dismissed L-1A Case: Medical Devices

U.S. Department of Homcland Security 
20 Massachuse~ts rlre.. NU:. RIII. A3012 
washing tot^. I)C' 20529 
U.S. Citizenship 
and, Immigration 
File: Office: TEXAS SERVICE CENTER Date: t(fi \q la 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(] 5)(L) df the Immigration 
and Nationality Act. 8 U.S.C. $ 1 101 (a)(1 5)(14) 
IN BEHALF OF PEI'I'T'IONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Of'fice in your case. All documet~ts have bccn returned to 
the office that orig~nally decided your case. Any further inquiry must be made to that office. 
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DISCUSSION: The Director, Texas Service Center. denied the petition for a nonin~~n~grant vlsa. The matter 
IS now before the Admtnlstrative Appeals Office (AAO) on appeal. The AAO will dism~ss the appeal 
The petitioner filed this ionimmigrant petitio" seekine to employee tlie beneficiary as its Chief Executive 
OfficerIGeneral Manager as an L-IA nonimmigrant intracompany transferee pursuant to section 
IOl(a)(15)(L) of the immigration and Nationality Act (tlie Act), 8 U.S.C. I/ 1 101(a)(15)(L). l'he petitioner is 
a corporation organized in the State of Florida that is engaged in the import and export of medical devices and 
equipment. I-he petitioner clairns that it is the subsidiary of. located in Rraril. 
The beneficiary is currently employed by the petitioner in H-I R status. and the petitioner seeks to cl~angc his 
status to L- I A and extend his stay for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily rnanagerial 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 revlew. On appeal. counsel for the petitioner asserts that the beneficia~ 
possesses extensive managerial and executive skills, and his duties will require managing subordinatcs who 
will carry out the day-to-day operations of the petitioner. In support of these assert~ons, counsel submits a 
statement, additional evidence. and a previoitsly submitted document 
TO establish eligibility for the:L-1 nonirnmigrant visa classification. the petitioner must meet the criteria 
outlined in section IOI(a)(15)(L) of the Act. Specifically. a qualifying organization must have employed the 
beneficiary in a qualifying managerial or esecutive capacity, or in a specialized knowledge capacity. for one 
continuous year within three years preceding the beneficiary-s application for admission into tl!e United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same e~nplo~er or a subsidiary or affiliate thereof in a managerial, executive. or 
specialized knowledge capaciti. 
The regillation at 8 C.F.K. tj 214.2(1)(3) states that an irldividual petltion filed on Form 1-199 shall be 
accornpanled by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alierl arc qualifying organizations as defined in paragraph (I)(I)(ri)(G) of this section. 
(ii) Evidence that the alien will be employed in an esecutlve. managerial. or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iil) Evidence that the alien has at least one continuous year of full time employr~lerit 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(IC) Evidence that the alien's prior )car of cmploymcnt abroad was In a posttion that was 
manager~al. executive or involved specialized knoccledge and that the allen's prlor 
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education. training, and employment qualifies himlher 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 Issue in the present matter IS whether the beneficiary will be ernployed by the United States entity in a 
primarily managerlal or executive capacity. 
Section 10 1 (a)(44)(A) of the Act. 8 U.S.C. 4 I I0 l(a)(44)(A). defines the term "lnanagerial capacity" as an 
assignment within an organization in which the employee primarily: 
I, 
(i) manages the organization, or a department. subdivision. fiinction, or cornponcnt 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; 
(iir) 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 enlployee is directly supervised, 
functions at a senior level within the organizational hierarchy or \%ith 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 
I * actang in a managerial capacity merely by virtue of the supervisofs supervisory 
duties unless the employees supewised are professional. 
Scction IOl(a)(44)(B) of the Act, 8 U.S.C tj 1 I Ol(a)(44)(B). defines the term "executi\e capacity" as an 
astgnment within an organiration in which the employee primarily: 
(i) . directs the rnanagemcnt 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) elercises wrde latitude In discretionary decision making: and 
(IV) receives only general supcrvision or direction from higher level e\ecutives. the board 
of directors. or stockholders of the organrzation. 
In a letter submitted with the ifiitial petition on November 28, 3003. the ~etitloner descrrbed the be~leficlary's 
job duties as follows: 
[The beneficiary] will provide tlie proper and necessary guidance that is essential to the 
development and expansion of thc company's operations. ~e will o"ersee the company's 
entire business devclopment, including financial, marketing, and distribution operations. Me 
will guide and lead other members of management, and will' plan. develop. and establish 
policies and objectives to increase the company's productivity and profitability. [The 
beneficiary] will develop sound short and long range plans for the company and assure that 
profit or- year-end goals are attained, analyzing and planning strategies to procure new 
business and increase revenues, maximizing the company's market share and profits. while 
ensuring customer satisfaction. He will review activity reports and financial statements to 
determine progress ad status in attaining objective's. [The beneficiary] will spend 
approximately 50% of his time or more at the Brazilian parent company, and thus, 
his U.S. employment with [the petitioner] will be intermittent. 
On December 10.2003, the director requested additional cvidcnce. Specifically, the director requested: (I) a 
descrlption of the duties and educational backgrounds of the petitioner's employees; (2) an explanation of 
how the beneficiary will not engage in the day-to-day operations of the petitioner such that he will be 
employed in a primarily managerial or executive capacity: (3) copies of the petitioner's State quarterly tax 
filings with all attachments for the past two quarters, including proof that pajments were made; and (4) a 
copy of the petitioner's Form 940EZ, Employer's Annual Federal Unemployment Tax Return. 
In a response dated March 9. 2004. the petitioner, through counsel. submttted the requested evldcnce. 
including a description of the duties of the beneficiary and his subordinates.as follows: 
As CEO + General Manager, the beneficiary will be responsible for ploviding overall 
guidance essential to successful operations and business development. He \kt11 he responsible 
for developing short and long range plans to assure that company goals are attained. and to 
ensure the company's productivity and profitability. He will review analysis of sctiv~ties. 
costs, operations, and forecast data to determine progress toward stated goals and objectives 
As CEO & General Manager. the beneficiary will oversee the company's entire business 
development. The day to day operat~ons of the business will be performed by the following 
tnd~v~duals: 
The 'Financial Manager .. . . is responsible for corporate financial Inanagetilent and 
accounting supervision; 
The Logistics Manager . . . is responsible for managing logistics 
(warehousing/imports/exports) operations and relationships with freight forwarders 
and logistics providers; 
The Purchasing Manager . . . is responsible for managing purchases of merchandise 
for inventory and fixed asset's; 
'The Sales and Business Development Manager . . . is responsible for managing sales 
and business development of new market opportunities. 
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The Administrator . . . is responsible for accounts payable. invoicing. accounts 
receivable, general accounting, general documentation filings and office funct~uns. 
The petitioner further submitted a document that provides that each of its six employees possess at least a 
bachelor's degree. 
On March 17, 2004, the director denied the petition. The director detennined that the petitioner did not 
establish that ttie beneficiary will be employed in the United States in a primarily managerial or execiltive 
capacity. Specitically. the director stated that the beneficiary is not managing other professionals or 
managers. The director found that the current structure of the petitioner will require the beneficiary to engage 
in the day-to-day activities of the company. 
On appeal, counsel asserts that the beneficiary possesses extensive managerial and executive shills. and his 
duties will require managing si~bordinates who will carry out the day-to-day operations of the petitioner. 
Counsel provides an attachment to Form 1-2908 that states the following: 
As CEO & General Manager of [the petitioner], [the beneficiary] will not directly engage in 
day-to-day operations of the business. He will be responsible for ovcrseelng the company's 
entjre business development, and will provide overall guidance essential to succe~cful 
international business development and operations. [The beneficiary] will manage and d~rect 
. . indlvlduals nho are responsible for carrying out the company's day-to-day operations[.] 
Counsel subrn~ts educational credentials for some of the beneficiary's subordinates. as well as the petitioner's 
IRS Form 94 1, Employer's Quarterly Federal Tax Return, and Florida State Employer's Quarterlq Report for 
the first quarter of 2004. 
Upon review, counsel's assertions'are not persuasive. When ~xarnining the executiv'e or managerial capacity 
of the beneficiary. the AAO will look first to the petitioner's descriptio" of the job duties. See 8 C.F.R. 
.I4.((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 a11 executive or managerial 
capacity. It/. 
In the instant matter, the beneficiary's job descriptions are brief and vague. providing little insight info the truc 
nature of the tasks hc will perform in .the United States. For'example, the statement that the beneficiary "will 
oversee the company's entire busincss development, including financial. marketing, and distribution 
operations" does not indicate what tasks thc beneficiary will perform on a daily basis. The petitioner indicates 
that the beneficiary "will guide and lead other members of management, and will plan. develop. and establish 
policies and objectives to increase the company's productivity and profitability." Yet. the petitioner has failed 
to provide a clcar account.of its management structure. or an explanation of tiow the beneficiary will interact 
with his claiined subordinates. The petitioner provides that' the beneficiary "will be responsible for 
developing sliort and long range plans to assure that conipany goals are attained, and to ensure the company's 
productivity and profitability." yet this general s'taternent does not adequately address the beneficiary's 
specific daily duties. Counsel asserts that the beneficiary "will be responsible for overseeing thc conipany's 
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entire business development," however. such broad statements provide no indication of,.how the bcneticiary 
will invest his time. Specifics are clearly an iinportant indication of whether a benefici,aryls duties are 
primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating thc regulations. Fedin Bros. Co..'Lld v. Sma. 724 1.'. Supp. 1103 (E.D.N.Y. 1989), ufti. 905 F.2d 
4 1 (2d. Cir. 1990)'. The actual duties themselves reveal the true nature of.the employment. Id. The providcd 
' 
job descriptions do not allow the AAO to determine the actual tasks that the beneficiary will perform, such 
that they can be classified as managerial or executive in nature. 
Asevidence of the petiiioner's current staffing, on appeal the petitioner submits its IRS Form 941, Employer's 
Quarterly '~ederal Tax Return. and Florida State Employer's Quarterly Report for the first quarter of 7,004. 
However. these documents reflect the petitioner's business activity that occurred after November 28.2003. the 
date the petition was filed. The petitioner must establish eligibility at the time of filing the nonimniigrarit visa 
petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligihlc under a new set, of facts. Mutter oj Michelin Tire Cbrp.. 17 I&N Dec. 248 (Keg. Comm. 1978). 
Thus, the 2004 tax documents are not probative of the petitioner's and beneficiary's eligibility as of the filing 
date, and they are given no weight in this proceeding. The petitioner's Florida State Quarterly Repo.rts for the 
third and fourth quarters of 2003 report only two employees, the beneficiary and the individual identified as 
the administrator. 
. . 
Cou~lsel claims that the beneficiary's duties "will require managing subordinates who will carry out thc day- 
to-day operations of the petitioner."' Although the beneficiary is not required to supervise personnel. if it is 
claimed that his duties involve supervisi~ig employees, the petitioner must establish that the subordinate 
employees arc supervisory. professional. or managerial. .See 5 1 Ol(a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional emplo3ees. the AAO must evaluate nhethcr the 
hubordinate pos~tions require a baccalaureate degree as a minimum for entry Into the field of endeavor 
Section IOl(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[tlhe term profession shall include but not 
be llinited 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 advanccd type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level. which 1s a realistic prerequisite to entry into the particular field of 
endeavor. hf~~tiiv of Sea. 19 I&N Dec 81 7 (Comm. 1988): Afuftrr rfl l,irlg, 13 1&N Dec. 35 (R.C. 1968): 
Mutrrr ofShm. 1 I I&N Dcc. 686 (D.D. 1966). 
Therefore. the AAO must focus on the level of education requ~red by the pos~tion, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate emplo}ec doe5 riot 
automatically lead to the conclusion that an employee is cmployed in a professional capacity as that tcrnl IS 
detjned above. In the instant case, the petitloner indicates that each of the beneficiary's subordinates possess 
at least a bachelor's degree. Ho~ever, from the brief descriptions of the duties of each subord~nate. it is not 
poss~ble to determ~ne whether bachelor's degrees are in fact requ~red to successfully perform their tasks 
Thus, the petitioner has failed to show that the beneficiary's subord~nates are professionals. Nor has the 
pctttioner shown that any of the benefic~ary's subordinates supervise other staff members or manage a clearly 
defined department or function of the petitloner, such that thcq could be classified as manager\ or 
Page 7 . I 
supervisors. Thus. the petitioner has not shown that the beneficiary's subordinate employees are supenrisory. 
professional, or managerial, as required by section 10 1 (aM44)(A)(ii) of the Act. 
Based on the foregoing. the petitioner has not establ~shed that the beneficiary will be erilployed in a pr~rnar~ly 
manager~al or executive capacity, as required by 8 C.F.R. 9 714 ?(1)(3)(11) For this reason. the appeal w~ll be 
drsrnlssed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying relationship with 
the beneficrary's foreign employer, as it has failed to show that the foreign entity is doing business See 
8 C F.R. 5 2 14.2(1)(3)(i). The regulation at 8 C.F.R. 4 214.2(l)(ii)(G)(2) reflects that. in order for an entity to 
be considered a qualifying organization. the petitioner must show that it: 
Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and at least one other country directly or through a parent. branch, affiliate.. 
or subsidiary for the duration of the alien's stay in the Un~ted States as an intracompany 
transferee . . . . 
The regulation at 8 C.F.R. 8 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe regular. systematic, and continuous provision of goods andlor services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
As evidence of the foreign entity's business operations. the petitioner provided a 2002 financial statemcnt~ a 
2002 tax filing. a registration document. two invoices dated iti 2002: and docu~ne~its without complete 
translations, Regarding the untranslated evidence. because the petitioner failed to submit certified trarlslatioris 
of the documents. the AAO cannot--determine whether the evidence supports the petitioner's claims. .Tee 
8 C.F.R..$ 103.2(b)(3). ~ccord'ingly. the evidencc is not probative and will not be accorded any weight in 
this proceeding. The remaining documents are not sufficient to show that thc foreign entity is engaged "the 
regular, systematic. and'continuous provision of goods and/or services." For this additional reason. the 
petition.may not be approved. 
.Also beyond the decision of the director, the petitioner has not established that the beneficiary has at least one 
continuous' year of full time ernployme~~t abroad with a qualifying organization within the' three years 
preced~ng the filing of the petition. 8 C.F.R. 4 214.2(1)(3)(iii). 'l'he petitioner,states that the beneficiary began 
employment with the foreign entity in January 2002. Yet, the beneficiary was'approved for H-1 B status with 
the -petitioner from June 1, 2002 .to April 15, 2005. The beneficiary's passport reflects that lie entered tlic 
Linited States in H-IB status on August 1, 2002. approsimately seven months after he began employment 
with the foreign entity.' Pursuant to'8 C.F.R. § 214.2(1)(l)(ii)(A), periods spent in the United States in laivful 
status for a branch of the same employer or a parent, affiliate, or subsidiary thereof are not interruptive of the 
one ycar of continuous employment abroad but such periods shall not'be counted toward fulfillment of that 
requirement. The beneficiary's passpon shows that he departed and reentered the United States several timcs 
after his initial entry in H- I B status. Yet, from the evidence provided it is no1 possible to dctennine where he 
was. when hc dcpartcd the United States, and whether he was working on behalf of the foreign entity while 
abroad. Accordingly, the petitioner has failed to show that the beneficiary worked for the foreign entity for a 
continuous year of full time employment. For this additional reason, the appeal will be dismissed. 
Also beyond the decision of the director, the petitioner has failed to provide a detailed description of the 
beneficiary's duties abroad such that the AAO can determine whether he was employed in a primar~ly 
managerial or executive capacity. 8 C.F.R. fj 214,2(.1)(3)(iv). For this additional reason. the appeal will be 
dismissed. , 
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 
Spericer E~lerprise.~. bic. v. Uni,edS/utes, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), uffd. 345 F.3d 683 
(9th Cir. 2003): see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989Xnoting that the AAOreviews 
appeals on a de I?O\~O basis). 
In visa petition proceed~ngs, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. The petitioner has not met this burden. Accordingly. the 
appeal will be dismissed. 
ORDER: The appeal is dismissed!