dismissed L-1A Case: Printing Services

identieing Qta deleted b 
prevent cleariy 
invasion of pemnal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC 04 165 50598 Office: CALIFORNIA SERVICE CENTER Date: APR 2 4 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 
 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 P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 165 50598 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The MO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of California 
aged in printing services. The petitioner claims that it is the subsidiary of - 
located in Shanghai, China. The beneficiary was initially granted a one-year period of stay to open 
in the United States, which was subsequently extended for an additional two years. 
 The 
petitioner now seeks to extend the beneficiary's stay for an additional 3 years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
erred by determining that the beneficiary would be directly providing the services of the business and was 
thus not a qualified manager or executive. In support of this assertion, counsel for the petitioner submits a 
brief and additional evidence. 
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. 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 
WAC 04 165 50598 
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. 3 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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 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 from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, the petitioner described the beneficiary's job duties in a letter dated May 12, 2004 as 
follows: 
WAC 04 165 50598 
Page 4 
[The beneficiary] has been very instrumental in contributing to the continuing successful 
operations and development of our US petitioner's business. As [plresident of the US 
company, [the beneficiary] has been responsible for the overall financial, administrative and 
business projects of the company. She has been formulating company business policies and 
directives for implementation by the department managers. She is directing the coordination 
among the company departments and the Chinese parent company. She has directed the 
lower managers in the establishment and improvement of systematized marketing 
transactions with the pertinent U.S. companies. 
She also manages company officers in planning business objectives to increase sales volume 
and products quality. In the process, [the beneficiary] also allocates responsibilities for the 
different company departments according to the company general business plan and parent 
company's directives. She supervises and evaluates performance of lower managers in 
compliance with company business policies and objectives. She reviews activity reports and 
business documents. Finally, she interviews and recruits corporate employees in accordance 
with the subsidiary's corporate needs. 
[The beneficiary] has been, and will continue to be, in essence, directing the management of 
[the petitioner], establishing [the petitioner's] goals and policies, exercising wide latitude in 
discretionary decision making, and receiving only general supervision from the Board of 
Directors and the Chinese parent company. Her duties are in conformance of "executive 
capacity" as defined in Title 8, Code of Federal Regulation, Part 204.50')(2). Similarly, [slhe 
has been managing [the petitioner], supervising and controlling the work of her subordinate 
managers, managing virtually all essential functions within [the petitioner] such as 
administration, financial and business development, exercising personnel authority, and 
exercising discretion over the day-to-day operations of [the petitioner]. 
In addition, the petitioner stated that the U.S. entity employs a total of six professional employees, who, it 
states, occupy such positions as President, Department Managers, Corporate Secretary, Marketing 
Representatives, and Accountant. Finally, an organizational chart outlining the hierarchical structure of the 
U.S. entity demonstrated that the beneficiary answers to the Board of Directors and directly supervises the 
Chief Financial Officer position, which is incidentally also held by the beneficiary. All other employees are 
under her supervision. 
On June 28, 2004, the director denied the petition. The director determined that the petitioner had failed to 
establish that the beneficiary had been and would continue to be employed in a primarily managerial or 
executive capacity. In consideration of the evidence submitted, the director analyzed both the stated duties of 
the beneficiary and the size of the petitioning entity in reaching the decision. 
On appeal, counsel for the petitioner asserts that the director's conclusions were erroneous. Specifically, the 
petitioner asserts that the beneficiary functions at the highest level within the petitioner's hierarchy and directs 
the petitioner's key components, functions, and the company as a whole. Furthermore, counsel asserts that the 
WAC 04 165 50598 
Page 5 
beneficiary in fact oversees a subordinate staff of professionals, and therefore qualifies as a primarily 
managerial employee. 
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. 
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 must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 
In this case, the petitioner initially gave a general overview of the beneficiary's duties in its May 12, 2004 
letter. In that letter, generalizations were made with regard to the standard activities of the beneficiary. For 
instance, the petitioner advised that she "has been, and will continue to be, in essence, directing the 
management of [the petitioner], establishing [the petitioner's] goals and policies, exercising wide latitude in 
discretionary decision making, and receiving only general supervision from the Board of Directors and the 
Chinese parent company." The AAO notes that this sentence is almost identical to the regulatory definition of 
executive capacity. 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. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Nevertheless, this kind of generalized statement does little to clarify the exact nature of the beneficiary's job, 
her responsibilities, and her daily functions. Reciting the beneficiary's vague job responsibilities or broadly- 
cast business objectives is not sufficient; the regulations require a detailed description of the beneficiary's 
daily job duties. The petitioner has failed to answer a critical question in this case: What does the beneficiary 
primarily do on a daily basis? The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1 108, afd, 905 F.2d 41. 
The petitioner also stated in the May 12, 2004 letter that the beneficiary is "managing virtually all essential 
functions within [the petitioner] such as administration, financial and business development. . . ." Although 
the petitioner claims to employ professional subordinate employees beneath the beneficiary, it fails to explain 
why the beneficiary is engaged in such a wide array of fields, and how the subordinate employees relieve her 
from these obligations. Whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of proving that her duties are "primarily" managerial or executive. See 
sections 101(a)(44)(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 those cited above, do not fall directly under traditional 
managerial or executive duties as defined in the statute. For this reason, the AAO cannot determine whether 
WAC 04 165 50598 
Page 6 
the beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Furthermore, the petitioner claims that the beneficiary is a qualified manager because she supervises a 
subordinate staff of professionals. The record indicates that the beneficiary oversees (1) an Import and Trade 
Department Manager; (2) a Distribution and Sales Department Manager; (3) a Corporate SecretaryJMarketing 
Representative; (4) a Trade Specialist; and (5) a Marketing Representative. The petitioner has provided a 
brief description of the duties associated with these positions, but fails to clearly explain the manner in which 
these employees relieve the beneficiary from performing non-qualifying tasks. Furthermore, there is no 
definitive evidence that these subordinate employees are professionals. 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 fj 
lOl(a)(44)(A)(ii) of the Act. 
Although the petitioner noted in general the educational achievements of the subordinate employees (only the 
Import and Trade Department Manager had a college degree), the petitioner did not provide the level of 
education required to perform the duties of its marketing and sales representatives. While attainment of a 
college degree is commendable, there is no evidence in the record to establish that the positions these persons 
fill require an advanced degree, such that they could be classified as professionals. Nor has the petitioner 
shown that either of these employees supervise subordinate staff members or manage a clearly defined 
department or function of the petitioner, such that they could be classified as managers or supervisors. Thus, 
the petitioner has not shown that the beneficiary's subordinate employees are supervisory, professional, or 
managerial, as required by section 101(a)(44)(A)(ii) of the Act. Merely submitting an organizational chart 
with the beneficiary at the top, and alleging that the subordinates are all professionals does not satisfy the 
petitioner's burden of proof. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The AAO further notes that the director relied in part on the size of the U.S. petitioner in rendering the 
decision in this matter. As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, Citizenship and 
Immigration Services (CIS) must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. To establish that the reasonable needs of the 
organization justify the beneficiary's job duties, the petitioner must specifically articulate why those needs are 
reasonable in light of its overall purpose and stage of development. In the present matter, the petitioner has 
not explained how the reasonable needs of the petitioning enterprise justify the beneficiary's performance of 
non-managerial or non-executive duties. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm. 1998). 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See fj fj 101(a)(44)(A) 
and (B) of the Act, 8 U.S.C. 4 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary 
WAC 04 165 50598 
Page 7 
who allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent, but those 
needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying duties. Once 
again, the vague description of duties here, which seem most often to paraphrase the regulatory definitions, 
fail to establish that the beneficiary's duties are primarily managerial or executive. The mere allegation that 
the beneficiary is a qualified manager or executive, without documentary evidence to support the claim, is 
insufficient to satisfy the burden of proof in these proceedings. See Matter of SofJici, 22 I&N Dec. at 165. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. In addition, the unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Finally, counsel further refers to numerous unpublished decisions in which the AAO determined that the 
beneficiary met the requirements of serving in a managerial and executive capacity for L-1 classification. 
Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in 
the unpublished decisions. While 8 C.F.R. 9 103.3(c) provides that AAO precedent decisions are binding on 
all CIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The petitioner indicates that it plans to hire additional managers and 
employees in the future. However, the petitioner must establish eligibility at the time of filing the 
nonimmigrant 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 Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily or 
managerial capacity, as required by 8 C.F.R. 9 214.2(1)(3). 
Beyond the decision of the director, the regulation at 8 C.F.R. 8 214.2(1)(3)(i) states that the petitioner is 
required to submit evidence that the prospective United States employer and the beneficiary's foreign 
employer have a qualifying relationship as defined in 8 C.F.R. 9 214.2 (l)(l)(ii)(G) 
In the instant matter, the petitioner claims to be a wholly owned subsidiary of- 
location in China. In support of this claim, the petitioner has provided a number of documents including 
stock certifications, a stock transfer ledger, a California Notice of Transactions, and evidence of a wire 
transfer in the amount of the purchased stock. However, the documentation of the wire transfer indicates that 
Foreign Economic & Trading Co., Ltd. Was the originator of the funds used to purchase 
the petitioner's stock. The petitioner has explained that the foreign parent entity entrusted the actual fund 
transfer to a third party company, which the petitioner claims was legally authorized by the Chinese 
government to handle foreign exchange matters. However, the petitioner has not provided any documentation 
to support its claims regarding the authority to engage in foreign exchange matters; nor 
has the petitioner provided any documentation establishing what China's foreign monetary exchange policies 
were at the time the fund transfer took place. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N 
WAC 04 165 50598 
Page 8 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BL4 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the instant matter, the record does not clearly establish that the claimed foreign entity 
actually paid for its ownership of the U.S. petitioner's stock. Therefore, the AAO cannot conclude that the 
beneficiary's foreign employer and the U.S. petitioner have a qualifying relationship as claimed. 
In addition, the petitioner noted that CIS approved other petitions that had been previously filed on behalf of 
the beneficiary. The director's decision does not indicate whether he reviewed the prior approvals of the other 
nonimmigrant petitions. If the previous nonirnmigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. The MO is not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that 
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat achowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 
U.S. 1008 (1988). The prior approvals do not preclude CIS from denying an extension of the original visa 
based on reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 
WL 1240482 (5th Cir. 2004). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the MO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
When the MO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
WAC 04 165 50598 
Page 9 
sought remains entirely with the petitioner. Section 29 1 of the Act, 8 U.S.C. tj 136 1. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.