dismissed L-1A Case: Pharmaceuticals

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: EAC 04 150 52972 Office: VERMONT SERVICE CENTER Date: 2 7 2@5 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(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. 
kobert P. Wiemann, ~ire/ctor 
ministrative Appeals Office 
EAC 04 150 52972 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the he Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner claims to be a branch office of ocated in 
Amarpeet, India, and is authorized to conduct business in the State of New Jersey. The petitioner is engaged 
in the development and manufacture of pharmaceuticals.'The petitioner seeks to employ the beneficiary as its 
general manager (technical services) for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in a managerial or executive capacity in the United States. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director placed undue 
emphasis on the number of employees presently employed by the U.S. company, and failed to consider the 
size of the overseas operations and the petitioner's intended manufacturing operations in the United States in 
determining whether the beneficiary will be employed in a managerial or executive capacity. The petitioner 
submits a letter and additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(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. 9 214.2(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 
EAC 04 150 52972 
Page 3 
education, training, and employment qualifies himher 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 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. 9 1101(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 authofity. 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. 9 1101(a)(44)(B), defines the term "executive capacity" as 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 discretionary decision making; and 
(iv) receives only general supervision or direction fLom higher level executives, the board 
of directors, or stockholders of the organization. 
In an April 9,2004 letter submitted with the initial petition, the petitioner described the beneficiary's proposed 
job duties as follows: 
EAC 04 150 52972 
Page 4 
As General Manager (Technical Affairs), [the beneficiary] will have the authority to make 
discretionary decisions regarding the day-to-day operations. [The beneficiary] will exercise a 
wide range of responsibilities including, but- not limited to (a) exercising authority with 
regarding to hiring, training, delegation of assie-ments according to capabilities, promotions 
and remunerations; (b) conducting performance reviews and ensures that his staff follows 
corporate procedures; (c) managing and coordinating customer claims and questions; (d) 
developing new sources of (e) providing local staff members 
with guidance by communicatin goals and objectives. 
As General Manager (Technical Affairs), [the beneficiary] would directly manage and 
oversee the business in all aspects of its technical affairs. [The beneficiary] would represent 
[the petitioner's] business development operations in consultation with [the] head office to 
ensure new strategies are accurately communicated and implementad. He has the full 
authority to legally bind [the petitioner] by negotiating and executing supply agreements with 
local generic manufacturing compqnies. 
The petitioner indicated on Form 1-129 that it employed two individuals at the time of filing, and submitted its 
New Jersey Form 927-W, Employer's Quarterly Report, confirming the employment of its president during 
the fourth quarter of 2003. The petitioner stated that the U.S. branch office was established to oversee 
existing manufacturing facilities in California, to make additional investments in constructing U.S. 
manufacturing facilities, to coordinate the marketing of pharmaceutical ingredients and final products 
manufactured in India and the United States, and to coordinate' all of the investments and activities in North 
America. 
On April 30,2004, the director requested additional evidence to establish that the petitioner would employ the 
beneficiary in a qualifying managerial or executive capacity. Specifically, the director requested: (1) a 
comprehensive description of the beneficiary's proposed duties and an explanation as to how they will be 
managerial or executive in nature; (2) a breakdown of the number of hours devoted to each of the 
beneficiary's proposed job duties on a weekly basis; (3) a list of United States employees including each 
employee's name, job title, complete position description, and a breakdown of the number of hours devoted to 
each of the employee's job duties on a weekly basis; (4) the number of subordinate employees who will be 
under the beneficiary's supervision and their job duties; (5) the amount of.time the beneficiary will allot to 
executive/managerial duties, and the amount devoted to other non-executive functions; and, (6) an 
explanation regarding the degree of discretionary authority the beneficiary will have in the proposed position. 
In a response dated May 20, 2004, the petitioner explained that i) intends to establish operations for the 
development, manufacture and marketing of generic pharmaceutical products, and through a subsidiary, has 
identified an existing building to be used for its office, development laboratory, manufacturing, warehousing 
and distribution activities. The petitioner indicated that the beneficiary "would be responsible to look after the 
project" and following completion, would work in the manufacturing facility as "head of technical and 
engineering services." The petitioner further described the beneficiary's proposed duties as follows: 
EAC 04 150 52972 
Page 5 
His expertise in Building designing, Air Handling units and Refrigeration Plan selection, 
Process water Producing Plant (RO plant) Designihg, Designing of Quality Control 
Laboratories, Development Center and Manufacturing areas would help [the petitioner] to 
implement the Project for Pharmaceutical Formulation 'Unit, within the USFDA regulatory 
framework. 
Subsequent to installation, he will also be responsitle for Qualifying Equipments & facilities, 
conducting the Process Equipments Qualification. After the commissioning [of] the Plant, he 
will look after the Technical services group, to support manufacturing in the area of Trouble 
shooting, Time to time Re-qualification of Equipments, Processes and Supporting the future 
expansion plans of the Company. 
As part of his responsibility, he will also actively involve and get the Manufacturing 
Technology transferred from Development Laboratory in Hyderabad, India, to the plant in 
New Jersey, US. 
[The beneficiary] [wlill thus head a Project Management, initially consisting of 2 Engineers. 
He will Coordinate with the External Design and Architectural Engineers and Consultants, 
Contactors [sic], State / Local Township authorities, Regulatory authorities during execution 
of the Project. After completion, [the beneficiary] will head a Maintenance and Technical 
Services Department constituted with Maintenance Engineering and Technical staff 
consisting of 10-1 2 employees to provide Technical Support to Production Department. 
The petitioner submitted an organizational chart depicting a chief executive officer over the beneficiary's 
proposed position and a vice president responsible for "administration/commercial/logistics." The chart 
shows vacant positions in the areas of marketing and distribution, manufacturing, financial, and quality 
assurance and regulatory affairs. There are no subordinate employees, current or proposed, listed under the 
beneficiary's position. Although requested by the director, the petitioner did not provide job descriptions for 
the petitioner's other employees, a breakdown of the number of hours the beneficiary and the other employees 
will spend on their job duties, or indicate the amount of time the beneficiary will allot to managerial or 
executive duties. 
On June 17,2004, the director denied the petition concluding that the beneficiary would not be employed in a 
managerial or executive capacity in the United States. The director observed that the petitioner did not 
currently employ any personnel who would relieve the beneficiary from performing the day-to-day duties of 
running a business, and noted that the petitioner must establish that the beneficiary will be acting in a 
primarily managerial capacity at the time the petition is approved. The director also reviewed the 
beneficiary's job description and found that he "will be doing almost everything" involved in the running of 
the office, since there is no staff to relieve him from performing the non-qualifying duties. The director 
acknowledged that the petitioner intended to hire additional staff in the future, but found that the beneficiary 
would be required to perform the duties of the vacant positions until such persons are hired. 
EAC 04 150 52972 
Page 6 
On appeal, the petitioner claims that the beneficiary will serve in a managerial position involving "substantial 
responsibility and accountability in achieving company objectives by 
personnel directly reporting to him." The petitioner submits evidence that Inc., a 
subsidiary of the foreign entity established in February 2004, completed the purchase of a 250,499 square foot 
building in New Jersey to be used for pharmaceutical development, manufacturing and warehousing 
operations on June 29, 2004. The petitioner claims that the foreign entity will invest over $20 million to 
convert the building to be used for pharmaceutical development and manufacturing activities, and asserts that 
the beneficiary will be responsible for planning and implementation of the project, including responsibility for 
guiding, directing and controlling a team of professionals and external contractors. 
Specifically, the petitioner indicates that the beneficiary will: plan and implement a $10 million capital 
investment for the pharmaceutical manufacturing facility; recruit department heads for the technical 
department, project engineering and plant maintenance engineering; select construction contractors, and 
consulting engineers whose duties would be overseen by department heads; and be a member of the 
management team responsible for shaping company direction and achieving company goals. The petitioner 
also notes that while the branch office has only three employees, its group employs over 3000 worldwide. The 
petitioner claims that the U.S. office will employ approximately 25 workers by the end of 2004 and over 100 
workers within 18 to 24 months once the manufacturing plant commences operations. The petitioner asserts 
that it intends to initially staff its operations with management employees who will be responsible for building 
and managing their respective departments. The petitioner claims that the evidence submitted on appeal 
establishes that the beneficiary will serve in a managerial capacity pursuant to section 101(a)(44)(A) of the 
Act. 
In support of the appeal, the petitioner submits a new organizational chart showing a chief executive officer 
supervising seven departments headed by vice presidents or directors, including the beneficiary, the vice 
president for administration~comrnercial/logistics, and an API marketing and distribution director who was 
not employed at the time the petition was filed. The other department head positions are vacant. The chart 
shows that the beneficiary will supervise a project engineer, manager technical services, and a plant engineer, 
and that the subordinates will in turn supervise engineers, consultants, contractors, mechanics, electricians and 
formulators. The petitioner submits its New Jersey Form 927-W for the first quarter of 2004 confirming the 
employment of a vice president, and a payroll journal for the month of May 2004 showing the vice president, 
the chief executive officer, and the employee identified as a "project engineer." 
Upon review, the petitioner's assertions are not persuasive. The petitioner has not submitted sufficient 
evidence to demonstrate that the beneficiary would be employed in a primarily managerial or executive 
capacity as of the date the petition was filed. 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. 
214.2(1)(3)(). 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 an executive or managerial 
capacity. Id. 
The petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner initially stated that 
EAC 04 150 52972 
Page 7 
the beneficiary will "make discretionary decisions regarding the day-to-day operations," "manage and oversee 
the business in all aspects of its technical affairs," and "exercise authority with regard to hiring" and other 
personnel decisions. These statements merely paraphrase portions of the statutory definition of managerial 
capacity. See sections 101(a)(44)(A)(i),(ii) and (iv) of the Act, 8 U.S.C. $5 1 101(a)(44)(A)(i), (ii) and (iv) 
Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating 
the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Atyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The petitioner also indicated that the beneficiary would "manage and ~oordinate customer claims and 
questions," and "develop new sources of supply in the United States," including authority to execute supply 
agreements. However, the petitioner did not identify any current or proposed employees who would perform 
day-to-day customer service duties, or who would be responsible for performing market research and other 
non-qualifying duties associated with "developing" supply sources. Accordingly, the petitioner did not 
establish that these responsibilities would include managerial duties, rather than operational tasks necessary to 
produce a product or provide a service. The actual duties .themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd, v. Sava, 724 F. Supp. at 1 lo&. 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 Scientology International,-19 I&N Dec. 593, 604 (Comrn. 1988). 
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 petitioner 
must show 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-test is basic to ensure that a beneficiary not only has the 
requisite authority, but that a majority of his or her duties are related to operational or policy management, not 
to the supervision of lower level employees, performance of the duties of another type of position, or other 
involvement in the operational activities of the cdmpany. 
The director advised the petitioner that its initial description of the beneficiary's duties showed that he _would 
be primarily engaged in the day-to-day operations of the company and supervising employees who had not 
been shown to be employed in managerial, professional or supervisory positions. Accordingly, the director 
requested a comprehensive description of the beneficiary's duties, the amount of time he would allocate to 
managerial duties, a detailed breakdown of the number of hours he would devote to each of his duties on a 
weekly basis, and a list of the beneficiary's subordinates including job descriptions for each subordinate. 
The petitioner's response to the director's request for evidence did not include the comprehensive job 
description and detailed breakdown of job duties requested by the director, or elaborate upon the job 
description previously provided. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. tj 103.2(b)(14). Instead, the petitioner indicated 
that its claimed subsidiary was in the process of establishing a manufacturing facility for pharmaceutical 
development and manufacturing, that the beneficiary would initially manage the conversion of the building, 
and that he would later work in the manufacturing facility as head of technical and engineering services. 
EAC 04 150 52972 
Page 8 
However, the petitioner's initial description of the beneficiary's duties indicated that he would manage the 
technical department and its employees, manage and coordinate customer claims, source suppliers and 
negotiate supplier agreements, and communicate with the head of@e in India; the petitioner made no mention 
of the beneficiary's role in managing a major project to convert a building into a manufacturing plant. 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). Further, when responding to a request for evidence, a petitioner cannot offer a new position to the 
beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, or 
its associated job responsibilities. The petitioner must establish that the position offered to the beneficiary 
when the petition was filed merits classification as a managerial or executive position. Matter of Michelin 
Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). If significant changes are made to the initial request 
for approval, the petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. 
Moreover, even if the AAO accepts the later version of the beneficiary's job description as an accurate 
depiction of his proposed position, the job description submitted in response to the request for evidence is 
insufficient to establish that the beneficiary's role in the building conversion project would be primarily 
managerial or executive in nature. For example, the petitioner indicated that the beneficiary would utilize his 
expertise in building design, air handling unit and refrigeration plant selection, and laboratory and 
manufacturing design in order to "help" the petitioner implement its "Project for Pharmaceutical Formulation 
Unit." The petitioner also indicated that the benefitiary would "be responsible for Qualifying Equipments & 
facilities," and conduct "Process Equipments Qualification." Without further explanation of how the 
beneficiary will perform these duties, it appears that he will be performing technical, design-related tasks and 
quality control functions, rather than the high-level duties specified in the definitions of managerial or 
executive capacity. 
Based on the current record, the AAO is unable io determine whether the claimed managerial duties constitute 
the majority of the beneficiary's duties, or whether the beneficiary will primarily perform non-managerial 
operational duties. Although specifically requested by the director, 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). 
On appeal, the petitioner claims that the beneficiary will manage a staff of supervisors or professionals who in 
turn will supervise staff responsible for the day-to-day operations of the company. As discussed below, the 
petitioner has not established that it employed any employees would be subordinate to the beneficiary as of 
the date this petition was filed. The petitioner must establish eligibility at the time of filing the nonirnmigrant 
visa petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tiye Corp., supra. 
Initially, the petitioner claimed that the beneficiary would hire and supervise staff for the technical services 
department, but did not provide further detail regarding the beneficiary's proposed subordinates. In response 
EAC 04 150 52972 
Page 9 
to the director's request for evidence, the petitioner indicated that the beneficiary would manage two 
engineers, and would directly coordinate with external design and architectural engineers and consultants, 
contractors, state and local authorities and regulatory authorities. The petitioner also indicated that following 
commencement of manufacturing operations, the beneficiary would hire 10 to 12 maintenance engineering 
and technical staff to provide technical support to the production department. Although specifically requested 
by the director, the petitioner did not provide job descriptions for the beneficiary's proposed subordinates. 
Again, failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. $ 103.2(b)(14). 
On appeal, the petitioner claims that the beneficiary will supervise three supervisory employees, who will in 
turn supervise their own subordinate staffs of employees and contractors. However, a petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Regardless of the petitioner's subsequent 
attempts to enhance the organizational structure of the beneficiary's department, it is evident from the record 
that the petitioner only employed a chief executive officer and a vice president at the time the petition was 
filed. 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. See fj 101(a)(44)(C) of the Act, 
8 U.S.C. 110l(a)(44)(C). However, it is appropriate for CIS to consider the size of the petitioning company 
in conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. 
INS, 153 F. Supp. 2d 7,15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes 
discrepancies in the record and fails to believe that the facts asserted are the. Id. 
The petitioner has failed to establish any clear distinctions between the proposed qualifying and non- 
qualifying duties of the beneficiary. Specifically, as discussed above, the petitioner submitted no information 
to establish the percentage of time the beneficiary actually performs or .will pkrform the claimed managerial 
or executive duties. It has been noted in the record that there were only two employees worlung at the 
petitioner's branch office, and both of them have managerial or executive job titles. There is no mention in 
the record of any lower-level staff to perform the day-to-day administrative, clerical and operational functions 
the petitioning enterprise. Collectively, this brings into question how much of the beneficiary's time would 
actually be devoted to managerial or executive duties. As stated in the statute, the beneficiary must be 
primarily performing duties that are managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. 
Furthermore, the petitioner bears the burden of documenting what psrtion of the beneficiary's duties will be 
managerial or executive and what proportion will be non-managerial or non-executive. Republic of Transkei 
v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the lack of these percentages, the record does not 
demonstrate that the beneficiary will function primarily as a manager or executive. 
While the petitioner emphasizes that its corporate group employs 3000 people worldwide, and projects that 
the U.S. branch will employ over 100 people within two years, these assertions have no bearing on a 
determination as to whether this beneficiary's role within a branch office currently staffed by two employees 
EAC 04 150 52972 
Page 10 
will be primarily managerial or executive in nature. While the AAO is persuaded that the petitioning 
organization would eventually support a bona fide managerial or executive position if it realizes its plan to 
operate a manufacturing facility with 100 employees, the petitioner must show that it has sufficient staff to 
support the beneficiary in a managerial or executive capacity from the date of filing. Unlike a petitioner filing 
a "new office" petition pursuant to 8 C.F.R. 5 214.2(1)(3)(~), this petitioner will not be afforded additional - 
time to move away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. Even though the enterprise is in a 
preliminary stage of organizational development, the petitioner is not relieved from meeting the statutory 
requirements. Upon review of the vague and conflicting job descriptions provided by the petitioner, and 
considering the lack of lower-level employees available to perform non-qualifying duties at the time of filing, 
it cannot be found that the beneficiary will be employed in a qualifying managerial or executive capacity. For 
this reason, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving ekgibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.