dismissed L-1A Case: Metals

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 07 087 52417 Office: VERMONT SERVICE CENTER Date: FEB 0 1 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. €j 1101(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. 
_.-" 
'Robert Memann, Chief 
Administrative Appeals Office 
EAC 07 087 52417 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as an operations 
manager as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 1 5)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a limited liability 
company organized under the laws of the State of Delaware and is allegedly a metals vendor. 
The director denied the petition concluding that the petitioner did not establish (1) that the beneficiary was 
employed abroad in a primarily managerial or executive capacity; or (2) that the beneficiary will be employed 
in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treal the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director 
erred and that the beneficiary's duties are primarily those of a function manager. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
' The regulation at 8 C.F.R. 4 214.2(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. 
(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 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 first issue in the present matter is whether the beneficiary was employed abroad in a primarily managerial 
EAC 07 087 52417 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
The petitioner described the beneficiary's duties abroad in a letter dated February 5, 2007. As this letter is in 
the record, this job description will not be repeated here. 
On February 21, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed description of the beneficiary's claimed managerial duties, a description of the duties of the 
beneficiary's subordinate workers, and an organizational chart. 
In response, counsel submitted a letter dated March 1, 2007 in which he describes the beneficiary's duties 
abroad as follows: 
[The beneficiary's] duties include managing [the foreign employer's] relationship with 
customers on a daily basis by giving direct quotes and following up on cold calls, pricing and 
profitability of specific sales orders; managing the operations and processes of the sheet 
department by assigning daily and hourly tasks and utilizing capital and assets to perform the 
daily tasks in the most efficient yet effective way possible; and responsibility for the safety of 
the operation, following the department's rules and regulations of safety and secure operation 
'As counsel asserts both in the letter dated March 1, 2007 and on appeal that the beneficiary has been and will 
be employed as a manager, the AAO will limit its consideration to the managerial classification. As counsel 
does not assert that the beneficiary has been or will be employed in an executive capacity, the AAO will not 
consider this classification on appeal. 
EAC 07 087 52417 
Page 4 
to minimize accidents or injuries while preparing orders for customers. 
 He manages 5 
employees in each shift, which include warehouse employees, forklift operators, and quality 
control inspectors. [The beneficiary's] position requires excellent communication skills, the 
ability to handle multiple tasks simultaneously, organizational skills, and computer skills for 
managing work and assignments. [The beneficiary] needs to solve problems and conflicts in 
schedules due to the high volume of orders, and give direction and clear tasks to his 
employees. At [the foreign employer], leadership by example is the norm, and [the 
beneficiary] leads his teams by showing, training and guiding them throughout the day. He 
spends 70% of his time on managerial duties and 30% on other duties. He has full autonomy 
to make decisions within his department. 
The petitioner also submitted an organizational chart for the foreign employer. 
 The chart shows the 
beneficiary's position, which is marked with asterisks, reporting to an operation manager and supervising a 
"warehouse team." The beneficiary's position is described in the chart as Warehouse No[.] 2 Shift Manager." 
Counsel described the duties of the "warehouse team" in the letter dated March 1,2007 as follows: 
At [the foreign entity], [the beneficiary] manages warehouse employees, forklift operators, 
and quality control inspectors. Their job duties are described by their job titles; namely, 
working in the warehouse, operating forklifts, and inspecting products for quality control. 
On March 12, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was employed abroad primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties were primarily those of a function manager. 
Upon review, counsel's assertions are not persuasive. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 2 14.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties performed by the beneficiary and indicate whether such duties were 
either in an executive or managerial capacity. Id. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
was employed abroad in a "managerial" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary did on a day- 
to-day basis. For example, the petitioner states that the beneficiary was responsible "for the safety of the 
operation, following the department's rules and regulations of safety and secure operation" and that he led "his 
teams by showing, training and guiding them throughout the day." However, the petitioner does not 
specifically explain what, exactly, the beneficiary did in performing these broad duties. The fact that the 
petitioner has given the beneficiary a managerial or executive title and has prepared a vague job description 
which includes inflated job duties does not establish that the beneficiary actually performed managerial or 
executive duties. Specifics are clearly an important indication of whether a beneficiary's duties were 
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 
EAC 07 087 52417 
Page 5 
41 (2d. Cir. 1990). 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). 
Likewise, the duties ascribed to the beneficiary appear to be primarily non-qualifying administrative or 
operational tasks which will not rise to the level of being managerial in nature. For example, the petitioner 
asserts that the beneficiary gave "direct quotes" and followed up on "cold calls, pricing and profitability of 
specific sales orders." However, such sales and marketing duties are non-qualifying administrative or 
operational tasks. Furthermore, as the petitioner has failed to establish that any of his subordinate employees 
is a supervisory, managerial, or professional worker (see infra), the supervisory functions ascribed to the 
beneficiary are non-qualifying, first-line supervisory tasks. As the petitioner has not established how much 
time the beneficiary devoted to these non-qualifying tasks, it has not been established that he was "primarily" 
employed as a manager. 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 10 1 (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 International, 19 I&N Dec. 593, 604 (Comm. 
1988).~ 
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees, or managed an essential function of the organization. As 
indicated above, the beneficiary directly supervised "5 employees in each shift, which include warehouse 
employees, forklift operators, and quality control inspectors." However, these employees are not described 
as having supervisory or managerial responsibilities. To the contrary, these employees are vaguely described 
as performing warehousing related tasks. In view of the above, the beneficiary would appear to have been 
primarily a first-line supervisor of non-professional workers, the provider of actual services, or a combination 
of both. A managerial employee must have authority over day-to-day operations beyond the level normally 
vested in a first-line supervisor, unless the supervised employees are professionals. 10 1 (a)(44)(A)(iv) of the 
Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner 
failed to establish the skills required to perform the duties of the subordinate positions, the petitioner has not 
established that the beneficiary managed professional employees.3 Therefore, the petitioner has not 
established that the beneficiary was employed abroad primarily in a managerial capacity. 
- - - - 
2 
While the petitioner asserts that the beneficiary spent "70% of his time on management duties," this 
conclusory statement is not persuasive in establishing that the beneficiary was primarily employed as a 
manager. The petitioner failed to identify which of the ascribed duties consumed 70% of his time. Once 
again, 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. 
3 
In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10 1 (a)(32) of the Act, 8 U.S.C. 8 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 serninaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
EAC 07 087 52417 
Page 6 
The petitioner has also not established that the beneficiary managed an essential function of the organization. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential .functionM within the 
organization. See section 101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute 
or regulation. If a petitioner claims that the beneficiary managed an essential function, the petitioner must 
furnish a written job offer that clearly describes the duties performed in managing the essential function, i.e., 
identify the function with specificity, articulate the essential nature of the function, and establish the 
proportion of the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 5 
2 14.2()(3)(). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that 
the beneficiary managed the function rather than performed the duties related to the function. 
In this matter, the petitioner has not provided evidence that the beneficiary managed an essential function of 
the organization abroad. As noted above, the petitioner's job description fails to clearly document that the 
beneficiary's duties were primarily managerial. Absent a clear and credible breakdown of the time spent by 
the beneficiary performing his duties, the AAO cannot determine what proportion of his duties were 
managerial, nor can it deduce whether the beneficiary primarily performed the duties of a function manager. 
See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). The mere fact that the 
beneficiary may have supervised non-professional workers performing tasks will not establish that he was a 
I'function manager." As explained above, first-line supervisory duties are, by definition, non-managerial 
tasks. 10 1 (a)(44)(A)(iv) of the Act. "Function managers" must perform primarily managerial duties, which 
do not include being a first-line supervisor. In this matter, the petitioner describes the beneficiary as 
"assigning daily and hourly tasks" and as leading by example by "showing, training and guiding [his 
subordinates] throughout the day." Such tasks are not qualifying managerial duties, and the performance of 
such tasks will not establish that the beneficiary was employed in a primarily managerial capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary was primarily performing managerial 
duties abroad, and the petition may not be approved for that rea~on.~ 
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 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
4 
It is noted that counsel to the petitioner cited the unpublished opinion in Matter of Irish Dairy Board, A28- 
845-42 (AAO Nov. 16, 1989), in support of his contention that the beneficiary is primarily employed as a 
function manager. In that decision, the AAO recognized that the sole employee of the petitioner could be 
employed primarily as a manager or executive provided he or she is primarily performing executive or 
managerial duties. However, counsel's reliance on this decision is misplaced. First, counsel has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the unpublished decision. 
Second, while 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all CIS employees 
in the administration of the Act, unpublished decisions are not similarly binding. Third, as explained above, 
the petitioner has not established that the beneficiary will primarily be employed in a managerial capacity. 
This is paramount to the analysis, and a beneficiary may not be classified as a manager if he or she will not 
primarily perform managerial duties regardless of the number of people employed by the petitioning 
EAC 07 087 52417 
Page 7 
The second issue in the present matter is whether 'the petitioner established that the beleficiary will be 
employed in a primarily managerial capacity in the United States. 
The petitioner described the beneficiary's proposed duties in a letter dated February 5, 2007. As this letter is 
in the record, the job description will not be repeated here. 
On February 21, 2007, the director requested additional evidence. The director requested, inter alia, detailed 
job descriptions for the beneficiary and all subordinate employees, a breakdown of the number of hours 
devoted to each of the employees' job duties on a weekly basis, and an organizational chart. 
In response, counsel submitted a letter dated March 1, 2007 in which he describes the beneficiary's proposed 
employment in the United States as follows: 
[The beneficiary] will manage warehouse employees, forklift operators, and quality control 
inspectors. Their job duties are described by their job titles; namely, working in the 
warehouse, operating forklifts, and inspecting products for quality control. The full job 
description for the beneficiary was included in detail in the original submission. His duties 
will be as follows: supervising engineering teams, technicians, and technologists; overseeing 
the installation, maintenance, calibration and operation of [the petitioning organization's] 
equipment (polishing, cut-to-length multi-blanking, cut-to-length slitting line); management 
of material selection and process preparation; coordination of warehouse arrivals as well as 
out-going deliveries; ensuring timely deliveries; and management of quality control and 
human resources. He will also train the engineering and warehouse teams to improve the 
quality and speed of [the petitioner's] operations. 
The petitioner also submitted an organizational chart. The chart portrays the beneficiary as reporting to a 
branch manager and as supervising a "warehouse team" and a "delivery team." 
On March 12, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties will be primarily those of a function manager. 
Upon review, counsel's assertions are not persuasive. 
Once again, 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. 9 2 14.2(1)(3)(ii). The petitioner's description of 
the job duties must clearly describe the duties to be performed by the beneficiary and indicate whether such 
duties will be either in an executive or managerial capacity. Id. 
In this matter, and for generally the same reasons given above, the petitioner's description of the beneficiary's 
. 
organization. Therefore, as the petitioner has not established this essential element, the decision in Matter of 
Irish Dairy Board would be irrelevant even if it were binding or analogous. 
EAC 07 087 52417 
Page 8 
proposed job duties fails to establish that the beneficiary will be employed in a "managerial" capacity. In 
support of the petition, the petitioner has submitted a vague and non-specific job description which fails to 
sufficiently describe what the beneficiary will do on a day-to-day basis. For example, the petitioner states 
that the beneficiary will supervise engineering teams, technicians, and technologists; oversee the installation, 
maintenance, calibration and operation of equipment; manage material selection and process preparation; 
coordinate warehouse arrivals and out-going deliveries; ensure timely deliveries; and manage quality control 
and human resources. However, the petitioner does not explain what, exactly, the beneficiary will do in 
supervising, overseeing, managing, coordinating, and ensuring. The petitioner does not specifically identify 
the "engineering teams, technicians, and technologists" or describe what activities the beneficiary will be 
supervising. Also, the petitioner does not explain what the beneficiary will do in "managing" material 
selection or in "coordinating" warehouse arrivals. Specifics are clearly an important indication of whether a 
beneficiary's duties will be 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, 
aff'd, 905 F.2d 41. 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. 
Likewise, the duties ascribed to the beneficiary appear to be primarily non-qualifying first-line supervisory 
tasks which will not rise to the level of being managerial in nature. As the petitioner has failed to establish 
that any of his subordinate employees is a supervisory, managerial, or professional worker (see infra), the 
supervisory functions ascribed to the beneficiary are non-qualifying duties. As the petitioner has not 
established how much time the beneficiary will devote to these non-qualifying tasks, it has not been 
established that he will be "primarily" employed as a manager. 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; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
 Although the director specifically requested that the 
petitioner submit a breakdown of both the beneficiary's and his subordinate employees' duties on a weekly 
basis, the petitioner failed to submit this evidence and, thus, has failed to establish that the beneficiary will be 
primarily employed as a manager. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As indicated above, the beneficiary will allegedly supervise "warehouse employees, forklift operators, and 
quality control inspectors." However, these employees are not described as having supervisory or managerial 
responsibilities. To the contrary, these employees are vaguely described as performing warehousing related 
tasks. In view of the above, it appears that the beneficiary will be primarily a first-line supervisor of non- 
professional workers, the provider of actualservices, or a combination of both. A managerial employee must 
have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless 
the supervised employees are professionals. 10 1 (a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills 
required to perform the duties of the subordinate positions, the petitioner has not established that the 
beneficiary will manage professional employees. Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in a managerial capacity. 
EAC 07 087 52417 
Page 9 
The petitioner has also not established that the beneficiary will manage an essential function of the 
organization. As noted above, the petitioner's job description fails to clearly document that the beneficiary's 
duties will be primarily managerial. Absent a clear and credible breakdown of the time spent by the 
beneficiary performing his duties, the AAO cannot determine what proportion of his duties were managerial, 
nor can it deduce whether the beneficiary primarily performed the duties of a function manager. See IKEA 
US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d at 24. As explained previously, the mere fact that the 
beneficiary will supervise non-professional workers performing tasks will not establish that he will be a 
"function manager." First-line supervisory duties are, by definition, non-managerial tasks. 10 1 (a)(44)(A)(iv) 
of the Act. "Function managers" must perform primarily managerial duties, which do not include being a 
first-line supervisor. In this matter, the petitioner describes the beneficiary as performing first-line 
supervisory tasks. Such tasks are not qualifying managerial duties and the performance of such tasks will not 
establish that the beneficiary will be employed in a primarily managerial capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial 
duties, and the petition may not be approved for that reason 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: 
 The appeal is dismissed.