dismissed L-1A Case: Steel Import/Export

U.S. Department of Hameland Securitj 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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File: WAC 04 03 1 52679 Office: CALIFORNIA SERVICE CENTER Date: I" c 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 10 1 (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, Director 
Administrative Appeals Office 
WAC 04 03 1 52679 
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 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. (j 1101(a)(15)(L). The petitioner is a corporation organized in the State of California 
that is engaged in the import and export of steel. The petitioner claims that% is the subsidiary of- 
and in Masan City, South Korea. The beneficiary was initially granted a one-year 
period of stay to open a new office in the United States, which was subsequently extended for an additional 
year. The petitioner now seeks to extend the beneficiary's stay for an additional two years. 
The director denied the petition concluding that (1) the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; and (2) the petitioner had not 
established that it had been doing business as required by the regulations. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner and the 
petitioner itself contend that the denial was erroneous because the beneficiary in fact manages an important 
function of the business and also operates a very positive business despite the director's findings. In support 
of these contentions, the petitioner submits a brief. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(l5)(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. 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 
WAC 04 03 1 52679 
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 regulation at 8 C.F.R. 8 214.2(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 (l)(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 managerial or executive 
capacity; and 
(e) Evidence of the financial status of the United States operation. 
The first 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. 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 deparhnent 
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 
WAC 04 03 1 52679 
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(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. 5 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 submitted a letter dated November 3, 2003 detailing the nature of the 
beneficiary's duties. Specifically, the petitioner provides the following description of the beneficiary's duties: 
Direct the management of the organization: Make decisions regarding company budget, 
short and long term objectives, hiring employees as well as entering into 
contracts/agreements and making proposals relating to the company operations; 
implementing the marketing plan to ensure that the company will be correctly positioned in 
the North American market, a strategy which is in line with [the foreign entity's] philosophy; 
implement an effective marketing program talung into account the current market situation; 
analyze activities, costs, operations and forecast data to determine whether the company is 
achieving its goals and objectives and make changes where needed. 
Establish the goals and policies of the organization: Set operational activities; develop a 
marketing plan to penetrate the North American market. 
Exercise wide latitude in discretionary decision making: [The beneficiary] will have 
discretionary authority to market and develop an operational strategy for [the U.S. petitioner], 
including promotions, incentives, proposed agreements and contracts. 
Receives only general supervision or direction from higher level executives, board of 
directors or stockholders: [The beneficiary] will continue to work closely with the parent 
company, communicating with executives, sharing ideas and obtaining approval for 
implementing marketing plans, formulating policy and directing the company's operations. 
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Cultivate sales by finding new business partners. Also set up meetings with managing 
directors to introduce the company to them and to try to secure business. 
Communicate and work with existing clients to ensure that they are satisfied with the level of 
service and that their needs are met. 
Act as a catalyst in driving implementation of service standards, initiative, improvements, and 
change management activity. 
Based on the evidence submitted with the initial petition, the director concluded that the record contained 
deficiencies. Thus, on November 26, 2003 the director requested additional evidence. Specifically, the 
director requested evidence establishing the need for the extension of the beneficiary's stay, as well as 
additional details on the beneficiary's duties, including information on the duties of his co-workers and 
evidence of wages paid to all employees. 
In a response dated December 4, 2003, the petitioner, through counsel, submitted the requested 
documentation, including an updated list of the beneficiary's duties as well as a list of the beneficiary's 
subordinate employees, their positions, and their duties. With regard to the beneficiary's duties, the petitioner 
submitted additional supplemental duties to the previously submitted list. Such new duties included: 
Formulating policy for the Los Angeles company and directing the company's 
operations 
Liaising with vendors to control just-in-time shipments; liaising with U.S. vendors to 
check market trends and report information to [the foreign entity] 
Collecting market information and developing importlexport routes between South 
Korea and the U.S.A. 
In addition, the petitioner ind~cated that it employed two additional employees:- a 
manager who "directs the organization," and an assistant who deals with accounts and 
trading with Guam and Saipan. Employee payroll records further indicated that 
d not begin her employment with the petitioner until June 2003. - 
On December 18, 2003, the director denied the petition. The director, who reviewed the record to determine 
eligibility under both managerial and executive capacity, concluded that the beneficiary was not supervising a 
staff of professional, supervisory, or managerial employees, and did not employ a sufficient number of 
subordinate employees to relieve him from performing the routine tasks necessary to maintain business 
operations. 
On appeal, counsel for the petitioner and the petitioner itself assert that the beneficiary's duties in fact 
conform to the regulatory definitions and aver for the first time that the beneficiary manages an essential 
function of the organization, namely, deciding the fate of the U.S. entity and the direction of the parent 
company abroad. Although claiming that the beneficiary is a function manager, the petitioner and counsel in 
effect simultaneously reassert that the beneficiary's duties are both managerial and executive in nature by 
WAC 04 03 1 52679 
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restating the previously claimed duties. Finally, counsel and the petitioner cite legal precedents in support of 
these contentions. 
Upon review, the petitioner's assertions on appeal are not persuasive. When examining the executive or 
managerial capacity of the beneficiary, the MO will look first to the petitioner's description of the job duties. 
See 8 C.F.R. $ 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 petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. 
As previously discussed, the initial description of the beneficiary's duties was insufficient. Consequently, the 
director requested additional details in the request for evidence. The petitioner's response further clarified the 
beneficiary's proposed duties, and explained that the beneficiary would also engage in formulating policy, 
liaising with vendors, and collecting market information. On appeal, the petitioner newly asserts that in 
addition to the previously stated duties, the beneficiary manages an essential function of the organization. 
The AAO, however, disagrees with the petitioner's position in this matter. 
There are several problems with the petitioner's assertions. First, the description of duties provided prior to 
adjudication summarizes the 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. 1103, 
1108 (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.). Despite the repetition of the definition, the MO notes that the petitioner does 
supplement the definitions with a brief description of the beneficiary's duties. The description, however, 
remains insufficient since most of the duties described are non-executive functions. For example, developing 
a marketing plan, cultivating relationships with potential clients, liaising with vendors and collecting market 
information are not duties that fall under the regulatory definitions. 
The beneficiary's stated duties, therefore, include numerous non-executive andlor non-managerial tasks that 
on their face do not qualify. 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. 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 andlor executive functions and what proportion would be non- 
managerial or non-executive. As indicated above, the petitioner lists the beneficiary's duties as including both 
managerial and 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 do not fall directly under 
traditional managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the 
beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
The AAO further notes that the petitioner's claim that the beneficiary is managing an essential function is first 
made on appeal. The petitioner and counsel further acknowledge that the record prior to adjudication lacked 
sufficient descriptions and evidence upon which a favorable finding could be based. On appeal, they 
WAC 04 03 1 52679 
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introduce new evidence and newly structured assertions in support of the beneficiary's qualifications. These 
assertions, however, and not persuasive. 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 Citizenship and Immigration Services (CIS) 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Cornrn. 1998). 
The AAO will next examine the director's conclusion that the beneficiary was primarily engaged in day- 
to-day tasks as opposed to managerial or executive duties based on the small staff employed by the U.S. 
petitioner. Counsel correctly asserts that a company's size alone, without tahng into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive, 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 6 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C); see, 
e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. See id. 
As required by section 10l(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, 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, such as developing and 
implementing marketing policies and liaising with vendors, particularly since the U.S. petitioner has been in 
operation for more than two years. The petitioner fails to explain the justification for these non-managerial 
and non-executive duties, yet continually asserts that the beneficiary performs only managerial or executive 
tasks. 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 Califarnia, 14 I&N Dec. 190 (Reg. Comm. 
1972). 
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 
lOl(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). The reasonable needs of the petitioner may justify 
a beneficiary who allocates 5 1 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. As previously stated, a large percentage of the beneficiary's duties appear to be allotted to marketing 
and customer relations, which are duties that do not fall under the regulatory definitions of managerial and/or 
executive capacity. These duties, which appear to constitute the majority of the beneficiary's time, are akin to 
a marketing agent or salesperson as opposed to a true manager or executive. An employee who primarily 
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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). Based on the evidence contained in the record, the AAO finds that the beneficiary must in fact be 
engaging primarily in non-qualifying duties in order to maintain the petitioner's business operations. 
The AAO notes that counsel relies heavily on Mars Jewelers, Inc. v. Immigration and Naturalizations 
Services, 702 F. Supp. 1570 (N.D. Ga. 1988) and Johnson-Laird, Inc. v. INS, 537 F. Supp. 52 (D.C. Ore. 
1981) in support of the premise that the director erred in examining the size of the petitioning entity in 
reaching the decision. However, counsel fails to recognize or discuss the subsequent holding in Systronics, 
which, as discussed above, pennits CIS to examine an entity's size in relation to the reasonable needs of the 
entity. Consequently, counsel's reliance on Mars Jewelers and Johnson-Laird is misplaced and will not be 
considered for purposes of this analysis. 
The petitioner has failed to establish that the beneficiary has been and will continue to be employed in a 
managerial or executive capacity, as required by 8 C.F.R. §214.2(1)(3)(iv). The regulation at 8 C.F.R. 3 
214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of the 
petition to support an executive or managerial position. There is no provision in CIS regulations that allows 
for an extension of this one-year period. If the business is not sufficiently operational after one year, the 
petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner, now in its third year 
of business, has not reached the point that it can employ the beneficiary in a predominantly managerial or 
executive position. For this reason, the petition may not be approved. 
The second issue in this matter is whether the petitioner has been doing business as required by the 
regulations for the previous year. The regulation at 8 C.F.R. §214.2(1)(l)(ii)(H) defines the term "doing 
business" as "the regular, systematic, and continuous provision of goods andfor services by a qualifylng 
organization and does not include the mere presence of an agent or office of the qualifylng organization in the 
United States and abroad." 
In this matter, the petitioner claims that it is engaged in the import and export of steel. The director denied the 
petition, finding that the petitioner had failed to submit sufficient evidence to establish that it had been doing 
business for the previous year. Specifically, the director noted that the petitioner's Form 1120, U.S. Corporate 
Tax Return for the year 2002, showed a taxable income of zero, and further noted that the petitioner's 
commercial lease agreement indicated that the premises leased was for "general office use" only, and did not 
indicate that stocking and shipping of iron and steel products was an intended use for the .facility. 
On appeal, counsel for the petitioner and the petitioner itself discuss the nature of the petitioner's business. 
They note that although established in 2001, the U.S. petitioner is still a relatively new business in its 
development stage. Despite this relatively new status, counsel and the petitioner state that the petitioner 
exported $10 million in scrap steel in 2002 and assert that such an amount is impressive based on industry 
standards. Counsel and the petitioner, however, provide no supporting documentation to supplement these 
claims. 
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On review of the evidence submitted, the AAO concludes that the petitioner failed to demonstrate that it had 
been doing business during the past year for several reasons. First, in the course of examining whether a 
petitioning company has been doing business as an import and export firm, it is reasonable to submit copies 
of documents that are required in the daily operation of the enterprise due to routine regulatory oversight. 
Upon the importation of goods into the United States, the Customs Form 7501, Entry Summary, serves to 
classify the goods under the Harmonized Tariff Schedules of the United States and to ascertain customs duties 
and taxes. The Customs Form 301, Customs Bond, serves to secure the payment of import duties and taxes 
upon entry of the goods into the United States. According to 19 C.F.R. 9 144.12, the Customs Form 7501 
shall show the value, classification, and rate of duty for the imported goods as approved by the port director at 
the time the entry summary is filed. The regulation at 19 C.F.R. 144.13 states that the Customs Form 301 
will be filed in the amount required by the port director to support the entry documentation. Although 
customs brokers or agents are frequently utilized in the import process, the ultimate consignee should have 
access to these forms since they are liable for all import duties and taxes. Any company that is doing business 
through the regular, systematic, and continuous provision of goods through importation may reasonably be 
expected to submit copies of these forms to show that they are doing business as an import firm. 
No such documentation exists in the record. In fact, there is no documentary evidence to establish that the 
petitioner has been engaging in the import and export of steel as it claims in the petition and again on appeal. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Treasure CraB of California, 14 I&N Dec. 190 (Reg. Comm. 
1972). In addition, without documentary evidence to support his claims, 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 (BL4 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BL4 1980). 
Consequently, there is no documentation contained in the record that explains or supports the petitioner's 
operations for the first year of the beneficiary's stay. The regulation at 8 C.F.R. 9 214.2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of the petition to establish the new 
office. Furthermore, at the time the petitioner seeks an extension of a new office petition, the regulations at 8 
C.F.R. 5 214.2(1)(14)(ii)(B) require the petitioner to demonstrate that it has been doing business for the 
previous year. In the present matter, the evidence submitted is insufficient to establish that the petitioner has 
been doing business as defined by the regulations. 
The definition of doing business clearly requires the continuous provision of goods and services, yet the 
petitioner has failed to submit evidence establishing its business activities for the remainder of the first year. 
The beneficiary was granted a one-year stay, beginning in November 2001, in which to open a new office. 
There is no evidence of any business activity during this period. The petitioner, therefore, has not established 
that it was regularly, systematically, and continuously providing goods and/or services during the entire first 
year of the beneficiary's stay. For this reason, the visa petition may not be approved. 
The prior approval of the visa extension for this beneficiary in 2002 does not preclude CIS fkom denying an 
extension of the original visa based on reassessment of petitioner's qualifications. Texas A& Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). In this matter, the petitioner has failed to 
WAC 04 03 1 52679 
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establish that the beneficiary is employed in a primarily managerial capacity, and likewise has failed to show 
that it has regularly and systematically been doing business. 
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. 8 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.