dismissed L-1A Case: Materials Import/Export

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rrn. 3000 
Washington, DC 20529 
inmion of personal privacy 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
File: WAC 07 272 50651 Office: CALIFORNIA SERVICE CENTER Date: 
AUG 2 9 2008 
Petition: 
 Petition for a Nonirnrnigrant Worker Pursuant to Section 1 0 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U. S.C. $ 1 10 1 (a)( 15)(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. 
Administrative Appeals Office 
WAC 07 272 5065 1 
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 appeal will be 
dismissed. 
The petitioner claims to be engaged in material regenerating and imports and exports. It seeks to extend 
the employment of its general manager in the United States as an intracompany transferee pursuant to 
section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1101 (a)(15)(L). The 
petitioner, a California corporation, claims to be the subsidiary of Chinese Regenerating & Reusing 
Resources North Corp., located in Liaoning, China. The beneficiary was initially granted a one-year 
period of stay to open a new office, and the petitioner now seeks to extend the beneficiary's stay for an 
additional two years. 
The director denied the petition, finding that the petitioner had not demonstrated that the beneficiary 
would be employed in the United States in a primarily managerial or executive capacity. Specifically, the 
director noted that based on the evidence submitted, the beneficiary would not function at a senior level 
within the petitioner's organizational hierarchy. 
On appeal, counsel for the petitioner asserts that the decision was arbitrary and that the director 
incorrectly adjudicated the petition under the wrong regulations. Additionally, counsel contends that the 
beneficiary will be in fact acting in a primarily executive capacity, and that the director failed to consider 
the fact that the petitioning entity is still in a start-up phase. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(l S)(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 whlch 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. 
WAC 07 272 50651 
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 him/her to perfom 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. 
This primary issue in this 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 1 Ol(a)(44)(A), defines the term "managerial capacity" as 
an assignment withn 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 frst 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 witlun 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 07 272 50651 
Page 4 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The petitioner filed Form 1-129, Petition for a Nonirnmigrant Worker, on September 19, 2007. In the 
petition, the petitioner indicated that it was established in 2005 and currently employed 5 persons. The 
petitioner claimed that the beneficiary would serve as its general manager. In support of the beneficiary's 
eligibility for the benefit sought, the petitioner submitted the following overview of the beneficiary's 
duties and responsibilities in a letter dated September 17,2007: 
[The beneficiary] will continue to fill the position of General Manager of [the petitioner]. 
Since his arrival in November 2006, he set up most of necessary departments, recruited 
qualified personnel. He has been working on setting corporate policy and corporation 
business direction, securing supply sources and supplier channel, improving materials 
inspection policy and procedure, working hard to meet the first year business plan and 
worlung on three years business forecast. The company currently has three 
department[s:] Operation Department (2), Export & Inspection (1) and Warehouse & 
Shipping (2), plus 3 commission based waste material purchasers. 
[The beneficiary's] job duties on a daily basis will include the following: to ensure 
purchasing and exporting goals are on target and meet company expectations; to deliver 
and secure more supply sources and supplier channel; to actively seek domestic partners 
in waste materials collecting, recycling and processing; to improve quality control and 
export inspection; to monitor effective performance of all departments; to establish and 
maintain effective fmancial policies; establish and maintain effective communication and 
professional business relations[.] [The beneficiary] has been playing an important role in 
coordinating operations of [the petitioner] with those of other components of [the foreign 
entity]. 
[The beneficiary] has first-level managerial authority over all department managers. He 
will oversee all of the company's activities. He will have authority to make personnel 
decisions, including the recruitment and hiring of staff for the firm. While he is working 
with US branch company as the General Manager, he remains the control over the 
operation of the parent company in China. He will effectively supervise and coordinate 
personnel, ensuring optimal performance. 
The director found this evidence insufficient to warrant approval of the petition and consequently issued a 
request for evidence on September 28, 2007. The director requested a more detailed description of the 
beneficiary's duties, as well as an overview of the petitioner's staffing levels, including an organizational 
chart listing all current employees, their position titles, and a complete description of each employee' s 
position. The director also requested documentary evidence proving that the petitioner actually employed 
such persons and the wages paid to such persons, including but not limited to payroll summaries, Forms 
W-2 andlor Forms W-3. 
WAC 07 272 50651 
Page 5 
In response, the petitioner submitted a letter dated December 5, 2007 which provided a more detailed 
overview of the beneficiary's duties. Specifically, the letter indicated the following: 
[The beneficiary] is being offered the position of General Manager of [the petitioner]. He 
has been in this position about one year. Upon his arrival in the United States in 
November 2006, he set up three functional departments, Operation Dept., Import/Export 
Dept. and Shipping Dept. In order to secure the company's store yard and extend 
corporation business, he decided to purchase the ABC Liquidators, which is the lessor of 
the office, warehouse and storage yard of [the petitioner] and it engages in the hotel 
furniture liquidation business. The owner of ABC Liquidators, - is 
working with [the beneficiary] to reorganize this new business into [the petitioner] and he 
has been employed by [the petitioner] since October 2007. Warehouse & Shipping (2), 
plus 3 commission based waste material purchasers. 
The duties of [the beneficiary] in the US company are as follows: 
Set up and supervise the direction, strategy and goal of corporate development, propose 
business development plan and budget, examine and approve financial budget, large 
recycle projects and corporative investment (15%); Oversee the business operation and 
activities of US company (25%); Set up other necessary departments, like Purchasing 
Dept., Liquidation Dept., recruit department managers and more qualified personnel, and 
coordinate with independent purchasers (1 0%); Monitor and follow the marketing trend 
of recycling and regenerating industry, related market and regulation research (10%); 
Develop and secure supply sources and supplier channel; seek domestic partners in 
materials recycling and processing, select and setup transit sites (15%); Analyze and 
decide recycle material categories to export; set and improve materials inspection policy 
and procedure (10%); oversee the business operation and direction of headquarters and 
other branches; coordinate the business activities between headquarters, US branch and 
other branches (1 0%); Other managerial activities (5%). 
The petitioner also submitted an organizational chart with the response, which indicated that the 
beneficiary, as CEO and General Manager, oversaw the following employees: 
Corporate S ecretaryhlepartment Manager of the Operations 
Department 
, Department Manager of the ImportIExport Department 
Department Manager of the WarehouseiShlpping 
Department 
of ABC Liquidators and the Liquidation Department 
The chart also indicated that whose title is unspecified, worked directly under, and 
an additional, unidentified "independent purchaser" also works under the supervision of the beneficiary. 
WAC 07 272 5065 1 
Page 6 
The petitioner also submitted documentation in the form of payroll records, tax returns, quarterly wage 
reports, and a Form W-3, Transmittal of Wage and Tax Statements, for 2006. The Form W-3 indicated 
that the petitioner paid $6,000 in salaries during 2006. A review of the petitioner's Form 1120, U.S. 
Corporation Income Tax Retum, for 2006 further indicated that this $6,000 did not represent wages or 
salaries paid to employees but rather compensation of officers. Further review indicates that the 
beneficiary was the recipient of this money. 
Also submitted for review is the petitioner's Form 941, Employer's Quarterly Federal Tax Return and 
California Form DE-6, Quarterly Wage and Withholding Report, for the quarter ending September 30, 
2007. It indicates that the petitioner paid wages to the beneficiary and six other employees, two of which 
are not listed as employees on the organizational chart. Furthermore, it is noted that the petitioner's 
alleged operations department manager is not listed as an employee on the From DE-6. 
On January 3,2008, the director denied the petition. The director found that given the current structure of 
the petitioner, it did not have a reasonable need or the organizational complexity for the beneficiary to be 
employed in a primarily executive or managerial capacity. 
On appeal, counsel asserts that the director's decision is in error, and specifically cites to the director's 
erroneous reliance on 8 C.F.R. 5 204.5@(4)(ii). Counsel contends that the beneficiary is in fact a 
qualified executive and urges reconsideration of the petition. 
The AAO, upon review of the record of proceeding, concurs with the director's finding. 
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). In this case, the petitioner 
vaguely described the beneficiary's duties but failed to provide a specific overview of how he will reffain 
from performing non-qualifying tasks. The two letters submitted by the petitioner which outline the 
beneficiary's duties and role in the company provide a generic and at times an incomprehensive overview 
of the beneficiary's job duties. For example, while the letter submitted in response to the request for 
evidence includes the percentage of time the beneficiary will devote to each stated task, several 
descriptions, such as "other managerial activities" and "oversee the business operation and activities of 
US company" are too vague to decipher in terms of the day-to-day activities in which the beneficiary will 
engage. Moreover, the AAO notes that the statements provided give no insight on the nature of the 
beneficiary's daily tasks. 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 answer a critical question in this case: What does the beneficiary 
primarily do on a daily basis? The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 
1990). 
Furthermore, the petitioner indicated in its September 17, 2007 letter that some of the beneficiary's tasks 
included delivering and securing more supply sources and supplier channels, actively seeking domestic 
partners in waste materials collecting, recycling and processing, and improving quality control and export 
WAC 07 272 50651 
Page 7 
inspection. 
 Again, this overview is not entirely clear in its description of the beneficiary's tasks. 
However, it can be concluded that tasks such as "actively seeking domestic partners in waste materials 
collecting" are not typically the tasks of someone employed in a primarily executive capacity, as alleged 
by counsel. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 101 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 
(Cornm. 1988). Since it is claimed that material regeneration is the primary focus of the petitioner's 
business, it appears that tasks such as these are necessary to provide the petitioner's services. 
Additionally, the director reviewed the staffing levels and reasonable needs of the petitioner in rendering 
the denial in this matter. Counsel correctly observes that the director incorrectly cited to the regulation at 
8 C.F.R. $ 204.50)(4)(ii) when discussing staffing levels and reasonable needs on page 3 of the decision. 
While the AAO agrees that this provision is not the applicable regulation for nonimmigrant petitions, the 
director's error is harmless in that the language contained therein is also applicable to the instant case, as 
discussed in Wher detail below. 
Pursuant to section 101 (a)(44)(C) of the Act, 8 U.S.C. $ 1 101 (a)(44)(C), if staffing levels are used as a 
factor in determining whether an individual is acting in a managerial or executive capacity, CIS must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. In the present matter, the regulations provide strict evidentiary 
requirements for the extension of a "new office" petition and require CIS to examine the organizational 
structure and staffing levels of the petitioner. See 8 C.F.R. $ 214.2(1)(14)(ii)(D). The regulation at 8 
C.F.R. 9 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of the 
petition to support an executive or managerial position. There is no provision in CIS regulations that 
allows for an extension of this one-year period. If the business does not have sufficient staffing after one 
year to relieve the beneficiary from primarily performing operational and administrative tasks, the 
petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has not reached 
the point that it can employ the beneficiary in a predominantly managerial or executive position for 
several reasons. 
First, as discussed above, the description of duties for the beneficiary, coupled with the minimal 
information pertaining to his subordinates and the manner in whlch they will relieve the beneficiary from 
engaging in non-qualifying tasks, is insufficient for purposes of this classification. More importantly, 
however, is the actual structure of the petitioner. In the request for evidence, the petitioner was 
specifically requested to submit evidence of wages paid to hs staff during the first year of operations. In 
response, the petitioner submitted evidence that the beneficiary received $6,000 as officer compensation 
(no wages) and that it began paying wages to employees in the second quarter of 2007. It should be noted 
that the beneficiary's initial period of stay commenced on October 19, 2006 and expired on October 1, 
2007. 
To establish that the petitioner has staffed the new operation in the previous year, the petitioner must 
submit a description of staffing, including the number of employees and the types of positions, as well as 
evidence of the wages paid to the employees. 8 C.F.R. $ 21 4.2(1)(14)(ii)@). The petitioner submitted a 
WAC 07 272 50651 
Page 8 
document in which it provided employee information, such as position details, date of hlre, and duties. 
From this chart, the AAO notes the following relative informat ion pertaining to the petitioner' s 
employees: 
Name: - 
Job Title: Department Manager (Corporate Secretary) 
Educational Level: University 
Employment Period: 1212005 to Present 
Name: - 
Job Title: Administrative Assistant 
Educational Level: University 
Employment Period: 1 010 112007 to Present 
Job Title: IT Specialist 
Educational Level: University 
Employment Period: 6/1/2007 to 913012007 
Name: 0 
Job Title: Department Manager 
Educational Level: University 
Employment Period: 0410 1 /2007 to Present 
Job Title: Worker 
Educational Level: High School 
Employment Period: 0610 112007 to 0913012007 
Job Title: Department Manager 
Educational Level: University 
Employment Period: 0410 112007 to Present 
Job Title: Department Manager 
Educational Level: High School 
Employment Period: 1 010 112007 to Present 
Upon review, it appears that IT Specialist, and 
 Worker, left the 
petitioner's employ on September 30, 2007. Therefore, based on the petitioner's information, the 
company employed five persons at the time of filing. The petitioner's Form DE-6 for the third quarter of 
2007 confirms the employment of five employees. 
WAC 07 272 5065 1 
Page 9 
However, the department manager of operations, 
 is not listed on this form. It is noted that on 
the list accompanying the petitioner's organizational chart, it claims that 
 is paid by 
"cornmission plus performance bonus." However, the petitioner has not presented evidence to document 
the existence of this employee nor identified the services this individual provides. Without documentary 
evidence to support its statements, the petitioner does not meet its burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998). 
In addition, the petitioner indicates that all of the current employees discussed above, except for Mr. 
tended university. Moreover, it is noted that aside from the remaining four employees 
possess the title of "Department Manager." 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 5 1 0 1 (a)(44)(A)(ii) of the 
Act. 
In evaluating whether the beneficiary manages professional employees, the AA0 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. $ 1 10 1 (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 slull, 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 (Cornm. 
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 subordinate employee. The possession of a bachelor's degree by a subordinate employee, or, as 
here, the claim that the employee has attended university, 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 case, 
the petitioner has not, in fact, established that a bachelor's degree is actually necessary, for example, to 
perform the work of the administrative assistant or of any of the four other department managers. 
In addition, the petitioner has likewise failed to show that any of these 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. Although four of the five claimed subordinates possess the title 
of 'department manager," this alone is insufficient to establish that they are managerial or supervisory 
employees. An employee will not be considered to be a supervisor simply because of a job title. 
Moreover, a review of the organizational chart indicates that despite the managerial titles held by these 
employees, they do not supervise subordinate staff nor has the petitioner established that they manage a 
dedicated function of the petitioner. Thus, the petitioner has not shown that the beneficiary's subordinate 
employees are supervisory, professional, or managerial, as required by section 1 0 1 (a)(44)(A)(ii) of the 
Act. 
Absent evidence to the contrary, it does not appear that the beneficiary will be primarily performing 
managerial or executive duties. As stated above, an employee will not be considered to be a supervisor 
WAC 07 272 5065 1 
Page 10 
simply because of a job title, because he or she is arbitrarily placed on an organizational chart in a 
position superior to another employee, or even because he or she supervises daily work activities and 
assignments. Rather, the employee must be shown to possess some significant degree of control or 
authority over the employment of subordinates. Given the size and nature of the vaguely described 
material regenerating business, it is more likely than not that the beneficiary and his proposed subordinate 
managers will all primarily perform the tasks necessary to the operation of the business. See genera4 
Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 13 13 (9th Cir. 2006). Therefore, it 
appears that the beneficiary will be, at most, a first-line supervisor of non-professional employees. A 
managerial or executive employee must have authority over day-to-day operations beyond the level 
normally vested in a first-line supervisor. See 101(a)(44) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
The record does not establish that a majority of the beneficiary's duties have been or will be primarily 
directing the management of the organization. The petitioner has not demonstrated that it has reached or 
will reach a level of organizational complexity wherein the hiring/firing of personnel, discretionary 
decision-making, and setting company goals and policies constitutes significant components of the duties 
performed by the beneficiav on a day-to-day basis. For thls reason, the petition may not be approved. 
Beyond the decision of the director, a question exists with regard to the claimed qualifying relationship 
between the petitioner and the claimed foreign parent. See 8 C.F.R. 8 214.2(1)(3)(1). On Form I- 129, the 
petitioner claims that it is owned in its entirety by the foreign entity. In support of this contention, the 
record contains a stock certificate, stock ledger, and the articles of incorporation for the petitioner, whlch 
indicate that the foreign corporation owns all outstanding shares issued in the petitioner. 
A review of the petitioner's Form 1 120 for 2006, however, indicates that the beneficiary, as an individual, 
claims to be the sole shareholder in the petitioner. If the beneficiary is the majority owner of the foreign 
entity, then the companies would be deemed affiliates and a qualifying relationship would be deemed to 
exist. However, the record contains no documentation pertaining to the ownership of the foreign entity, 
and the fact that the petitioner's 2006 tax return lists the beneficiary, as an individual, as its sole owner, 
creates unresolved questions. Again, 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. at 591-92. Absent evidence of the ownership of the foreign entity, it 
cannot be determined whether a qualifying relationship exists between the parties. For this additional 
reason, the petition may 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 of 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), 
afd. 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff 
WAC 07 272 5065 1 
Page 11 
can succeed on a challenge only if she shows that the AAO abused it discretion with respect to all of the 
AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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.