dismissed L-1A Case: Media Distribution

U.S. Department of Homela~ld Security 
20  ass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 03 072 53863 Office: CALIFORNIA SERVICE CENTER Date: FL~) 1 8 ED5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101(a)(15)(L) 
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 03 072 53863 
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 nonimrnigrant petition seelung to extend the employment of its marketing and sales 
manager as an L-1A nonimmigrant intracompany transferee pursuant to section IOl(a)(15)(Ld) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of California that is engaged in the import and distribution of videos, compact discs and 
related products. The petitioner claims that it is the subsidiary of the beneficiary's foreign employer, located 
in Seoul, Korea. The petitioner now seeks to extend the beneficiary's employment for three years. 
The director denied the petition concluding that the petitioner had failed to demonstrate: (1) that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity; 
and (2) that a qualifying relationship exists between the beneficiary's foreign employer and the petitioning 
organization. The director specifically noted that the petitioner did not contain the "organizational 
complexity" to support the beneficiary as a manager or executive. 
On appeal, counsel contends that the director erred in his decision that the beneficiary would not be employed 
in a qualifying capacity, stating that the beneficiary "exercises managerial functions not to ordinary 
employees of the company but to the managers of the different departments of the petitioner, i.e. Customer 
Service, Administrative Services and Accounting." Counsel also notes that the applicable statute does not 
require that the petitioner "possess organizational complexity in order that the Beneficiary may qualify as an 
intra-company transferee." Counsel further rejects the director's finding that a parent-subsidiary relationship 
failed to exist between the foreign and United States organizations. Counsel submits a brief and documentary 
evidence in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act, 8 
U.S.C. 4 1101(a)(15)(L). 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. 
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. $ 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 abroad with a 
qualifying organization within the three years preceding the filing of the petition. 
WAC 03 072 53863 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior education, 
training, and employment qualifies hirnlher 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 AAO will first consider the issue of whether the beneficiary would 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. $ 1 lOl(a)(#)(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) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, hnctions at a senior level within the 
organizational hierarchy or with respect to the hction 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)(#)(B) of the Act, 8 U.S.C. $ 1 101 (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 discretionq decision-making; and 
(iv) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
WAC 03 072 53863 
Page 4 
The petitioner filed the instant nonirnmigrant petition on August 21, 2003. In an appended letter, dated 
December 16, 2002, the petitioner provided the following description of the beneficiary's position in the 
United States organization: 
As marketing & sales director, [the beneficiary] has been and will continue to oversee and 
manage the overall U.S. sales & marketing operations of the products; he will continue to 
analyze the market and set strategic planning goals; he will continue to be responsible for the 
hiring, firing and direction of cyber sales management personnel; he will continue to develop 
advertising and promote products in U.S.; he will continue to develop both short-term and 
long-term goals for the company in regard to profit, administration and operations. 
Moreover, he will continue to exercise wide-latitude in discretionary decision making in the 
operation of the marketing & sales department of the U.S. company; and he will continue to 
report to the president s [sic] of the U.S. company with regard to the business operations of 
the marketing & sales department of the U.S. company. 
The petitioner explained that the beneficiary has been instrumental in the development of the United States 
organization, and is needed to further expand the company. 
In the attached documentation, the petitioner submitted a Iist of its five employees, which included the 
company's president, the beneficiary, who is employed as the general manager, a customer service dtpartment 
manager, an administrative manager, and a manager of the accounting department. The petitioner provided a 
list of job duties performed by each worker, and outlined the following job duties for the beneficiary: 
Oversee & manage the overall sales & marketing operations of the products (35%); 
Analyze the market and set strategic planning goals (20%); 
Exercise wide latitude in discretionary decision making (15%); 
Responsible for hiring, firing & direction of cyber sales management personnel (10%); 
Develop advertising and promote products in U.S. (10%); and 
Plan marketing strategy for sales of products (10%). 
The petitioner also submitted documentary evidence, including its Forms DE-6, Quarterly Wage and 
Withholding Report, from the State of California as evidence of employment of the five workers. 
The director issued a request for evidence on February 25, 2003 asking that the petitioner provide the 
following: (1) its organizational chart describing the managerial hierarchy and staffing levels and clearly 
identifying the beneficiary's position in relation to all other employees, particularly the workers subol-dinate to 
the beneficiary; (2) a description of the job duties performed by each worker; and (3) copies of the petitioner's 
payroll summary, and Forms W-2 and W-3 evidencing wages paid to its employees. The director also 
outlined the statutory definition of managerial capacity and requested that the petitioner provide evidence that 
the beneficiary is employed as a manager. 
Counsel responded in a letter dated May 1, 2003, stating that the beneficiary is performing in a managerial 
position "by virtue of supervising and controlling the work of other managerial employees." Counsel stated: 
As general manager of the U.S. compan 
14 
he beneficiary is responsible for 
overseeing and managing overall business opera Ions an activities of the U.S. subsidiary; he 
WAC 03 072 53863 
Page 5 
is responsible for the establishment, direction and coordination of all business activities of 
our company; he establishes policies designed to increase business productivity and sales; 
and he develops both short-term and long-term goals for the company in regard to profit, 
administration and operations; and he exercises wide-latitude in discretionary decision 
making in the operation of the U.S. subsidiary; he has the authority to hire, fire and promote 
the personnel; and [the beneficiary] acts as acting president in lieu of the company president 
during his absence for business trips to overseas. 
Counsel stated that an organizational chart was provided, yet none was included in the record. 
In a decision dated June 18,2003, the director determined that the petitioner had failed to demonstrate that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director noted that each of the three departments under the beneficiary's supervision consists on one 
employee, each labeled as a manager, and noted that a review of the managers' salaries indicates that each is 
working part-time as the wages are "abnormally low." The director concluded that because the managers are 
employed part-time and because there are no other employees in the organization the majority of the 
beneficiary's job duties would not include primarily directing the management of the organization. 
The director also stated that the petitioning organization does not contain "the organizational complexity to 
support [an] additional executive or managerial position." The director stated that the petitioner had failed to 
establish that the beneficiary's daily activities will be primarily managerial or executive, or that the 
beneficiary supervises a staff of professional, managerial or supervisory employees who would relieve him 
from performing the non-qualifying functions of the business. The director concluded that the beneficiary "is 
at best employed as a supervisor." Accordingly, the director denied the petition. 
In an appeal filed on July 21, 2003, counsel explains that the beneficiary is presently holding two positions 
within the company, general manager and manager of the marketing and sales department, which "are 
instrumental in the operation of the company." Counsel states that as the general manager, the beneficiary 
allocates his time in the following manner: 
30% - Responsible for overseeing and managing overall business operations and activities 
of the US subsidiary (Customer Department, Administrative Services and Accounting 
Department) 
20% - Responsible for the establishment, direction and coordination of all business 
activities between the parent company and subsidiary; 
15% - Establish policies designed to increase business productivity and sales; Targeting 
new major accounts and implementing strategic goals and accountability systems; 
20% - Develop both short-term and long-term goals for the company in regard to profit:, 
administration and operations; 
10% - Exercise wide-latitude in discretionary decision making in the operation of the US 
subsidiary; 
5% - Implement a system that will be available to other Marketing and Sales Managers at 
the termination of the temporary employment; including the development and review of 
new mechanisms and procedures for a more efficient system. 
WAC 03 072 53863 
Page 6 
Counsel contends that "[a] cursory reading of the above stated duties of the Beneficiary would reveal that he 
is performing tasks that demand the exercise of [a] high level of discretion." 
Counsel rejects the director's finding that the beneficiary does not qualify as a manager or executive because 
he does not supervise any subordinate personnel who would relieve him from performing non-qualifying 
duties. Counsel notes "there is no minimum number of employees required in order to qualify an employee's 
functions as managerial." Counsel states the beneficiary exercises managerial functions over departmental 
managers, "not to ordinary employees of the company." Counsel also rejects the director's conclusion that the 
department managers are working part-time, and therefore the beneficiary would not be primarily directing 
the management of the company. Counsel states that "there is no requirement that the employees over which 
a manager or executive exercises control must receive a certain wage," and states that the managers are 
compensated through stock options, commissions and bonuses. 
Lastly, counsel contends "there is no requirement that the petitioner must possess organizational complexity 
in order that the Beneficiary may qualify as an intra-company transferee." Counsel notes that the director 
failed to define organizational complexity, and states that if refemng to the corporation's number of 
employees, there is no statute limiting managers or executives to only those who supervise a large number of 
persons or a large organization. Counsel states that a beneficiary may be a functional manager even if he is 
the sole employee of a company where he utilizes independent contractors or where the business is complex. 
Counsel submits on appeal an organizational chart of the United States company and an additional description 
of the job duties performed by each of the five employees of the organization. 
On review, the petitioner has not demonstrated that the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 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 2 14.2(1)(3)(ii). As required in the regulations, the petitioner must submit a detailed description of the executive 
or managerial services to be performed by the beneficiary. Id. 
The record is inconsistent in defining the beneficiary's position and the job duties performed by the 
beneficiary while employed in the United States entity. On the nonimmigrant petition, the petitioner 
identifies the beneficiary as the marketing and sales manager, but subsequently claims on appeal that the 
beneficiary is employed in two capacities: as the general manager and the marketing and sales manager. 
Counsel does not explain on appeal how these two positions differ. More importantly, counsel provides a job 
description for the position of general manager only, and does not outline the specific job duties of the 
beneficiary as the marketing and sales manager that would qualify him as a manager or executive. (2ounsel's 
claim that a cursory reading of the beneficiary's tasks demonstrates "the exercise of high level discretion" is 
insufficient to establish employment in a primarily managerial or executive capacity. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matler of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BL4 1988). 
WAC 03 072 53863 
Page 7 
Additionally, a critical review of the description provided on appeal of the beneficiary's job duties reveals that 
the beneficiary's tasks are identical to the claimed job duties of the company's president. Each position is 
noted to involve the same five job duties, the only difference being a slight variation in the percentage of time 
spent by each individual on a particular job duty. This brings into question the validity of the petitioner's 
claim that the beneficiary is performing the named managerial and executive job duties. Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and suff~ciency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. Again, the 
petitioner is required to resolve any inconsistencies in the record by independent and objective evidence. The 
petitioner has failed to satisfy this crucial requirement. 
Counsel correctly notes on appeal that a complex organizational structure is not required in order for the 
beneficiary to be considered a manager or executive of the petitioning entity. As required by section 
101(a)(44)(C) of the Act, 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. To establish that the reasonable 
needs of the organization justify the beneficiary's job duties, the petitioner must specifically articulate why 
those needs are reasonable in light of its overall purpose and stage of development. In the instant matter, 
counsel does not explain how the reasonable needs of the organization are met through the employment of a 
president and three department managers, yet no lower-level employees. While counsel claims that the 
petitioner utilizes outside contractors and laborers to perform the functions associated with each department, 
the record is devoid of documentary evidence establishing the use of independent contractors. 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). 
While counsel correctly notes on appeal that a beneficiary who is the sole employee may be considered to be 
employed in a qualifying capacity as a functional manager, counsel has not demonstrated that the beneficiary 
in the instant matter qualifies for the claimed position. 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 lOl(a)(#)(A)(ii) of the Act, 8 
U.S.C. 5 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing 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 managing the essential function. In 
addition, the petitioner must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating to the 
function. 
In the instant matter, counsel merely asserts the concept of "hnctional manager," and fails to identify the 
specific organizational function to be managed by the beneficiary. Additionally, as noted previously, 
although counsel contends that the functions of the business are being performed by contractors or laborers 
not directly employed by the petitioning organization, counsel has not documented the use of outside labor by 
the petitioner. The petitioner's 2002 corporate income tax return indicates that no amounts were paid by the 
petitioner during 2002 for outside labor, such as contractors. In addition, the record does not establish that the 
petitioner has other full-time empIoyees who would relieve the beneficiary from performing non-qualifying 
operational and administrative tasks associated with the essential functions of the business. 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 ScientoIogy International, 19 I&:N Dec. 
WAC 03 072 53863 
Page 8 
593,604 (Comrn. 1988). In this matter, the petitioner has not provided evidence that the beneficiary manages 
an essential function. 
Based on the foregoing discussion, the petitioner has failed to demonstrate that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. For this reason, the 
appeal will be dismissed. 
The AAO will next consider whether a qualifying relationship exists between the beneficiary's foreign 
employer and the petitioning organization. 
The pertinent regulations at 8 C.F.R. 9 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) Qualzfiing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(I) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in paragraph 
(I)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other country 
directly or through a parent, branch, affiliate or subsidiary for the duration of the 
alien's stay in the United States as an intracompany transferee; and, 
(3) Otherwise meets the requirements of section lOl(a)(lS)(L) of the Act. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization housed in a different 
location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or. 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half' 
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less 
than half of the entity, but in fact controls the entity. 
(L) Afiliate means 
(I) One of two subsidiaries both of which are owned and controlled by the 
same parent or individual, or 
WAC 03 072 53863 
Page 9 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
The petitioner indicated on tkie nonimmigrant petition that it is a subsidiary of the benefi 
employer as the foreign company owns 60% of the petitioning organization, while an individu 
owns the remaining forty percent. The petitioner submitted copies of two stock certificates reflecting 
eachparty9s respective stock ownership in the organization. The petitioner also provided a 
stock certificate and its stock certificate ledger reflecting a transfer of 400 shares of stock fro 
to its present owne-n May 4,2001. 
In his February 2003 request for evidence, the director questioned the existence of a qualifying relationship 
between the two organizations. The director stated that collectively, the three stock certificates indicate that 
the beneficiary's foreign employer does not own 60% of the petitioner's issued stock. 
r 
In counsel's May 1,2003 response, counsel explained: 
JC 21, hc., the U.S. subsidiary, oGs-40% of the shares of the U.S. company. Prior to May . - 
4, 2001, wned 40% of the shares of the U.S. subsidiary; 
however, he no longer owns any of the shares of the U.S. company. Please see the Stock 
Transfer Led er indicating the date of transfer of 400 shares (40%) - 
from the previous shareholder, which was on May 4,2001. 
three stock certificates with Stock 
had transferred his 40% shares of the U.S. 
president of the U.S. company, on May 4, 200 1. Therefore, 
U.S. subsidiary, m 
the parent company, owns 60% of the shares ands 40% of the shares of the 
h his decision, the director .determined that the petitioner did not establish the existence of a parent- 
subsidiary relationship between the two organizations. The director stated that rior to the Ma 2001 stock 
transfer the stock ownership of the 
or 43%; 400 shares 
00 shares 
or 28%. The director concluded 
that as a result of the transfer of stock from n May 4, 200 1 now owns 800 
shares of the petitioner's 1,400 shares of issued stock, or 56% of the petitioning organization. The director 
stated that the record does not demonstrate that the two companies are owned and controlled by the same 
parent, individual or group of individuals. The director also concluded that the petitioner did not establish an 
affiliate relationship between the two companies. Accordingly, the director denied the petition. 
On appeal, counsel explains tha petitioning organization as a result of 
a stock transfer fro did not subscribe to the originally issued 
stock. Counsel states "[tlherefore, it was not possible for 
ffh 
to possess 400 shares at the time 
of incorporation and acquired another 400 shares from the trans er o s ares on May 4, 2002 as suggested by 
- - 
[Citizenship and Immigration Services (CIS)]." Counsel states that the beneficiary's foreign employer 
WAC 03 072 53863 
Page 10 
remains that majority shareholder of the United States company by virtue of its ownership of 60% of the 
company's outstanding stock. 
On review, the petitioner has established the existence of a parent-subsidiary relationship between the 
beneficiary's foreign employer and the United States entity. It appears the director misinterpreted the 
evidence submitted by counsel in support of the qualifling relationship. The petitioner provided documentary 
evidence, including stock certificates and stock certificate transfer ledger, explaining the relationship between 
the two organizations. The parent-subsidiary relationship is further supported by ownership information 
included in the petitioner's corporate tax return. Therefore, the director's decision pertaining to this issue will 
be withdrawn. 
In visa petition proceedings, the burden of proving eligbility 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. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.