dismissed L-1A Case: Shoe Import/Export

I Lid %@ U.S. Department of Homeland Security 
20 Mass Ave , N.W , Rm A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
mmgc CQFf - 
FILE: WAC 03 069 50055 Office: CALIFORNIA SERVICE CENTER Date: EB 0 ? 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immi~ration 
u 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(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. Wiemann, Director 
Administrative Appeals Office 
WAC 03 069 50055 
I Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnrnigrant 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 a 
nonimmigrant 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 engaged in importing and selling shoes. The petitioner claims that it is the subsidiary of the 
beneficiary's foreign employer, located in Guangdong, China. The petitioner now seeks to employ the 
beneficiary for two years. 
The director denied the petition concluding that the petitioner failed to demonstrate that the beneficiary had 
been employed abroad and would be employed in the United States in a primarily managerial or executive 
capacity. 
On appeal, counsel states that the beneficiary has been employed by the United States entity in a primarily 
managerial capacity. Counsel claims that the director based his denial on the size of the petitioner's 
personnel, which includes the beneficiary and three additional workers, and notes that the AAO has 
previously approved petitions for functional managers of a one-person office. Counsel submits a brief, and 
references several unpublished AAO decisions in support of the appeal. 
1 To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of 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. 5 214.2(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 himlher 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. 
WAC 03 069 50055 
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The director determined in his March 18,2003 decision that the beneficiary had not been employed abroad in 
a qualifying capacity. On appeal, counsel recognizes the director's decision regarding the beneficiary's 
foreign employment: yet focuses solely on the beneficiary's job responsibilities in the petitioning 
organization. As counsel did not specifically address this issue on appeal, the director's decision that the 
beneficiary was not employed by the foreign entity in a primarily managerial or executive capacity will be 
affirmed. 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. 
Comrn. 1972). For this reason, the appeal will be dismissed. 
The AAO will next address the issue of whether the beneficiary would 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), 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; 
(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) 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 
(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. 8 1 101(a)(44)(B), provides: 
The term "executive capacity" means 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 
WAC 03 069 50055 
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(iv) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the nonimmigrant petition on December 24, 2002 identifying the beneficiary as the 
president of its organization. The petitioner outlined in the petition the following past and proposed job duties 
for the beneficiary: (I) develops the company's marketing plan and strategy; (2) identifies the demand for 
products in the international market; (3) develops pricing strategies; (4) determines the company's forms of 
promotion and distribution; (5) assigns responsibilities to marketing personnel; (6) reviews marketing reports 
to ensure the achievement of objectives; (7) evaluates the performance of personnel; (8) determines company 
policies and procedures with respect to products, prices, distribution, finances and human resources; (9) sets 
business goals; (10) exercises discretionary authority in adjusting the company's policies; and (1 1) reports to 
the foreign company regarding the petitioner's performance. 
In an accompanying letter from counsel, dated December 16, 2002, counsel noted that the beneficiary, would 
continue to perform the following executive job responsibilities as president: 
1. He determines company's policies and establishes business goals. With business nature 
in mind, he considers company's marketing capability, financial capability and human 
resource. He also considers social and economic environment here in the United States. 
Then, he determines and formulates company's policies of product, price, distribution, 
promotion, finance and human resource. And he sets business goals regarding market 
share, revenue and profit. 
2. He devises the evaluation system and assigns authorities and responsibilities to his 
subordinates. He reviews marketing and financial reports to ensure that company's 
objectives are achieved. He analyzes operations to evaluate company's performance and 
to determine areas of cost reduction and program improvement. He directs financial and 
budget activities to fund operations and increase efficiency. 
3. He exercises his discretionary authority to make decisions. If business environment 
changes, he adjusts policies regarding product, price, distribution, promotion, finance and 
human resources. He determines business orientation and operation. 
4. He reports to the parent company in China. The report concerns the performance of the 
US subsidiary and business opportunities here in the United States. He also receives 
instructions and information from the parent company. 
Counsel also submitted a letter from the petitioner, dated December 16, 2002, in which the petitioner outlined 
the same job duties for the beneficiary as those provided above. The petitioner explained that the beneficiary 
would continue as the company's president and would receive an annual salary of $30,000. 
Counsel provided an organizational chart of the petitioning corporation, which identified the beneficiary as 
the president with two direct subordinate employees: a sales department manager and a secretary of the 
administrative department. One additional employee, a salesperson, was identified as a subordinate of the 
sales manager. An accompanying quarterly wage and withholding report for the quarter ending June 20,2002 
confirmed the employment of the four above-named employees. 
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In a request for evidence, dated January 6, 2003, the director asked that the petitioner submit the following 
documentary evidence demonstrating the beneficiary's qualifying employment: (1) an organizational chart 
briefly describing the job duties, educational level, annual salary, and immigration status of each employee 
supervised by the beneficiary; and (2) an explanation of the source of each employee's remuneration. 
Counsel responded in a letter dated January 27, 2003. Counsel explained that the petitioner's personnel 
included a sales manager, salesperson, and a secretary, all of who are college graduates. Counsel provided a 
brief list of job responsibilities performed by each. Counsel also provided an additional list of the 
beneficiary's job duties, which, because it is similar to those responsibilities outlined above, will not be 
repeated herein. Counsel claimed "as the number-one executive of the company, the beneficiary is 
performing primarily the duties that are characteristic of duties performed by a manager or executive." 
In his decision, dated March 18, 2003, the director determined that the petitioner did not establish that the 
beneficiary would be employed by the United States entity in a qualifying capacity. The director outlined the 
workers employed by the petitioner and noted that the beneficiary is not supervising professional, 
supervisory, or managerial employees. The director stated "[c]ounsells assertion that the submitted 
documents demonstrate that the self-petitioner qualifies for the benefit sought is not persuasive." 
Consequently, the director denied the petition. 
In an appeal filed on April 18, 2003, counsel states that the beneficiary has been employed by the United 
States entity in a managerial capacity. Counsel challenges the director's denial of the petition stating that the 
director's conclusion that the beneficiary is not supervising professional, supervisory or managerial employees 
"was drawn from the fact that the petitioning company hires only four employees, including the beneficiary 
himself." Counsel outlines the same job responsibilities for the beneficiary as those provided in her 
previously submitted December 16, 2002 letter. Counsel states that the beneficiary's major function is to 
develop business connections with United States companies, and to import and sell the foreign entity's 
footwear. 
Counsel references several unpublished AAO decisions noting that the decisions "indicate that the nature and 
level of sophistication of a petitioner's business and the scope of the beneficiary's authority are key factors in 
analyzing which petitions are approved." Counsel states that the AAO has previously approved petitions for 
functional managers and executives who are employed in a one-person office. Counsel also claims that 
"[wlhether the beneficiary is supervising any professionals is not a controlling factor in determining 
managerial control." Counsel refers to an unpublished AAO decision in which counsel states the AAO 
approved an L-1 petition for the general manager of a petitioner's North American operations who did not 
supervise any professional or supervisory employees. Counsel contends "the petitioner has established that 
the beneficiary will be employed primarily in a qualifying managerial capacity." 
On review, the petitioner has not demonstrated that the beneficiary would be employed by the United States 
entity in a qualifying 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. 5 214.2(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. 
The petitioner has not clearly identified whether the beneficiary is considered to be employed in a managerial 
capacity as defined in 101(a)(44)(A) of the Act, or an executive capacity as defined in 5 101(a)(44)(B) of 
WAC 03 069 50055 
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the Act. Counsel stated in her December 16, 2002 letter that the beneficiary would continue to be employed 
by the United States entity in an executive capacity. Yet, in both counsel's response to the director's request 
for evidence and in her brief on appeal, counsel stated that the beneficiary is performing tasks "that are 
characteristic of duties performed by a manager or executive." Counsel also states on appeal "that the 
beneficiary will be employed in a qualifying managerial capacity." A petitioner cannot claim that some of the 
duties of the position entail executive responsibilities, while other duties are managerial. See 8 C.F.R. 
5 214.2(1)(3)(ii). 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. Id. 
Although the petitioner provided an outline of the beneficiary's job duties as president, the record does not 
substantiate the petitioner's claim that the beneficiary would be performing these tasks in a primarily 
managerial or executive capacity. Based on the petitioner's representations of its personnel structure and the 
beneficiary's specific job duties, it does not appear that the petitioner employs a staff sufficient to support the 
beneficiary as a manager or an executive. The petitioner specifically notes that the beneficiary "determines 
and formulates company's policies of product, price, distribution, promotion, finance and human resource," 
"reviews marketing and financial reports," and "directs financial and budget activities." As the petitioner 
employs a subordinate staff of three employees involved in the petitioner's sales and administrative work 
only, it is reasonable to conclude that the beneficiary would be performing all functions associated with the 
petitioner's marketing and finances. 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 (Comm. 1988). 
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. As noted above, the petitioning organization employs the 
beneficiary plus a sales manager and two lower-level employees. 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 Treasure Craft of California, 14 I&N Dec. at 
193. 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 
sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 55 1101(a)(44)(A) and (B). As discussed above, the 
petitioner has not established this essential element of eligibility. 
Counsel addresses on appeal the issue of functional manager. The term "function manager" applies generally 
when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the 
Act, 8 U.S.C. § 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must identify the function with specificity, articulate the essential nature of the 
function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential 
function. In addition, the petitioner must provide a comprehensive and detailed description of the 
beneficiary's daily duties demonstrating that the beneficiary manages the function rather than performs the 
duties relating to the function. Here, counsel does not specifically identify how the beneficiary qualifies as a 
WAC 03 069 50055 
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functional manager. Rather, counsel merely cites unpublished AAO decisions as evidence of the AAO's 
previous application of the concept of a "functional manager." Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. Matter of Obaigbena, 19 I&N 
Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Furthermore. 
while 8 C.F.R. 8 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
Based on the foregoing discussion, the petitioner has failed to establish that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. For this additional 
reason, the appeal will be dismissed. 
The director also noted in his decision that the petitioner incorrectly indicated in Part 4 of the nonirnrnigrant 
petition that an immigrant petition had not been previously filed on behalf of the beneficiary. The director 
stated that in fact such a petition had been filed and was subsequently denied. The director further noted that 
the petitioner recognized that it "carelessly and unintentionally made a wrong 'tick'." Pursuant to the 
regulation at 8 C.F.R. 5 214.2(1)(2)(i) a petitioner is required to notify CIS whether a petition for the same 
beneficiary had been filed with another office. A petitionef's failure to make a full disclosure of previous 
petitions filed may result in a denial of the petition. Id. 
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.