dismissed L-1A Case: Rubber Products

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File: WAC-03-138-50066 Office: CALIFORNIA SERVICE CENTER Date: FE5 1 8 2005 
Petition: Petition for a Nonirnmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 lOl(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. 
&Tbert P. Wiemann, Director 
Administrative Appeals Office 
WAC-03-138-50066 
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 AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its General Manager as 
an L-1A nonirnmigrant intracompany transferee pursuant to section 101(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 that is solid rubber products. The petitioner claims that 
it is the subsidiary o in Taipei, Taiwan. The beneficiary was 
initially granted in the United States and the petitioner now 
seeks to extend 
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's 
decision was "not according to laws and fact," as the beneficiary is employed in a primarily managerial 
capacity. In support of this assertion, the counsel 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 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. 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 (I)(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 
WAC-03-1 38-50066 
Page 3 
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. 5 214.2(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 (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(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 primary 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. 5 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 authority. A first line supervisor is not considered to he 
WAC-03-138-50066 
Page 4 
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. 3 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 stated that the beneficiary's duties include "[s]upervis[ing] [its] business 
operation, marketing of solid rubber products by using salespersons, and various administrative duties." In an 
attached letter, the petitioner further stated: 
Our business expansion plans are being implemented by [the beneficiary]. His strategy in 
promote [sic] our products has gained a wide range of exposure throughout the entire United 
States. . . . [The beneficiary] has attended at [sic] several trade exhibitions and have [sic] 
contacted buyers from various cities in the U.S.A. [The beneficiary] has an important role in 
our business expansion plans. 
On April 8, 2003, the director requested additional evidence to show that the beneficiary has been and will be 
employed in the United States in a primarily managerial or executive capacity. Specifically, the director 
requested: (1) a detailed description of the beneficiary's duties in the United States, including the percentage 
of time he spends on each task, and the education and employment qualifications for his position; (2) a list of 
all of the employees under the beneficiary's direction; (3) a line and block organizational chart for the 
petitioner that reflects the names of all executives, managers, and supervisors, as well as all employees under 
the beneficiary's supervision with their names, titles, job duties, entry dates of employment, education level, 
and salaries or wages paid within the previous 12 months; and (4) a clear indication of whether the 
beneficiary will supervise and control the work of other supervisory, professional, or managerial employees, 
and if so, their names, job titles, and duties. 
In response, the petitioner submitted a detailed statement describing the beneficiary's duties in the United 
States and an organizational chart, providing each employees' name, title, educational level, compensation, 
date of entry into employment, and a brief phrase to describe his or her respective duties. In the statement, 
the petitioner provided that the beneficiary "obtained a Bachelor Degree of Business Administration in June 
1996 at the Fu Jen Catholic University in Taipei, Taiwan." The petitioner described the beneficiary's duties 
as follows: 
WAC-03-138-50066 
Page 5 
Percentage of time spent in each duty as a General Manager of [the petitioner]: 
50% Time Spent - Duties of sales and marketing which include the followings [sic]: 
Advertisement: To select related magazine, such as Asphalt Contractor, Better Road, 
Equipment Today, Heavy Equipment News and Pavement etc. 
Research for Machine Model: To search for qualified machinery and model products. . . . 
Hold Meetings with Sales Manager: Provide opinions to the sales manager, to review sales 
strategy, sales amount quantity and items. 
Contact with Original Equipment Manufacturer (OEM): Visit OEM customers and introduce 
our products to them. Try to become OEM parts suppliers. 
New Customer Accounts: Find new dealers and customers and open new accounts 
Business Visits: Visit the end users and dealers at least once a month. 
Search New Leads: Collect huge data base of potential customers. 
Join Construction and Distributors Association: Join different construction [and] distributor 
associations, take the opportunities to expose our company and to meet with other members. 
Using this method have [sic] resulted in many new distributors. 
Setting process for the End User and Dealers: Suggest the retail price according to market 
situation. 
Explore Business Location in the East Coast: Ideally, we want a location in New Jersey 
15% Time Spent - Office Operation and Management: 
Contact with trucking companies: Establish accounts with trucking companies to get a better 
rate and service. 
Staff Meeting: Meeting with all staff members once a month to make sure everything is 
running properly, such as accounting and warehouse. 
10% Time Spent - Human Resources: 
Recruit Staff: Recruit new sales person and other staff as required. Supervision of all staff 
members. 
WAC-03-138-50066 
Page 6 
15% Time Spent - Research and Development: 
New Product Lines: To add new product lines according to customers' needs. Trying to 
become the dealers' distributor of U.S. made products or imported related products from 
overseas. 
10% Time Spent - Finance and Accounting: 
Account Systems: Setting up accounting system by using Quick book software system. 
Company Account: To review company account and make decision on budgets. 
The organizational chart provided by the petitioner identified four employees in addition to the beneficiary, 
with the titles "Secretary," "Sales Manager," "Store/Warehouse Keeper," and "Salesperson." The chart 
indicated that the salesperson completed a two-year associates degree, and the other three e~nployees 
completed high school education or received a high school diploma. 
On May 2,2003, the director denied the petition. The director determined that the petitioner did not establish 
that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
Specifically, the director stated that it appears that the beneficiary's subordinates are engaged in non- 
managerial duties, and thus the record does not reflect that the beneficiary will be supervising professionals 
who will relieve him from performing non-qualifying duties. The director further stated that "the record 
indicates that a preponderance of the beneficiary's duties will be directly providing the services of the 
business," and that the description of the beneficiary's duties does not "demonstrate that [he] would be 
managing the organization, or managing a department, subdivision, function, or component of the company." 
The director found that "[tlhe petitioner has not shown that the beneficiary would be functioning at a senior 
level within an organizational hierarchy." 
On appeal, counsel for the petitioner asserts that the director's decision was "not according to laws and fact," 
as the beneficiary is employed in a primarily managerial capacity. In support of this assertion. counsel 
submits a brief and additional evidence. In the brief, counsel describes the petitioner's business operations, 
including the facts that it has an established warehouse with inventory, it has visited trade shows, and it 
employs four workers. Counsel asserts that the petitioner's sales manager has the equivalent of a bachelor's 
degree in marketing due to his alleged 20 years of sales experience. Counsel explains that the sales manager 
supervises two salesmen. Counsel states that the petitioner's accounting is relatively simple, and it has a 
secretary-accountant to perform the basic financial tasks of the company. Counsel further explains that the 
petitioner uses an outside accounting firm for the preparation of various tax and financial documents. 
Counsel asserts that one employee is in charge of the operations of the warehouse, including keeping 
inventory and sending and receiving shipments. Counsel indicates that the warehouseman's and the 
secretary's decisions are subject to the review and approval of the managers. Counsel states that "[the 
beneficiary] has been directing the overall operation of [the petitioner] and he is spending most of his time 
managing the staff." 
WAC-03- 138-50066 
Page 7 
Counsel discusses the petitioner's future expansion plans, including the intention to visit more trade shows 
and to hire additional staff. Counsel further explains that the petitioner plans to form sales agreements with 
additional salespeople on a commission basis. Counsel states that "[wle need additional time in which to 
increase our sales. As we increase our sales, we will be able to increase our staffing." 
Counsel provides a new organizational chart and employee list that reflect several staffing changes since the 
date of the request for evidence. Counsel also submits a statement from the beneficiary describing the 
staffing of the petitioner. In the statement, the beneficiary provides that the sales manager "is involved with 
the overall solicitation of sales," and he "supervises the [two] salesmen." The beneficiary identifies a new 
individual as the administrative assistant and salesman, and he indicates that this employee has a bachelor's 
degree in English with experience in management and sales. The beneficiary states that the secretary 
resigned, and the petitioner is currently seeking a replacement. 
The beneficiary describes his own duties as follows: 
Most of my time is spent on management services. I have [sic] not involved with any more 
than 10% of my time in actual work. 90% of my time is spent managing the four (4) 
employees and trying to locate sales representatives and additional staff. I have been 
instructed by the Chief Executive Officer in our parent company in Taichung, Taiwan, to 
expand the operation of our company by engaging many more Sales Representatives to sell 
our products throughout the United States. 
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. Whether the beneficiary is a managerial or executive employee turns on whether the petitioner 
has sustained its burden of proving that his duties are "primarily" managerial or executive. Set? sections 
101 (a)(44)(A) and (B) of the Act. 
Based on the current record, the AAO is unable to determine whether the claimed managerial tasks constitute 
the majority of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial 
administrative or operational duties. The petitioner has given a list of the beneficiary's duties grouped into 
categories, with an indication of the percentage of time the beneficiary devotes to each group. Yet, within 
each group, the petitioner has not indicated the amount of time the beneficiary spends on each task. As most 
of these groups contain a combination of tasks that are non-managerial and managerial, the AAO is unable to 
determine the total amount of time the beneficiary spends on managerial or executive duties from the 
information given. For example, the petitioner indicates that the beneficiary spends 50 percent of his time 
performing tasks such as: (1) selecting magazines for advertising; (2) holding meetings with the sales 
manager; (3) visiting customers to introduce the petitioner's products; (4) opening new accounts with dealers 
and customers; (5) collecting a database of potential customers; and (6) joining associations to expose the 
petitioner's products. Of these duties, only "holding meetings with [the] sales manager" appetars to be 
WAC-03-138-50066 
Page 8 
managerial. The majority of duties encompassed by this group that accounts for 50 percent of the 
beneficiary's time are clearly non-managerial sales functions. Thus, in analyzing this group of tasks, the 
AAO cannot determine what portion of the 50 percent of the beneficiary's time is spent on managerial duties. 
The same problem is presented with the group of responsibilities labeled, "Finance and Accounting," as the 
included duty of "mak[ing] decisions on budgets" is arguably managerial, while the included duty of "setting 
up [an] accounting system by using [Quickbooks] software" is not. Likewise, the group labeled, "Office 
Operation and Management," includes the duty of "meeting with all staff members once a month," which is 
arguably managerial, while it also includes the duty of "[establishing] accounts with trucking companies to 
get a better rate and service" which is non-managerial. 
Further, in the statement by the beneficiary submitted on appeal, he provides that "90% of [his] time is spent 
managing the four (4) employees and trying to locate sales representatives and additional staff." This 
assertion is inconsistent with the breakdown of his duties provided in the response to the director's request for 
evidence, as described above. Few of the duties listed in the petitioner's breakdown of the beneficiary's 
duties actually involve managing the petitioner's staff or recruiting new personnel. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any a.ttempt 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). 
Thus, the beneficiary's job description does not allow the AAO to determine whether the beneficiary would 
primarily perform in a managerial or executive capacity as defined in sections 101(a)(44)(A) and (B) of the 
Act. 
Counsel indicates that the beneficiary will manage subordinate personnel. Although the beneficiary is not 
required to supervise personnel, if it is claimed that his duties involve supervising employees, the petitioner 
must establish that the subordinate employees are supervisory, professional, or managerial. See section 
101(a)(44)(A)(ii) of the Act. In evaluating whether the beneficiary manages professional employees, the 
AAO must evaluate whether the subordinate positions required a baccalaureate degree as a minimum for 
entry into the field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe term 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers 
in elementary or secondary schools, colleges, academies, or seminaries." The term "profession" contemplates 
knowledge or learning, not merely 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. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N 
Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not established that a bachelor's degree is actually 
necessary to perform the work of the beneficiary's subordinates. Only one of the beneficiary's subordinates 
allegedly possesses a university-level degree, namely, the individual with the title "administrative assistant 
WAC-03-138-50066 
Page 9 
and sales" completed a bachelor's degree in English. Yet, the petitioner has not established that academic 
study in English is helpful or required to perform the tasks of this employee. Accordingly, this employee is 
not deemed a professional due to his completion of a baccalaureate program. Counsel asserts that the 
petitioner's sales manager possess the equivalent of a bachelor's degree in marketing due to his purported 20 
years of sales and management experience, yet counsel has provided no documentation to support this 
assertion. 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). Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The 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). 
The petitioner indicates that the sales manager supervises two salesmen. Yet, counsel asserts that the 
beneficiary manages the other four employees of the petitioner. In fact, as discussed above, the beneficiary 
submits a statement in which he avers that "90% of [his] time is spent managing the four (4) employees and 
trying to locate sales representatives and additional staff." Thus, the record is not clear regarding who 
actually manages the two salesmen on a daily basis. Accordingly, the AAO cannot determine whether the 
sales manager is truly a supervisory employee, such that the beneficiary manages a supervisory subordinate as 
contemplated by section 101(a)(44)(A)(ii) of the Act. 
Therefore, the petitioner has not established that the beneficiary supervises subordinate employees who are 
supervisory, professional, or managerial. See 5 lOl(a)(44)(A)(ii) of the Act. 
Counsel states that the petitioner has future plans to expand, and it needs more time to increase its sales and 
staffing level. The beneficiary reports that he has been instructed by the parent company in Taiwan to expand 
the petitioner's operations. However, a visa petition may not be approved based on speculation of future 
eligibility or after the petitioner becomes eligible under a new set of facts. See Matter of Michelin fire Corp., 
17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Cornrn. 19'71). The 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. Matter oj'Michelin 
Tire Corp., 17 I&N Dec. at 248. Thus, the petitioner's intention to expand and hire additional workers in the 
future does not support that the beneficiary was eligible for L-IA classification as of the date of filing the 
present petition. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3). For this reason, the appeal will be 
dismissed. 
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.