dismissed L-1A Case: Marketing Consultancy

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigratiorl 
Services 
FILE: WAC 02 272 53182 Office: CALIFORNIA SERVICE CENTERDate: AUG 1 1 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1101(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. 
2P 
h d Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 02 272 53 182 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service 
Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The ~etitioner is described as a marketing consultancy business. According to the docu~mentary 
incorporated in 1999 and claims to be a 
subsidiary of located in Verona, Italy. It seeks to extend its 
United States as its company director for a 
period of one year, and at a monthly salary of $2,000.00. 
The director determined that the petitioner had not submitted sufficient evidence to demons1:rate that 
the beneficiary will be employed primarily in a managerial or executive capacity with the U.S. 
entity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary will 
be employed primarily in a managerial or executive capacity. 
To establish L-1 eligibility under section lOl(a)(15)(L) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three 
years preceding the beneficiary's application for admission into the United States, has been 
employed abroad in a qualifying managerial or executive capacity, or in a capacity iinvolving 
specialized knowledge, for one continuous year by a qualifying organization and seeks to enter the 
United States temporarily in order to continue to render his or her services to the same employer or a 
subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized 
knowledge. 
The regulation at 8 C.F.R. 3 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of 
his or her application for admission into the Unite States, has been employed abroad 
continuously for one year by a firm or corporation or other legal entity or parent, branch, 
affiliate, or subsidiary thereof, and who seeks to enter the United States temporarily in 
order to render his or her services to a branch of the same employer or a parent, affiliate, 
or subsidiary thereof in a capacity that is managerial, executive or involves specializeid 
knowledge. 
The regulation at 8 C.F.R. 3 214.2(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 paragrapln 
(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. 
WAC 02 272 53182 
Page 3 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) 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 hidher 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. 
Section lOl(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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 organization;il 
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 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; 
(ii) Establishes the goals and policies of the organization, component, or function[; 
(iii) Exercises wide latitude in discretionary decision-making; and 
WAC 02 272 53 182 
Page 4 
(iv) Receives only general supervision or direction from higher-level executive:;, 
the board of directors, or stockholders of the organization. 
The petitioner stated in the petition that the beneficiary's proposed job duties would consist of 
overseeing all of the company business, including the marketing and new business aspec'ts of the 
business. 
In response to the director's request for additional evidence, the petitioner stated that it had no 
employees other than the beneficiary at the time of filing the petition due to the lack of business 
development to the level initially projected and the nature of the business as a consultancy. The 
petitioner further stated that the beneficiary's duties consisted of: planning and developing policies five 
percent of the time; directing legal affairs one percent of the time; planning and supervising marketing 
ten percent of the time; and supervising financial matters five percent of the time. The petitioner also 
stated that the remainder of the beneficiary's time is devoted to providing consultancy senrices and 
promotional activities pursuant to contractual agreements. 
The petitioner submitted a copy of its IRS Form 1120, Corporate Income Tax Return for 2001. The 
petitioner also submitted a dated October 15, 2002, and a 
contractual agreement between dated November 7,2002. 
The director stated that since the evidence shows that the U.S. office employs only the beneficiary, 
he was not persuaded that the beneficiary's duties in that position would be primarily those of an 
executive or manager. The director further stated that it appeared from the record that the 
beneficiary would be engaged primarily in the day-to-day operations of the business itself. The 
director noted that the U.S. entity's IRS Form 1120 did not show that there was any compensation 
given to officers in 2001. 
On appeal, counsel argues that the company has recently hired a sales representative. Counsel also 
argues that there is no evidence in the IRS Form 1120 of compensation to officers for 2001 because 
the U.S. entity is subsidized by the foreign entity. Counsel further argues that the beneficiary has the 
power and authority to open business accounts, sign business documents, establish goals, and direct 
all of the components of the U.S. company. 
On appeal the petitioner submits a letter dated February 3, 2003, in which the foreign entity's 
representative paraphrases the definitions of managerial and executive capacity in describing the 
duties of the beneficiary. In a letter of employment dated December 23, 2002, the petitioner 
describes the beneficiary's proposed duties to include the promotion of major distributor's and 
general contractor's products. The letter also states that the beneficiary will be involved in 
promoting the products of architects and specified major projects. 
The petitioner submitted an affidavit of support and recognition dated February 3, 2003. The 
petitioner also submitted copies of its invoices dated November 29, 2002 through January 27, 2003, 
and a resume depicting the newly hired sales representative's work history. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary 
will be employed in a primarily managerial or executive position. When examining the executive or 
managerial capacity qf the beneficiary, the AAO will look first to the petitioner's description of the 
WAC 02 272 53 182 
Page 5 
job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). Two elements generally characterize an exec:utive or 
managerial position; first, the position must involve significant authority by the beneficiary over 
generalized policy of the organization or a major division thereof, and second, there must be a 
showing that most of the beneficiary's duties are managerial or executive in capacity. 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 must specifically state whether the beneficiary is primarily employed in a managerial 
or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. 
The petitioner has not provided a comprehensive description of the beneficiary's purported job 
duties. The beneficiary's position description is too general and broad to establish that the 
preponderance of her duties will be managerial or executive in nature. The following duties are 
without any context in which to reach a determination as to whether they would be qualifying as 
managerial or executive: planning and developing policies, directing legal affairs, planning and 
supervising marketing, and supervising financial matters. Further, there is insufficient detail 
regarding the actual duties of the assignment to overcome the objectives of the director. 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). In intracompany transferee matters the actual duties, themselves, reveal the true 
nature of the employment. Id. at 1108. 
The petitioner has not demonstrated that the beneficiary will be primarily supervising a subordinate 
staff of professional, managerial, or supervisory personnel who can relieve him from performing 
non-qualifying duties, The record establishes that the U.S. entity employed only the beneficiary at 
the time the petition was filed. In addition, the petitioner admits that the U.S. company had only 
one employee at the time the petition was filed. Although counsel states on appeal tha.t a sales 
representative has recently been hired by the U.S. entity, the regulations affirmatively :require a 
petitioner to establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 
C.F.R. $ 103.2(b)(12). The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). 
The record does not establish that a majority of the beneficiary's duties will be primarily directing 
the management of the organization. The record indicates that primarily the beneficiary's duties 
have consisted and will consist of maintaining the business operations, including marketing and 
sales. However, the petitioner has not demonstrated that it has reached or will reach a. level of 
organizational complexity wherein the hiring and firing of personnel, discretionary decision making, 
and setting company goals and policies constitute significant components of the duties performed by 
the beneficiary on a day-to-day basis. Nor does the record demonstrate that the beneficiary primarily 
manages an essential function of the organization. The record reflects that 5 percent of the 
beneficiary's time will be devoted to planning and developing policies; 1 percent to directing legal 
affairs; 10 percent to planning and supervising marketing; 5 percent to supervising financial matters; 
and the remainder of the time to be devoted to servicing the company contracts. 
Although the petitioner stated that the beneficiary would primarily have discretionary decision- 
making authority over the business affairs of the corporation, the record does not specifica.11~ detail 
WAC 02 272 53182 
Page 6 
how the beneficiary is to perform these duties. Based upon evidence submitted on the record, it 
appears that the beneficiary will be performing the functions of the U.S. entity rather than managing 
a function or major division of the organization. An employee who primarily performs fhe 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). The record indicates that a preponderance of the beneficiary's duties have been 
and will be directly providing the services of the organization. For this reason, the petition may not 
be approved. 
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. The petitioner has not sustained that 
burden. 
ORDER: The appeal is dismissed.