dismissed L-1A Case: Real Estate And International Trade

U.S. Dcparlment of Homeland Security 
20 Mass. Ave, N.W . Rm A3042 
Wash~ngton, DC 20529 
File: LIN 02 184 5 1443 Office: NEBRASKA SERVICE CENTER Date: I I I-, 
, ,!d -, 15 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nhionality Act, 8 U.S.C. 4 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. 
2~bbe1-t P. Wiernann, Director 
' Administrative Appeals Office 
LIN 02 184 5 1443 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO 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 1 0 1 (a)(] 5)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. Q I lOl(a)(IS)(L). The petitioner is a limited liability company organized in the State 
of Washington that is engaged in real estate development and international trade. The petitioner claims that it 
is the subsidiary of Dalian International Economic and Technical Cooperation Corp., located in Dalian, 
China. The beneficiary was initially granted a one-year period of stay in the United States in order to open a 
new office and was subsequently granted two extensions of stay. The petitioner now seeks to extend the 
beneficiary's stay for an additional two years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary had been 
and would continue to be employed in the United States in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner submits additional evidence and descriptions with regard to the 
beneficiary's duties, and contends that this newly-submitted evidence establishes the beneficiary's eligibility 
for the benefit sought. Counsel notes that three previous 1-129 petitions granting the beneficiary's L-IA 
status have been approved, and claims that there have been no significant changes in the beneficiary's duties 
or the petitioner's business. 
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. $ 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. 
LIN02 18451443 
Page 3 
(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 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 primary issue in this 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. ji 1 lOl(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. 
LIN 02 184 51443 
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In the initial petition, the petitioner's former counsel submitted a letter dated May 9, 2002 detailing the nature 
of the beneficiary's duties. Specifically, counsel described his duties as follows: 
Exercises discretion over business operation, including strategic development plan, 
sales and marketing, deal negotiations, corporate finance and personnel management. 
He works closely with outside professionals such as CPA, attorney, architecture and 
business agents retained by the company; 
Supervises and controls the work of [the petitioner's] employees; he is responsible 
for hiring, firing, and determining compensation level and bonuses for employees; 
and 
Reports directly and be accountable to the President of [the foreign entity]. 
In addition, counsel stated that the beneficiary had three employees under his direct supervision; 
namely, a real estate development manager, an internationa1 trade manager, and an office assistant. 
On JuIy 8, 2002, the director requested additional evidence. Specifically, with regard to the beneficiary's 
claimed managerial position, the director requested a description of the beneficiary's duties as well as the 
duties and position titles of all the petitioner's employees. Additionally, the director requested clarification 
and documentation that the petitioner in fact employed three persons in addition to the petitioner, and further 
requested a breakdown of the amount of time each employee devoted to each of the identified duties. 
In a response dated August 5, 2002, the petitioner, through counsel, submitted a brief response to the 
director's request. Counsel stated that the petitioner currently employed a total of three employees, and stated 
that the real estate manager's employment with the petitioner ended on April 30, 2002. Counsel failed to 
address the director's query with regard to the beneficiary's duties and the percentage of time devoted to each 
duty. With respect to the duties of the other employees, counsel provided the following descriptions: 
As a manager of international trade at [the petitioner], Mr. is vested with 
discretion and responsibility on the company's international business operation. Mr 
b duties cover import and export transactions (60% of his time), marketing, usiness 
maintaining good relationships with existing and potential customers (25%). 
ends the remaining 15% of his time for business travel mainly within the United 
States. 
is a part time office assistant and is responsible for bookkeeping and files and 
of the company. 
On October 7, 2002, the director denied the petition. The director, found that the evidence in the record was 
insufficient to warrant a finding that the beneficiary had been and would continue to be functioning in a 
LTN 02 184 5 1443 
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capacity that was primarily executive or managerial. Specifically, the director found that the description of 
the beneficiary's duties was too vague to ascertain the exact nature of the beneficiary's daily tasks, and further 
noted that the petitioner failed to submit further details despite the request for evidence issued on July 8, 
2002. Furthermore, the director found that the beneficiary was not supervising a subordinate staff of 
professionals or managers, since the limited information provided indicated that he supervised only one 
full-time and one part-time employee. 
On appeal, counsel acknowledges the inadequacy of the petitioner's and fonner counsel's response to the 
request for evidence, and submits a detailed description of the beneficiary's actual day-to-day duties in an 
effort to prove that the beneficiary does in fact meet the requirements for managerial andlor executive 
capacity. 
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()(3(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The burden is on the petitioner to specifically state whether the beneficiary is primarily 
employed in a managerial or executive capacity. 
As previously stated, the initial description of the beneficiary's duties was insufficient. Consequently, the 
director requested additional details regarding the beneficiary's duties, the number of hours worked per week, 
and a breakdown of a typical week in the beneficiary's job. The petitioner's response failed to address the 
beneficiary's duties, and the director consequently based his decision on the initial description submitted with 
the petition. 
The petitioner failed to provide a sufficient description of the beneficiary's duties despite the director's 
specific request. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. Ij 103.2(b)(14). Although counsel has submitted a thorough 
description of the beneficiary's duties on appeal, this evidence is unacceptable. The regulation states that the 
petitioner shall submit additional evidence as the director, in his or her discretion, may deem necessary. The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $4 103.2(bj(8) and (12). 
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. fj 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Mutter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need 
not and does not consider the sufficiency of the evidence submitted on appeal. 
LIN 02 184 51443 
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The AAO, consequently, has reviewed the initial description of duties and concurs with the director's 
conclusions. The petitioner has used vague terms such as "exercises discretion" and "directs," which, as 
stated by the director, do not sufficiently describe the exact nature of the beneficiary's duties. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 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. Id. 
Consequently, it is impossible to determine, based on the current record, what the beneficiary actually does in 
the course of his employment, and how much time the beneficiary will actually allocate to 
executiveimanagerial duties. Although the record establishes that the beneficiary oversees two other 
employees, this fact alone is not enough to establish that the beneficiary qualifies as a manager, since the 
petitioner has failed to present a thorough description of the beneficiary's role in the organization. 
The petitioner has failed to establish that the beneficiary's duties are primarily managerial or executive in 
nature, and has submitted no information to establish the percentage of time the beneficiary actually performs 
or will perform the claimed managerial or executive duties. It appears From the record that there are only two 
other employees working for the petitioner, and that the beneficiary maintains a full-time position. One of 
these employees works a part-time schedule. Collectively, in addition to the inadequate description of the 
beneficiary's duties, this brings into question how much of the beneficiary's time can 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 portion 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. 
For the reasons set forth above, the petitioner has failed to establish that the beneficiary will be acting in a 
primarily managerial or executive capacity. 
Counsel 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 nonimmigrant 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 prior approvals do not preclude CIS from denying an extension of 
the originaI visa based on reassessment of the petitioner's qualifications. Texas AM Univ. v. Upchurch, 99 
Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The AAO is not required to approve applications or 
petitions where eligibility has not been demonstrated, mereIy 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 
LTN 02 184 5 1443 i 
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would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent. 
Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (I 988). 
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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 1223.ct. 51 (2001). 
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 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.