dismissed L-1A Case: Plastic Film Manufacturing And Sales

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U.S. Department of Homeland Security 
20 Mass, Rm. A3042,425 1 Street, N.W. 
Washington, DC 20529 
U. S. Citizenship 
$-. ,;r to and Immigration .. * i. .\. 
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FILE: EAC 03 045 54090 Office: VERMONT SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 lOl(a)(l 5)(L) 
ON 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 P. Wiernann, Director ,' 
b 
dministrative Appeals Office 
EAC 03 045 54090 
Page 2 
DISCUSSION: The ~irector,' Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner is engaged in the manufacturing and sale of plastic films and equipment imported from the 
foreign parent company. The petitioner currently employs the beneficiary as its vice president of North 
American operations, and seeks to extend the employment of the beneficiary for an additional two years. The 
petitioner filed a petition to extend the beneficiary's classification as a nonimmigrant intracompany 
transferee. The director denied the petition concluding the beneficiary has not been and would not be 
employed in the U.S. entity in a primarily managerial or executive capacity. 
On appeal, counsel contends that Citizenship and Immigration Services' (CIS) denial of the petition was 
arbitrary. Counsel asserts that sufficient evidence has been presented to substantiate the petitioner's claim 
that the beneficiary is functioning in the U.S. organization as a "management executive." Counsel submits a 
letter and additional documentation in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section lOl(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, a qualifying organization must 
have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year. In addition, the beneficiary must seek to enter the United States 
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate thereof 
in a managerial, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. 3 214.2(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 hirnlher to perform the intended services in the United States; 
however, the work in the United States need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. €j 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(a) Evidence that the United States and foreign entities are still qualifying organizations as 
defined in paragraph (I)(l)(ii)(G) of this section; 
EAC 03 045 54090 
Page 3 
(b) Evidence that the United States entity has been doing business as defined in paragraph 
(l)(l)(ii)(H) of this section for the previous year; 
(c) A statement of the duties performed by the beneficiary for the previous year and the duties 
the beneficiary will perform under the extended petition; 
(d) A statement describing the staffing of the new operation, including the number of employees 
and types of positions held accompanied by evidence of wages paid to employees when the 
beneficiary will be employed in a management or executive capacity; and 
(e) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the beneficiary would be employed in the U.S. entity in a primarily 
managerial or executive capacity.' 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(I) Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(2) Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential fimction withn the organization, or a department or 
subdivision of the organization; 
(3) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(4) Exercises discretion over the day-to-day operations of the activity or hction for which 
the employee has authority. A first-line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised 
are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. fj 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
' As a new office, the petitioner is not required to have employed the beneficiary in a primarily managerial or 
executive capacity during the year prior to the present petition. See 8 C.F.R. tj 214.2(1)(3)(~). Therefore, the 
AAO will not consider on appeal whether the beneficiary had been employed in the United States in a 
primarily managerial or executive capacity. 
EAC 03 045 54090 
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(I) Directs the management of the organization or a major component or function of the 
organization; 
(2) Establishes the goals and policies of the organization, component, or function; 
(3) Exercises wide latitude in discretionary decision-malung; and 
(4) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
In a November 8, 2002 letter appended to the petition, the petitioner outlined the following job duties of the 
beneficiary: 
Formulating business strategies 
Overall planning and management of the company 
Coordinating market strateges to promote company products in the U.S. 
Creating a marketing division 
Monitoring the company's performance 
Reporting to the Indian parent company 
Establishing distribution networks 
Developing new relationships and alliances with companies including the execution of 
contracts with American corporations 
Negotiating contracts with companies in North America 
The petitioner explained that during the beneficiary's previous year of employment in the U.S. entity he has been 
successful in negotiating and securing contracts with U.S. companies, and is actively involved in marketing the 
parent company's products. The petitioner also submitted copies of the beneficiary's resume and transcripts as 
evidence of his qualifications for classification as an intracompany transferee. 
In a notice of action dated December 10,2002, the director requested that the petitioner submit the following: (1) 
the year 2001 Internal Revenue Service (IRS) Form 1120, U.S. Corporation Income Tax Return; (2) the two most 
recent IRS Form 941, Employer's Quarterly Federal Tax Return, including the names of all employees and the 
wages paid to each; (3) documentation pertaining to any contractors employed by the petitioner; (4) an 
organizational chart of the U.S. company, including each employee's job description; (5) a copy of the U.S. 
entity's stock ledger; and (6) photographs of the U.S. office premises. 
The petitioner responded to the director's request on December 26, 2002. Included in the petitioner's response 
was the petitioner's organizational chart, in which four employees were identified as a director, vice president, 
sales representative, and bookkeeperloffice manager. The beneficiary's subordinates included the sales 
representative, who the petitioner identified as a contractor, and the bookkeeperloffice manager. Also included 
was a description of each employee's job duties, in which the petitioner outlined similar job responsibilities of the 
beneficiary to those provided above. The petitioner also included the specific tax forms requested by the director. 
In a decision dated January 4, 2003, the director concluded that the record contained insufficient evidence 
regarding the staffing of the U.S. organization to establish the beneficiary's employment in a managerial or 
EAC 03 045 54090 
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executive capacity. The director noted that the beneficiary would not be supervising a subordinate staff of 
professional, managerial, or supervisory personnel who would relieve hm from performing non-qualifying job 
duties. The director also stated that the petitioning corporation has not reached "a level of organizational 
complexity wherein the hiringlfiring of personnel, discretionary decision-malung, and setting company goals and 
policies constitute significant components of the [beneficiary's] duties performed on a day-to-day basis." 
Consequently, the director denied the petition. 
On appeal, counsel states that the director's denial incorrectly assumes the beneficiary's ineligibility "due to the 
fact that the company has only a few employees." Counsel Wher states that because the petitioner is a newly 
established company, "it was and still is not financially viable for the company to hire a large number of 
employees." Counsel contends that sufficient evidence has been provided to demonstrate the beneficiary's 
employment as a management executive in the U.S. entity. Counsel also submits the petitioner's payroll journal 
and summary reports, bank account statements, year 2001 corporate income tax return, employer's quarterly tax 
return for the period ending December 2002, and financial statements. 
On appeal, the record does not establish that the beneficiary would be employed in the U.S. entity in a primarily 
managerial or executive capacity. When examining the executive or managerial capacity of the beneficiary, 
the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 3 214.2(1)(3)(ii). As 
required in the regulations, the petitioner must submit a detailed description of the executive or managerial 
services to be performed by the beneficiary. Id. 
In the present matter, 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. Counsel states on appeal that the beneficiary is functioning as a 
"management executive." A petitioner may not claim to employ the beneficiary as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. A petitioner must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are either in an 
executive or managerial capacity. See 8 C.F.R. fj 214.2(1)(3)(ii). If a petitioner claims a beneficiary is both a 
manager and executive, the petitioner 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. Counsel has not 
satisfied this burden. 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). 
Furthermore, the beneficiary's job description does not support a finding that the beneficiary would be employed 
in the U.S. entity in a primarily managerial or executive capacity. There is insufficient evidence to establish that 
the beneficiary "supervises and controls the work of other supervisory, professional, or managerial employees" or 
"directs the management of the organization." 8 C.F.R. $3 214.2(1)(l)(ii)(B)(2) and (C)(l). While the petitioner 
stated in its response to the director's request for evidence that the beneficiary supervises the company's 
"professional personnel," there is no evidence beyond the assertions of the petitioner that its two subordinates, a 
bookkeeperloffice manager and a sales representative, are in fact professionals, or may be deemed 
"management," as required in the regulations.2 
2 Even though the bookkeeper is gwen the joint title of office manager, the petitioner has not identified any 
subordinate employees whom she is managng. Absent additional evidence, the bookkeeper cannot be considered 
"management" for purposes of determining the beneficiary's executive capacity. 
EAC 03 045 54090 
Page 6 
In evaluating whether the beneficiary manages "professional" employees, the AAO must focus on the level of 
education required by the position, rather than the degree held by subordinate employee. See Matter of Sea, 
19 I&N Dec. 8 17 (Cornrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 1 1 I&N Dec. 
686 (D.D. 1966) (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 study of at least 
baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor). 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 stated that vocational training is the only prerequisite to employment as the bookkeeper-office 
manager. Additionally, although the petitioner noted that a minimum of a bachelor's degree is required for 
employment as a sales representative, the petitioner has not demonstrated that an advanced degree is actually 
necessary to perform the job duties required in this position, or that the petitioner's sales representative 
actually possesses a bachelor's degree. Therefore, the record does not conclusively establish that the 
beneficiary's subordinates are supervisory, professional, or managerial employees. 
The record also fails to demonstrate that the beneficiary "establishes the goals and policies of the organization, 
component, or function." 8 C.F.R. 9 214.2(1)(l)(ii)(C)(2). The petitioner stated that the beneficiary develops 
company policies and business objectives. However, the petitioner also explained that the director, to whom the 
beneficiary reports, "plans business objectives and develop[s] organizational policies." The petitioner did not 
specifically differentiate between the policies and objectives that the beneficiary plans and those planned by the 
company's director. The petitioner is responsible for ambiguities in the record, and it is incumbent upon the 
petitioner to resolve the inconsistencies by independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
Pursuant to section 10 1 (a)(44)(C) of the Act, 8 U.S.C. 9 1 10 1 (a)(44)(C), it is also appropriate for Citizenship 
and Immigration Services (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 true. Id. In the present matter, the petitioner has not explained how 
the reasonable needs of the U.S. corporation, which has accrued more than $2,000,000 in goods sold, might 
plausibly be met through the employment of a director, the beneficiary, a salesman, who the petitioner claims 
is responsible for sales in all regions of the United States, and a bookkeeper. Regardless, the reasonable 
needs of the petitioner serve only as a factor in evaluating the lack of staff in the context of reviewing the 
claimed executive duties. The petitioner must still establish that the beneficiary is to be employed in the 
United States in a primarily managerial or executive capacity, pursuant to section 101(a)(44)(B) of the Act. 
As discussed above, the petitioner has not established this essential element of eligibility. 
Counsel asserts on appeal that as a newly established company, the petitioner is not "financially viable" to 
hire additional employees. Counsel's claim has no merit. The regulation at 8 C.F.R. 9 214.2(1)(3)(v)(C) 
allows the intended United States operation one year within the date of approval of the petition to support an 
executive or managerial position. There is no provision in CIS regulations that allows for an extension of this 
EAC 03 045 54090 
Page 7 
one-year period. If the business is not sufficiently operational after one year, the petitioner is ineligible by 
regulation for an extension. 
For the foregoing reasons, the record does not demonstrate that the beneficiary would be employed in the U.S. 
organization in a primarily managerial or executive capacity. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.