that the beneficiary "supervises and controls the work of other supervisory, 
professional, or managerial employees." According to the petition, the beneficiary is directly supervising 
three "managers." However, the job descriptions for these employees were either too vague to ascertain what 
they do on a day-to-day basis or, in the case of the business development manager, not provided at all except 
in the context of the promotion letter dated May 24, 2004, further described above. For example, the 
operations manager is depicted in the organizational chart as managing no one in the U.S. operation and is 
described as managing "all operations," the supply chain, and administrative activities such as accounts, 
payroll, and logistics. Likewise, the finance manager is described as supervising an administrative associate, 
which appears to be a clerical employee, and a contract accountant. Again, this employee was given a job 
description ("manage finance and corporate issues"), which is so vague that it is impossible to determine what 
this employee does on a day-to-day basis. 
Finally, while the petitioner claims that the "sales engineers" are supervised by the Business Development 
Manager, this allegation is not supported by the evidence. Not only does the promotion letter outlining the 
duties of the Business Development Manager fail to state that her duties will include supervising the "sales 
engineers," but the series of emails submitted by the petitioner are evidence that the beneficiary directly 
supervises these contractors/employees. The emails are sent directly to the "sales engineers," and there is no 
evidence that their claimed supervisor was ever copied on any of this correspondence. Therefore, the evidence 
leads to the conclusion that the beneficiary directly supervises the "sales engineers" and that the business 
development manager, who received less than $5,000.00 in reported income from the petitioner in 2003, does 
not play a supervisory role. This conclusion was essentially adopted by counsel to the petitioner in his 
response to the director's request for evidence dated November 15, 2004: "Exhibit C contains email 
communications to the contractors from the beneficiary, who assigns them work and closely supervises their 
day-to-day functioning." 
WAC 05 003 50307 
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In view of the above, the beneficiary would appear to be a first line supervisor, which would not be sufficient 
to support an L-1A manager, andlor the provider of actual services. 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 
Intl., 19 I&N Dec. 593, 604 (Comm. 1988). A managerial or executive employee must have authority over 
day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised 
employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology Intl., 19 
I&N Dec. at 604. 
However, the fact that the beneficiary supervises the "sales engineers" and the three "managers" would not 
necessarily disqualify him as a managerial employee if the petitioner can prove that the "sales engineers" 
and/or the other employees are "professional" 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 lOl(a)(32) of the Act, 8 U.S.C. 9 
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. 81 7 (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 degrees held 
by the subordinate employees. The possession of a bachelor's, or even a master's, degree by a subordinate 
employee does not automatically lead to the conclusion that the employee is employed in a professional 
capacity as that term is defined above. In the instant case, the petitioner has not, in fact, established that a 
bachelor's degree is actually necessary to perform any of the jobs described in the petition. Not only are the 
managers' job descriptions so vague that it is often impossible to determine what they do on a day-to-day 
basis, but the information provided for the "sales engineers" is insufficient to prove that these employees are 
professionals. Sales agents and their associated duties are not the duties of a professional within the meaning 
of Section 101(a)(32). The fact that the agents must master technical jargon and deal with customers who are 
highly educated does not mean that a bachelor's degree is required for entry into this field. The petitioner has 
failed to provide any evidence supporting its contention that a bachelor's degree is required to be one of its 
sales agents. Therefore, the petitioner has not proven that the beneficiary is managing professional 
employees. 
Furthermore, the petitioner has not proven that the beneficiary will manage an "essential function" of the 
organization. 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. 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 written job description that clearly describes the duties to be performed 
WAC 05 003 50307 
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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. fj 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. 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 capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 
(Table), 1995 WL 576839 (9th Cir, 1995) (citing Matter of Church Scientology Intl., 19 I&N Dec. at 604). 
The petitioner's vague job description fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as managerial, but it fails to define them with enough specificity to determine which functions are 
being managed and which functions are being performed directly by the beneficiary. This failure of 
documentation is important because several of the beneficiary's daily tasks, such as marketing and budgeting, 
do not fall directly under traditional managerial duties as defined in the statute. Absent a clear and credible 
breakdown of the time spent by the beneficiary performing his duties with more specificity, the AAO cannot 
determine what proportion of his duties would be managerial, nor can it deduce whether the beneficiary is 
primarily performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. 
Supp. 2d 22, 24 (D.D.C. 1999). 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. Comm. 1972). 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, afd, 905 F.2d 41. In 
this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
Similarly, the petitioner has failed to prove that the beneficiary has been or will act in an "executive" capacity. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. 
 Section 101(a)(44)(B) of the Act. 
 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 managerial 
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-day 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 making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. As indicated above, while the 
petitioner may have provided a vague job description which reiterates the regulations, the petitioner has failed 
to prove that the beneficiary, who is apparently acting as a front-line manager, will be acting primarily in an 
executive capacity. 
It is appropriate for Citizenship and Immigration Services (CIS) 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 
WAC 05 003 50307 
Page 10 
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). 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity as required by 8 C.F.R. 8 214.2(1)(3). 
Despite any number of previously approved petitions, CIS does not have any authority to confer an 
immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 
291 of the Act, 8 U.S.C. 5 1361. The prior approvals do not preclude CIS from denying an extension of the 
original visa based on reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Therefore, even though the petitioner was successful in the 
past in petitioning for the beneficiary, the director properly denied the petition in this case. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.