dismissed L-1A Case: Sign Making And Property Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of IIomeland Security 
20 Massachusetts Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 05 003 52157 Office: TEXAS SERVICE CENTER Date: AUG 0 4 2006 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1 (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, Chief v '0 
Administrative Appeals office 
SRC 05 003 52157 
Page 2 
DISCUSSION: The Director, Texas 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 employ the beneficiary 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. !j 1101(a)(15)(L). The petitioner, a United Kingdom corporation, claims to be an affiliate of the U.S. 
company, a Florida corporation engaged in sign making and property management services. It seeks to 
transfer the beneficiary to the United States to serve as the sales and marketing manager of the U.S. entity for 
a three-year period. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a qualifyng managerial or executive capacity. Specifically, the director 
observed that the beneficiary would not supervise a staff of managerial, professional or supervisory personnel. 
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 disputes the director's 
decision, claiming that the beneficiary will manage an essential function of the U.S. entity and is not required 
to supervise managerial, professional or supervisory personnel. Counsel also asserts that the director 
understated the number of employees to be supervised by the beneficiary, and placed undue emphasis on the 
number of employees working for the U.S. entity. Counsel submits a brief and additional evidence in support 
of the appeal. 
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 qualifyng 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 (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. 
SRC 05 003 52157 
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 issue in the present matter is whether the petitioner established that 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. 9 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 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. 9 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. 
SRC 05 003 52157 
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The nonimmigrant petition was filed on October 1, 2004. In a September 1, 2004 letter, the petitioner noted 
that the U.S. company "does business in several area's [sic] including the [slip business and [plroperty 
management." The petitioner provided the following description of the beneficiary's proposed duties: 
[The beneficiary's] responsibilities in the US will be primarily within the [slign business. 
[The beneficiary's] duties as Sales & Marketing manager of the US company will include 
overseeing all personal [sic] of the company other than the President & Vice President in 
charge of all aspects of the Marketing & Sales growth for the company, Working with the 
customers regarding their explicit requirements, discussing their budgets, specification and 
ensuring work is completed to customer satisfaction within the set time scale. Working 
closely with the US staff of the company introducing his knowledge and expertise, 
[ilmplementing a business plan and Financial budget to allow continuous growth. 
On October 15, 2004, the director requested additional evidence, in part instructing the petitioner to submit: 
(1) a copy of the U.S. company's organizational chart identifying the beneficiary's proposed position, the 
positions he will supervise, and the educational requirements for each position; (2) copies of the U.S. 
company's state quarterly tax returns for the 2004 year; and (3) evidence of the current staffing level in the 
United States including position titles, duties and educational background of all employees. 
The petitioner submitted a response dated October 21, 2004. The petitioner's response included an 
organizational chart for the U.S. company showing that the beneficiary would report to the managing director 
and supervise one employee, a designer.' The chart shows that the managing director also supervises a 
president, who in turn supervises a reservations manager. The petitioner submitted the requested Florida 
Forms UCT-6, Employer's Quarterly Report, confirming the U.S. company's employment of four individuals 
as of September 30,2004. 
The petitioner provided job descriptions for each of the U.S. company's four employees. With respect to the 
beneficiary's proposed subordinate, the graphic designer, the petitioner stated that he is responsible for: taking 
instructions from customer and designing to their specifications; creating files for vinyl cutting or digital 
printing; and "weeding Vinyl's and laying up signage." The petitioner noted that the president oversees the 
manufacture of all signage and fitting, consults with customers and discusses their requirements, performs 
invoicing, purchase of materials, quoting, banking, settlement of accounts, and "all administrative duties" 
associated with the U.S. company's sign business, as well as overseeing the petitioner's property management 
and rental business. The petitioner indicated that the U.S. company's secretary is responsible for "all 
accounting and administration," reservations, banking, homeowner statements, payroll and tax matters, year 
end accounting, licensing of homes, and meeting with homeowners. The petitioner stated that the U.S. 
1 
On the attached list of employees, the individual depicted on the organizational chart as the U.S. company's 
"managing director" is identified as "president" and the "president" is identified as "secretary." It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt 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). 
SRC 05 003 52157 
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company "engages no persons of Professional status," noting that formal education beyond the secondary 
level is not required in the industry. 
The director denied the petition on November 5, 2004, concluding that the petitioner had not established that 
the beneficiary would be employed in a primarily managerial or executive capacity in the United States. The 
director noted that the beneficiary would supervise only one employee and would not be supervising a 
subordinate staff of professional, managerial or supervisory personnel. 
The petitioner filed the instant appeal on November 30, 2004. On appeal, counsel for the petitioner asserts 
that the director failed to consider whether the beneficiary would manage an essential function of the U.S. 
company, noting that the Immigration Act of 1990 "specifically bars the number of persons supervised as the 
sole basis for denying managerial status to an employee." Counsel contends that the beneficiary will manage 
the essential function of the petitioner's sales and marketing department and is not required to supervise 
professional, managerial or supervisory employees. Counsel asserts that the AAO should consider the 
economic importance of the function in relation to the product or service provided by the company, and 
emphasizes that the U.S. entity's sales and marketing department "plays a pivotal role in the economical 
ability of the company to continue to grow." 
In support of the appeal, the petitioner submits a November 22, 2004 letter from its vice president who 
provides the following additional information: 
There are several other employees or subcontractors that [the beneficiary] would supervise. 
There are several people who work for our company on a regular basis, but do [sic] to their 
tax situation are considered independent contractors and not employees of the company. . . . 
Jason Begley, who is listed as a designer in the original organizational chart that was 
submitted, has been acting as the manager of the business. The intention was for [the 
beneficiary] to supervise when he received his visa and would devote 
more of his time to the creative side of the business. Although does not have a 
a professional manner with his job duties. . . . 
m 
bachelor's degree from a U.S. school he is very well educated and experienced and acts in as 
It is our intention to have [the beneficiary] manage a function of the company as the head our 
[sic] sales and marketing company. . . . This function of our company is a critical part of the 
business and central to our ability to expand in the U.S. market. 
The petitioner also notes that the beneficiary would likely be responsible for undertaking additional 
responsibilities within the U.S. entity due to the company president's recent diagnosis with a serious illness. 
The petitioner submits a revised organizational chart depicting the beneficiary's proposed position, which 
indicates that he will supervise Jason Begley, identified as "designerlmanager," who in turn is shown as 
supervising a bookkeeper and a graphics applicator. The petitioner submits copies of two checks in the 
amounts of $426 and $70 issued by the U.S. company to the individuals identified as the "graphics 
applicator," and "bookkeeper," respectively. 
SRC 05 003 52157 
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Counsel's assertions are not persuasive. Upon review of the petition and the evidence, the petitioner has not 
established that the beneficiary will be employed in the United States 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. tj 214.2(1)(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 definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. NS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the requisite 
authority, but that a majority of his or her duties are related to operational or policy management, not to the 
supervision of lower-level employees, performance of the duties of another type of position, or other 
involvement in the operational activities of the company. 
In this case, the petitioner's description of the beneficiary's duties suggests that he will be solely responsible 
for all of the U.S. entity's sales and marketing tasks, rather than primarily managing the sales and marketing 
function. The petitioner stated that the beneficiary will be "working with the customers regarding their 
explicit requirements, discussing their budgets, specification[s] and ensuring work is completed to customer 
satisfaction within the set time scale." These duties suggest that the beneficiary will be primarily engaged in 
the daily operations of the business, i.e., selling the petitioner's services, and these non-qualifying tasks have 
not been shown to be merely incidental or secondary to any management duties he may perform. 
Furthermore, although the petitioner claims that the beneficiary will manage sales and marketing activities, it 
does not claim to have anyone on its staff to actually perform the non-qualifjmg tasks associated with these 
functions, which further supports a conclusion that the beneficiary will perfom these duties himself. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int 'I., 19 I&N Dec. 593,604 (Comm. 1988). 
The remainder of the petitioner's job description is too vague to establish that the beneficiary would perform 
primarily managerial duties for the U.S. entity. The beneficiary's other duties include supervising a non- 
professional graphic designer, "introducing his knowledge and expertise" to the U.S. company's staff, and 
"implementing a business plan and financial budget to allow continuous growth." The petitioner did not 
describe the business plan to be implemented, elaborate as to the beneficiary's budgetary responsibilities, or 
explain how "introducing knowledge" qualifies as a managerial or executive duty. Simply going on record 
without supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998). Specifics are clearly an important 
indication of whether a beneficiary's duties involve specialized knowledge, otherwise meeting the definitions 
would simply be a matter of reiterating the regulations. See Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
SRC 05 003 52157 
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The petitioner has failed to establish any clear distinctions between the proposed qualifying and non- 
qualifLing duties of the beneficiary. Specifically, the petitioner submitted no information to establish the 
percentage of time the beneficiary will perform the claimed managerial duties. It has been noted that the 
beneficiary would be the only person performing sales and marketing duties for the petitioner's sign business. 
Collectively, the evidence brings into question how much of the beneficiary's time can actually be devoted to 
qualifying 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. 
On appeal, counsel correctly states that the beneficiary need not supervise personnel in order to qualify as a 
manager for purposes of this visa classification. 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 response to the director's request for evidence, the petitioner indicated that the petitioner would supervise 
one employee, a graphic designer, and stated that the U.S. company does not employ any professional staff. 
On appeal, the petitioner asserts for the first time that the graphic designer performs professional duties; that 
the graphic designer has served as the manager of the U.S. company's sign business; and, that the graphic 
designer supervises two subordinate employees who have been employed as independent contractors. 
The petitioner's assertions are not persuasive. The petitioner was put on notice of required evidence regarding 
its staffing and submitted a response indicating that the beneficiary would not supervise managerial, 
supervisory, or professional employees. On appeal, a petitioner cannot offer a new position to the beneficiary, 
or materially change a position's title, its level of authority within the organizational hierarchy, or the 
associated job responsibilities. The petitioner must establish that the position offered to the beneficiary when 
the petition was filed merits classification as a managerial or executive position. Matter of Michelin Tire 
Corp., 17 I&N Dec. 248,249 (Reg. Comm. 1978). A petitioner may not make material changes to a petition in 
an effort to make a deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 
176 (Assoc. Comm. 1998). The petitioner has not shown that the beneficiary's subordinate employee will be 
working in a supervisory, professional, or managerial capacity as required by section 101(a)(44)(A)(ii) of the 
Act. 
Counsel's primary argument on appeal is that the beneficiary will manage an essential function of the U.S. 
company. The term "function manager" applies generally when a beneficiary does not directly supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 1 10 1 (a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
is primarily managing an essential function, the petitioner must furnish a detailed job description that clearly 
describes the duties to be performed in that capacity, i.e., identifies the function with specificity, articulates 
the essential nature of the function, and establishes the proportion of the beneficiary's daily duties attributed to 
managing the essential function. If a petitioner fails to document what proportion of the beneficiary's duties 
would be managerial functions and what proportion would be non-managerial, the AAO cannot determine 
SRC 05 003 52157 
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whether 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). The petitioner's description of the beneficiary's daily 
duties must clearly demonstrate that the beneficiary primarily manages the function rather than performs the 
duties related to the function. 
Beyond the required description of the job duties, CIS reviews the totality of the record when examining the 
claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, 
the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. In the 
case of a function manager, where no subordinates are directly supervised, these other factors may include the 
beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, 
the scope of the beneficiary's authority and its impact on the petitioner's operations, the indirect supervision 
of employees within the scope of the function managed, and the value of the budgets, products, or services 
that the beneficiary manages. 
As discussed above, the beneficiary's job description includes non-qualifying duties associated with the 
petitioner's sales and marketing department, and the petitioner has not identified any other employees within 
the petitioner's organization, subordinate to the beneficiary or otherwise, who would relieve the beneficiary 
from performing routine duties inherent to this function. The fact that the beneficiary has been given a 
managerial job title and will be the only employee performing any duties associated with the petitioner's sales 
and marketing is insufficient to elevate his position to that of a "hction manager" as contemplated by the 
governing statute and regulations. The petitioner has not shown that the beneficiary will perform primarily 
managerial duties, nor has it been established that he would function at a senior level within an organizational 
hierarchy. Accordingly, the petitioner has not established that the beneficiary will be employed primarily as a 
manager of an essential function. 
Counsel correctly observes that a company's size alone, without talung into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 9 10 1 (a)(44)(C) of the Act, 8 U.S.C. 1 10 1 (a)(44)(C). However, it is appropriate for 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). 
At the time of filing, the petitioner was a three-year-old company operating two service-oriented businesses, a 
property management and rental business and a sign making business, with only four employees. Although 
three of the petitioner's current employees have managerial job titles, the job descriptions provided by the 
petitioner indicate that all of the current employees of the company, including two employees who would be 
senior to the beneficiary's position, are directly engaged in performing the day-to-day operations of the 
company. For example, the petitioner's highest level employee, the president, is described as being 
responsible for administrative duties, banking, invoicing, purchasing materials, and customer service duties. 
There is no evidence to suggest that the company, in light of its current stage of development, has a 
reasonable need for a sales and marketing manager who would perform primarily managerial duties. 
SRC 05 003 52157 
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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 managerial or 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 
sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this 
essential element of eligibility. 
For the foregoing reasons, the petitioner has not established that the beneficiary will be employed by the 
United States entity in a managerial or executive capacity. Accordingly, 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. 
ORDER: The appeal is dismissed.