dismissed L-1A Case: Music Industry

US. Departmetlt of Homeland Sectirity 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: SRC 04 160 51524 Office: TEXAS SERVICE CENTER Date: duL 2 7 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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 Ofice 
SRC0416051524 
Page 2 
DISCUSSION: The Director, Texas 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 is described as a business dealing with the recording, manufacturing and sales of compact 
disks and the promotion of artists and musical groups. It seeks to extend its authorization to employ the 
beneficiary temporarily in the United States as its general manager, pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The director denied the petition based 
on the conclusion that that the petitioner has not established that the beneficiary's duties are primarily that of 
managerial or executive capacity. 
On appeal, counsel states that the petitioner is in a managerial capacity as "the majority of her [the 
To establish eligibility under section 10 1 (a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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. 8 214.2(1)(3) hrther 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 perfonned. 
(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 hirn/her 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. 
In addition, section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1101(a)(44)(A), provides: 
SRC 04 160 51524 
Page 3 
The term "managerial capacity" means an assignment within an organization in which the employee 
prirnarily- 
(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 hnction within the organization, or a department or 
sub&vision 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 hction for 
whch the employee has authority. A first-line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity7' means an assignment within an organization in which the employee 
primarily- 
(i) 
 directs the management of the organization or a major component or hnction of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of d~rectors, or stockholders of the organization. 
The petitionerlarms to be an affiliate 06- 
located in Mexico. The United States entity was incorporated in the State of Georgia on March 13, 2002 
and is engaged in the business of recording, manufacturing and sales of compact disks and the promotion 
of artists and musical groups. Accordingly, the United States entity petitioned CIS to classify the 
beneficiary as a nonimmi grant intracompany transferee (L- 1 A) pursuant to section 10 1 (a)( 15)(L) of the 
Act as an executive or manager for three years. The petitioner seeks to continue to employ the 
beneficiary as the U.S. entity's general manager. 
SRC 04 160 51524 
Page 4 
On the Form 1-129, the petitioner described the beneficiary's United States duties as: "Manage and direct 
entire business operations." In addition, in a supporting letter dated May 17, 2004, the petitioner hrther 
described the beneficiary's proposed U.S. duties as: 
She will continue to manage and direct the entire business operations, including marketing, 
sales, direct promotion of artist and musical groups, control and training of new employees, 
all hiring and firing of subordinate personnel and managing all bank related matters. 
Additionally, she will supervise product inventory and all customer service activities. 
On September 13, 2004, the director requested additional evidence. Specifically, the director requested a 
statement describing the staffing of the United States company which indicated the number of employees, the 
position and job duties of each employee, and the specific date each employee began employment with the 
company. In addition, the director requested a copy of the employer's quarterly state tax report for the second 
quarter of 2004, and evidence of any contract employees. 
In response, the petitioner submitted the requested information. The petitioner stated that the United States 
company is staffed by the beneficiary, a secretary, and a dispatcher/promotion assistant. In addition, the 
petitioner submitted the work schedule for each employee. The work schedule submitted for the secretary 
stated that her work schedule is twenty hours per week. Thus, it appears that the secretary is a part-time 
employee. The petitioner also stated that the company had previously hired two contract employees but at 
the time of filing the response, the United States company did not have any contract employees on its payroll. 
The director denied the petition on January 27, 2005 on the ground that the petitioner did not establish 
that the beneficiary will be employed in a primarily managerial or executive capacity. The director also 
suggested that the beneficiary is called upon to perform many duties associated with running a business 
that are not managerial or executive since the company has only employed two employees in addition to 
the beneficiary. 
On appeal, counsel submitted a detailed job description for the position of general manager. The description 
further elaborates the job duties of the beneficiary to include the following: 
Duties: 
Meets with SecretaqdOffice Assistant at the begnning of each day to discuss daily tasks and provide 
mstruc.hons on assignments. 
Check Emalls fi-om ~oreign ~ehhoner-ind generate reply. 
Dlscuses financial, personnel, operations, sales, adverhsmg issues w~th the Foreign Petiboner 
ither via e-mall, via telephone or facsimle. 
Meets wth Dispatcher/Storage Keeper to be sure that all orders have been completed and slpped to 
customers. Also, to be sure that all arriving shipments fi-om Mexico are counted, stored, and entered 
into the inventory. And, deals with problematic issues related to merchandise and inventory. 
Check all in coming facsimiles, and generate reply. Then, delegate Secretary to send reply. 
Checks and reply to all correspondence received by Arpon International Records, Inc. 
Contact new and old customers in order to continue our business relationship. 
Set up on new accounts. 
Generates invoices and delegates Secretary to send mail. 
SRC 04 160 51524 
Page 5 
Makes telephone calls to prospect customers interested in Arpon's products. 
Handles all financial and accounting payouts to providers and agents. 
Handles Arpon utility and office bills to be paid. 
Meets with Promoter on daily basis to discuss goals and strateges for advertising in radio stations 
and activities for "live" advertising promotions at retails stores or Distributor's main officers. Also, 
to d~scuss visits to radio stations to conduct promotions, announce presentations of musical groups. 
Finally, discusses schedule of stores to be visited in order to provide them with promotional compact 
disks and brochures. 
Supervise and direct all employees. 
Deals directly with Accountant to provide Arpon's documents in order to generate payroll for 
employees, States and Federal Reports as needed. 
Meets with Accountant twice wer month. 
Controls all Bank accounts fo 
Creates a cash flow forecast report for Foreign Petitione 
Conducts weekly visits to all distributors and retail stores. 
Monthly Tasks 
Pays the Payroll taxes based on reports of information provided by Accountant. 
Check inventory, makes decisions on 
of all new orders with Foreign Petition 
Generates invoices to all customers and delegated Secretary to mail. 
Deals with customers that have past due balances and determined when it becomes necessary to take 
other legal measures. 
Created budget report. 
Checks that all magazine advertising has been published. 
Chooses material for Marketing advertising placed with 
 as well as the radio 
stations and newspapers. 
In addition, the petitioner on appeal indicates that the secretary is a full-time employee. However, the 
response submitted by the petitioner on November 1, 2005 stated that the secretary is a part-time 
employee. 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 (BIA 1988). 
Furthermore, on appeal, the petitioner asserts that it hired a full-time promoter on February 15, 2005, after 
filing the petition for an extension of L-1 classification. A petitioner must establish eligibility at the time 
of filing; a petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. Mutter of Kutigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that 
the beneficiary performs the high level responsibilities that are specified in the definitions. Second, the 
SRC 04 160 51524 
Page 6 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) 
of the Act. On appeal, the petitioner asserts that the beneficiary will function as both a managerial and 
executive employee. A beneficiary may not claim to be employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. If the petitioner chooses to represent the 
beneficiary as both an executive and a manager, it must establish that the beneficiary meets each of the 
four criteria set forth in the statutory definition for executive and the statutory definition for manager. 
In addition, based on the current record, the AAO is unable to determine whether the claimed managerial 
duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs 
non-managerial administrative or operational duties. The petitioner's description of the beneficiary's job 
duties does not establish what proportion of the beneficiary's duties is managerial in nature, and what 
proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 
1991). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(#)(A) and 
(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on them. This failure of documentation is important because several of the beneficiary's 
daily tasks, such as "chec generate reply," "checks and reply to all 
correspondence received by "contact new and old customers in order to 
continue our business relationshp," "conducts weekly visits to all distributors and retail stores,"and 
"generates invoices to all customers," do not fall directly under traditional managerial duties as defined in the 
statute. For this reason, the AAO cannot determine whether the beneficiary is primarily performing the duties 
of a function manager. See lTKEA U$ Inc. V. US. Depl. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
In addition, although the beneficiary is not required to supervise personnel, if it is claimed that her duties 
involve supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See 5 10 1 (a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages 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 101(a)(32) of the Act, 8 U.S.C. 5 1101(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 slall, 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 ofling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
SRC0416051524 
Page 7 
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 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 secretarial and inventory work of the office secretary and 
the dispatcherhtorage keeper, who were the beneficiary's only subordinate employees at the time of 
filing. 
Furthermore, a critical analysis of the nature of the petitioner's business undermines counsel's assertion 
that the subordinate employees relieve the beneficiary from performing non-qualifymg duties. It appears 
that the only subordinates of the beneficiary, at the time of filing, included a part-time secretary and a 
part-time dispatcherhtorage keeper. Thus, the only individual performing any marketing-related 
functions, budget preparation and sales operations is the beneficiary herself. As the secretary and the 
dispatcher have been described as performing only administrative functions for the beneficiary, it can 
only be assumed, and has not been proven otherwise, that the beneficiary is performing all other 
marketing and sales functions, including devising marketing plans, contacting advertisers, and performing 
any public relations tasks. Based on the record of proceeding, the beneficiary's job duties are principally 
composed of non-qualifying duties that preclude him from functioning in a primarily managerial or 
executive role. 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 
(Comm. 1988). 
If the position offered to the beneficiary is executive in capacity, the statutory definition of the term 
"executive capacity" focuses on a person's elevated position within a complex organizational hierarchy, 
including major components or functions of the organization, and that person's authority to direct the 
organization. 
 Section 10l(a)(44)(B) of the Act, 8 U.S.C. 3 1101(a)(44)(B). 
 Under the statute, a 
beneficiary must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of managerial 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they 
"direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise 
"wide latitude in discretionary decision making" and receive only "general supervision or direction from 
higher level executives, the board of directors, or stockholders of the organization." Id. According to the 
record, it appears that the beneficiary will primarily perform the tasks necessary to provide services and 
thus, the petitioner has not established that the position is an executive capacity. 
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. Accordingly, 
the appeal will be dismissed. 
ORDER: The appeal is dismissed.