dismissed L-1A Case: Swimming Pool Services

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P1JBLIC COPY 
U.S. Department of IIomeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: WAC 04 088 51655 Office: CALIFORNIA SERVICE CENTER Date: JUL 0 7 2006 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 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, C 
v 
dministrative Appeals Office 
WAC 04 088 51655 
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 corporate 
development manager as an L-1A 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 Arizona that claims to be engaged in the export and distribution of various products. 
It operates a swimming pool servicing and maintenance business. The petitioner claims that it is the 
subsidiary of C.O.F. Distributors, CC, located in South Africa. The beneficiary has been employed by the 
petitioner in the United States in L-1A status since April 2001, and the petitioner now seeks to extend the 
beneficiary's stay. 
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 the director 
misapplied the regulations to the facts of the instant petition, overlooked essential characteristics of the 
position offered, and ignored the reasonable needs of the organization in light of the company's overall 
purpose and stage of development. 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 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 
 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
WAC 04 088 51655 
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 first 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. § 1 101(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. 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. 
WAC 04 088 51655 
Page 4 
The nonimmigrant petition was filed on February 9, 2004. In a February 5, 2004 letter, the petitioner 
provided the following description of the beneficiary's position: 
The Corporate Development Manager is responsible for ALL aspects of the company's 
operations. [The beneficiary] will continue to be responsible for managing and executing the 
company's salestmarketing, administrative and financial functions. [The beneficiary] will 
also continue to be responsible for hiring, training and supervising all employees of the 
company. 
Specifically, [the beneficiary's] duties will continue to include: researching and analyzing 
local/regional/international market data and using that analysis to formulate/reformulate the 
company's strategic and marketing plan as necessary; seeking out and hiring qualified 
professionals to assist in the operation of the company; negotiating contracts with strategic 
importlexport partners and providers; recruiting, hiring, training and supervising all 
employees (including subordinate managers); hiring and coordinating services of 
subcontractors to fulfill client needs as necessary; and coordinating new product development 
with overseas manufacturerstdistributors based on localtregional demand. 
Additionally, as his title reflects, [the beneficiary] is responsible for locating, and thereafter, 
developing newtadditional business opportunities for the parent company in the United 
States. Accordingly, [the beneficiary's] duties are executivetmanagerial in nature in that he is 
BOTH supervising subordinate employees and managing several of the company's vital 
functions. 
The petitioner also submitted a January 12, 2004 letter signed by the beneficiary, in which he described his 
"Executive and Managerial position" as follows: 
1. Plans, directs, develops and coordinates all aspects of the companies [sic] operations and 
objectives. 
2. Assesses changing needs of business locally, nationally and internationally to develop 
further business. Negotiates business relationships with strategic exportlimport partners 
and service providers. Establishes and maintains relations with product manufacturers 
locally and in South Africa. 
3. Provides daily oversight to assigned staff 
Coordinates and hires related sub-contractors as necessary to fulfill client needs and 
market demands on a weekly basis. 
4. [The beneficiary] is also responsible for market analysis and new Product development. 
He coordinates the product needs with the Pool Industry in South Africa and the U.S.A., 
through the network of daily contact with the retail service business of our Company and 
the purchasing of inventory pursuant to finding opportunities for innovative product. 
The January 12, 2004 letter also included a list of six subordinate employees and short descriptions of their 
duties. The listed employees included a route manager, two customer service employees, a consultant, a 
WAC 04 088 51655 
Page 5 
secretarylpersonal assistant, and an employee responsible for bookkeeping. The petitioner also submitted a 
document labeled "1099 Detail" showing payments to its employees during the 2003 year. Of the six 
employees on the petitioner's employee list, only two, the route manager and one of the customer service 
employees, were receiving payments from the U.S. company as of the end of 2003. 
On May 11, 2004, the director issued a request for additional evidence, instructing the petitioner to submit, in 
part: (1) the total number of employees at the location where the beneficiary will be employed; (2) an 
organizational chart listing all employees under the beneficiary's supervision by name and job title, and 
including a brief description of their job duties, educational level, annual salarieslwages, immigration status, 
and source of remuneration; (3) a list of all U.S. employees from the date of establishment to the present 
including names, job titles and beginning and end date of employment; (4) a more detailed description of the 
beneficiary's duties in the U.S., including the percentage of time spent in each of the listed duties; (5) copies 
of the U.S. company's state quarterly wage report for the last three quarters; (6) copies of the U.S. company's 
IRS Form 941, Employer's Quarterly Federal Tax Return, for the last three quarters; and (7) copies of the 
U.S. company's payroll summary, IRS Forms W-2 and W-3 evidencing wages paid to employees. 
The petitioner submitted a response received on August 3, 2004. In response to the director's request for a 
more detailed description of the beneficiary's job duties, the petitioner provided the following: 
Authority held by the Beneficiary: 
100% Management decision in the day-to-day business 
Full financial control and decision making 
Asset purchasing and control 
All estimation and bidding 
All procurement of work, sub-contactors and future employees 
The necessity to train others 
All research and market analysis 
Report analysis of input by staff and customers 
New Product opportunities 
Duties 
Manage day-to-day business 
Personnel instructions and supervision 
Review of sales and contracts 
Review of estimated bidding 
Procurement of new business 
Meeting with prospective Buyers 
Marketing Analysis: National and International 
Marketing Projections 
Management of Sub-contractors 
Consult with Bankers 
Consult with Auditors 
Training of staff and Sub-contractors 
Estimate Time Spent 
2 
15 
4 
5 
32 
6 
8 
2 
4 
2 
2 
10 
WAC 04 088 51655 
Page 6 
Invoicing 2 
Payment receipts and payments 2 
Proposals for daily work contracts to clients 2 
Hiring and firing of staff 2 
The petitioner indicated that it employed four employees including a manager, two customer service 
representativesltechnicians, and an administrativehookkeeping employee. Although the administrative1 
bookkeeping employee was listed among the current employees, the petitioner listed her dates of employment 
as January 2003 through January 1,2004. The petitioner also provided a list of six former employees, four of 
whom were included on the petitioner's initial employees list. 
The petitioner stated that its manager is responsible for purchasing and coordination of contracts, management 
of routes, analysis of equipment, decision-malung regarding customers, supervision of new staff members and 
demonstration of new products. The petitioner noted that its customer representatives/technicians service 
customers, install new products, assess and report on all customer start-ups, represent the company when 
procuring new business, and report to both the beneficiary and the manager daily. 
The petitioner stated that all of its employees are paid on a contract basis and therefore it could not provide 
the requested state or federal quarterly reports or copies of IRS Forms W-2 or W-3. The petitioner instead 
submitted a comprehensive "1099 Detail" showing payments to all employees from June 2001 through May 
2004, and copies of its IRS Forms 1099-MISC issued to contract employees in 2003. The petitioner's 1099 
detail confirms that only the manager, and a customer 
representativeltechnician, were employed when the petition was filed in February 200eeft the 
company in April 2004, and the petitioner subsequently hired two additional customer 
representatives1technicians in May 2004. 
Finally, the petitioner submitted an organizational chart showing the beneficiary over an accountant and the 
bookkeeper and two de artrnents, "Servicing Pools of Arizona" (SPA) and "SCP Pool Corporation." The 
chart depicts as the manager of SPA overseeing two technicians and an open technician 
position. "SCP Pool Corporation" is identified as "Planned Expansion - Wholesale Distributor of Swimming 
Pool Products." The petitioner noted in a May 25, 2004 letter that the company is seeking new opportunities 
to importlexport products between the U.S. and South Afnca and has been in negotiation with SCP Pool 
Distributors, LLC, a wholesale distributor of swimming pool products, since 2001. 
The director denied the petition on September 10, 2004, concluding that the petitioner had not established that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director observed that the petitioner had not demonstrated that the beneficiary would primarily 
supervise a subordinate staff of professional, managerial or supervisory personnel who could relieve him from 
performing non-qualifying duties. The director further determined that the petitioner had not established that 
the beneficiary would primarily manage the organization or an essential function or component of the 
organization, or that he would operate at a senior level within an organizational hierarchy. The director 
concluded that the preponderance of the beneficiary's duties would be directly providing the services of the 
organization and supervising non-professional employees. 
WAC 04 088 51655 
Page 7 
On appeal, counsel for the petitioner asserts that the director's decision "improperly limits the L-1A visa to 
large, hierarchical organizations by means of a restrictive reading of the regulatory definitions of "Executive" 
and "Manager." Counsel further asserts that the director failed to consider and "ignores completely the 
essential characteristics of the Corporate Development Manager position that were clearly stated in the 
petitioner's initial submission." 
Counsel emphasizes that the petitioner clearly stated that the beneficiary would manage the petitioner's 
"sales/marketing, administrative and financial functions" and notes that inherent to the definitions of 
managerial and executive capacity is "the premise that a person in managerial and/or executive capacity may 
oversee not solely individuals or groups of individuals, but also the functions being performed by those 
individuals to ensure the operability of the entity." Counsel also attempts to further clarify the beneficiary's 
job duties, and provides a new breakdown of how he allocates his time among various responsibilities. As 
counsel's brief is part of the record, the new job description will not be repeated herein. 
Counsel emphasizes that the beneficiary's duties far exceed those of a fi-ont-line supervisor and are 
characteristic of a "functional managerlexecutive." Counsel asserts that the beneficiary acts as an executive by 
exercising authority over generalized policy and that his primary duty is to manage the functionality of the 
company and ensure its success, "as well as the incidental duty of directly supervising a lower-level manager 
who himself manages the other three employees and four contract pool maintenance workers." 
Counsel further asserts that the director placed undue emphasis on the size of the petitioning company, noting 
that the company has "clearly been established beyond the point of initial expansion with a general manager, 
two customer representatives, an administrative accountant, and four contract pool maintenance workers." 
Counsel states that non-executive essential duties are delegated through the lower level manager and notes 
that the beneficiary "has by now moved out of the hands-on-all tasks role of a start-up manager." Counsel 
cites Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570 (N.D. Ga. 1988) and unpublished AAO decisions in 
support of her assertion that CIS imposes no requirements as to the size of the petitioning organization or the 
number of employees supervised. 
Counsel questions the director's reference to Matter of Church Scientology International, 19 I&N Dec.593 
(Comm. 1988) arguing that the decision undermines "guidelines" established by the 1990 amendment to the 
Immigration and Nationality Act. Counsel asserts that, contrary to the director's conclusion, the beneficiary's 
duties do not include performance of the tasks necessary to provide the petitioner's pool maintenance 
services. Counsel states that the director incorrectly concluded that the beneficiary would not supervise 
lower-level managers, noting that the beneficiary will supervise a manager who performs "many of the day- 
to-day duties of a non-executive nature including supervision of a staff member." 
Finally, counsel references the U.S. Department of Labor's Occupational Outlook Handbook ("Handbook") 
entry for "General Managers and Top Executives," noting that the Handbook acknowledges that in small 
corporations, general managers will often perform a broader range of duties, including purchasing, hiring, 
training and day-to-day supervisory duties. Counsel asserts that many of the beneficiary's executive 
responsibilities require "rare incidental instances of the executive personally partaking in the duties that the 
WAC 04 088 51655 
Page 8 
Service has deemed 'day-to-day."' Counsel submits a summary of an unpublished AAO decision in support 
of the appeal. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the beneficiary 
will be employed 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. fj 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. In the instant case, counsel asserts that the beneficiary is 
primarily engaged in both managerial duties and executive duties. To sustain such an assertion, the petitioner 
must establish that the beneficiary meets each of the four criteria set forth in the statutory definition for 
executive duties under section 101(a)(44)(B) of the Act, and the statutory definition for managerial duties 
under section 101(a)(44)(A) of the Act. At a minimum, the petitioner must establish that the beneficiary is 
primarily employed in one or the other capacity. 
The petitioner and counsel have provided several different versions of the beneficiary's position description, 
none of which are persuasive in demonstrating that the beneficiary's day-to-day duties would be primarily 
managerial or executive in nature. The petitioner initially indicated that the beneficiary would be responsible 
for "managing and executing the company's saleslmarketing, administrative and financial functions," but the 
record does not establish that the petitioner employed any subordinates who performed routine sales, 
marketing, administrative or iinance-related tasks, and the petitioner indicated that the beneficiary himself 
would perform market research and analysis and negotiate contracts with providers. Accordingly, these broad 
responsibilities appear to include non-qualifying marketing, sales, administrative and financial duties directly 
performed by the beneficiary. Much of the initial job description was related to the company's proposed 
importlexport business and appeared to be prospective in nature. The remainder of the description referred to 
the beneficiary's supervision of employees and responsibility for "developing newladditional business 
opportunities," but did not describe the "opportunities," under development by the beneficiary, or the specific 
duties he performed to manage "several of the company's vital functions." Reciting the beneficiary's vague 
job responsibilities or broadly cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner's initial job description failed to answer a 
critical question in this case: What does the beneficiary primarily do on a daily basis? The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
In response to the director's request for evidence, the petitioner indicated that the beneficiary would dedicate 
the largest percentage of his time, 32 percent, to "procurement of new business," but failed to identify the 
specific managerial or executive-level tasks this responsibility would entail. Without additional explanation, 
the AAO cannot conclude that the beneficiary's responsibility for procuring new business would involve 
primarily qualifying duties, rather than sales and marketing tasks. Neither of the beneficiary's subordinates 
are responsible for performing any duties associated with generating new business, so it is reasonable to 
assume, and has not been shown to be otherwise, that the beneficiary himself is responsible for marketing and 
selling the petitioner's pool maintenance services. The petitioner also indicates that the beneficiary is 
WAC 04 088 51655 
Page 9 
responsible for reviewing sales, contracts and "estimated bidding," as well as meeting with prospective 
buyers. Again, the petitioner did not identify any lower-level employees who would prepare contracts and 
"bidding" documents, or perform the company's day-to-day sales work for the beneficiary to "review," nor 
did the petitioner explain how meeting with prospective buyers qualifies as an executive or managerial duty. 
These duties, which account for an additional 15 percent of the beneficiary's time, have not been shown to be 
managerial or executive in nature. The petitioner also describes the beneficiary as being responsible for 
additional non-qualifying duties including issuing invoices, issuing payments and payment receipts, 
performing market research, and preparing proposals for clients, duties which account for an additional 16 
percent of the beneficiary's time. 
Based on the petitioner's response to the director's request for evidence, the majority of the beneficiary's time 
is devoted to non-qualifying sales, marketing, administrative and financial tasks. 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 'l., 19 I&N Dec. 593,604 (Comm. 1988). 
While counsel claims on appeal that the petitioner employs sufficient lower-level employees to provide the 
petitioner's pool maintenance services, the petitioner's focus on this one particular task is misplaced. Job 
duties performed in connection with a business' sales, marketing, finances and general administration may be 
deemed non-qualifying duties if they involve the actual performance of the function. As previously discussed, 
the evidence provided suggests that the beneficiary is personally performing these non-qualifying tasks rather 
than managing or supervising the performance of these routine duties by other subordinate employees. 
On appeal, counsel provides a new iteration of the beneficiary's job duties that essentially paraphrases the 
statutory definitions of managerial and executive capacity. See sections 101(a)(44)(A) and (B) of the Act, 8 
U.S .C. 5 5 1 10 1 (a)(44)(A) and (B). 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. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 
(2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y .). The new description 
provided on appeal appears to have the beneficiary performing broader responsibilities related to the 
company's goals, objectives and overall profitability, and fewer non-qualifying administrative and operational 
tasks. 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). Counsel 
also asserts on appeal that the petitioner has "eight employees and contract service providers" when the 
evidence submitted prior to the director's decision clearly shows that only two subordinates were employed 
by the petitioner at the time of filing. The unsupported statements of counsel on appeal or in a motion are not 
evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 
(1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). . 
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 
WAC 04 088 51655 
Page 10 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 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 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. 
On appeal, counsel places great emphasis on the beneficiary's level of authority as the highest ranking 
employee and "owner" of the company. However, despite the changes made by the Immigration Act of 1990 
referenced by counsel, the statute continues to require that an individual "primarily" perform managerial or 
executive duties in order to qualify as a managerial or executive employee under the Act. The word 
"primarily" is defined as "at first," principally,' or "chiefly." Webster's I. New College Dictionary 877 
(2001). Where an individual is "principally7' or "chiefly" performing the tasks necessary to produce a product 
or to provide a service or other non-qualifying duties, that individual cannot also be "principally" or "chiefly" 
perform managerial or executive duties. Counsel's assertion that the beneficiary delegates the company's non- 
executive and non-managerial tasks through his management-level employee and does not perform non- 
qualifying tasks is not supported by the record. In the instant matter, the petitioner has failed to show that 
non-qualifying duties will not constitute the majority of the beneficiary's time. 
The petitioner indicates that the beneficiary devotes a total of 29 percent of his time to supervising, instructing 
and training his subordinate staff. 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 fj 101(a)(44)(A)(ii) of the Act. The petitioner 
claims that the beneficiary supervises one subordinate manager, but does not claim to employ professional 
personnel. Although counsel claims on appeal that the beneficiary delegates all non-qualifying duties through 
the manager, the petitioner previously stated that the customer representativeltechnician reported directly to 
the beneficiary, who is also responsible for his training. Accordingly, it is difficult to determine the actual 
level of supervisory authority of the claimed managerial employee. 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those of his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or manager position. An individual whose primary duties are those of a 
first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her 
supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. Instead, the record indicates that the beneficiary's 
two subordinates, regardless of their job titles, must necessarily perform the actual day-to-day tasks of 
providing pool maintenance services. The petitioner has not provided evidence of an organizational structure 
WAC 04 088 51655 
Page 11 
sufficient to elevate the beneficiary's supervisory responsibilities to those of a manager or executive. 
Pursuant to section 101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily 
managerial. 
Counsel claims on appeal that the beneficiary is a "functional manager1executive" and variously claims that 
he manages the saleslmarketing, administrative and financial function, the public relations function, and the 
"functionality" of the company. The record does not support counsel's claim that the beneficiary qualifies as a 
"function manager." Counsel further refers to several unpublished decisions in which the AAO determined 
that the beneficiary met the requirements of serving as a function manager for L-1 classification even though 
the petitioning organizations had few employees. Counsel has furnished no evidence to establish that the 
facts of the instant petition are analogous to those in the unpublished decisions. While 8 C.F.R. 5 103.3(c) 
provides that AAO precedent decisions are binding on all CIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
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. 5 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 managing an 
essential function, the petitioner must provide a detailed job description that 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. 8 C.F.R. fj 214.2(1)(3)(ii). In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than pe$orms the duties related to the function. While performing non-qualifying tasks 
necessary to produce a product or service will not automatically disqualify the beneficiary as long as those 
tasks are not the majority of the beneficiary's duties, the petitioner still has the burden of establishing that the 
beneficiary is "primarily" performing managerial or executive duties. Section 101(a)(44) of the Act. Whether 
the beneficiary is an "activity" or "function" manager depends on upon whether the petitioner has sustained its 
burden of proving that his duties are "primarily" managerial. As discussed above, the petitioner has not met 
this burden. 
Counsel correctly observes that a company's size alone may not be the determining factor in denying a visa to 
a multinational manager or executive. See section 101 (a)(44)(C), 8 U.S.C. fj 1101(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). 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, CIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. 
The petitioner is a three-year-old company operating a swimming pool maintenance company. Thus, it is 
evident that the reasonable needs of the petitioner require its employees to perform numerous non-managerial 
and non-executive tasks such as ordering and receiving delivery of supplies, answering questions about 
WAC 04 088 51655 
Page 12 
services from customers, marketing and selling the company's services, performing day-to-day clerical and 
administrative duties, managing a checking account and paying bills, and providing the actual pool 
maintenance services. The petitioner also claims to be in the process of commencing business as an importer 
and distributor of swimming pool products. As of the date the petition was filed, the petitioner employed the 
beneficiary as its corporate development manager, one "manager" and one customer 
representativeltechnician. While the manager and technician may have been capable of providing the pool 
maintenance services without the beneficiary's involvement, the reasonable needs of the petitioner suggest 
that the beneficiary must spend a significant amount of time performing most or all of the company's 
administrative, clerical, sales, marketing and financial tasks. Contrary to counsel's assertion on appeal, the 
record does not support a finding that the beneficiary performs non-qualifying duties on only "rare incidental 
instances." Again, the petitioner has failed to establish that these non-managerial and non-executive tasks do 
not constitute the majority of the beneficiary's time. 
 See 8 C.F.R. 8 214.2(1)(3)(ii). The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or medium 
size businesses. However, the AAO has also long required the petitioner to establish that the beneficiary's 
position consists of primarily managerial and executive duties and that the petitioner has sufficient personnel 
to relieve the beneficiary from performing operational and administrative tasks. The AAO does not dispute 
that small companies require leaders or individuals who plan, formulate, direct, manage, oversee and 
coordinate activities; however the petitioner must establish with specificity that the beneficiary's duties 
comprise primarily managerial or executive responsibilities and not routine operational or administrative 
tasks. The reasonable needs of the petitioner may justify a beneficiary who allocates 51 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-qualifjmg duties. In the present matter, the petitioner has not 
established the basic eligibility requirement in this matter, that the beneficiary is primarily performing 
managerial or executive duties. 
Counsel cites Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the 
proposition that the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will act 
in a primarily managerial or executive capacity. Counsel has hmished no evidence to establish that the facts 
of the instant petition are analogous to those in Mars Jewelers, Inc. v. INS. Additionally, in contrast to the 
broad precedential authority of the case law of a United States circuit court, the AAO is not bound to follow 
the published decision of a United States district court in matters arising within the same district. See Matter 
of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be 
given due consideration when it is properly before the AAO, the analysis does not have to be followed as a 
matter of law. Id. at 719. 
 Furthermore, a review of the director's decision reveals that the petition was not 
denied solely on the basis of the size of the petitioning company, but rather on the basis that the beneficiary 
would not be performing primarily managerial or executive duties. 
Finally, counsel's reference to position descriptions found in the U.S. Department of Labor's Occupational 
Outlook Handbook is not persuasive. Generic job descriptions found in Department of Labor publications 
have no bearing on an assessment of this beneficiary's duties within the statutory and regulatory requirements 
WAC 04 088 51655 
Page 13 
for this visa classification, and the petitioner cannot satisfy its burden of proof by paraphrasing or making 
comparisons to such descriptions. The petitioner is required to provide a detailed description of the actual 
duties to be performed by the beneficiary and establish that they qualify him to be classified as a 
nonimmigrant intracompany transferee in a managerial or executive capacity, as those terms are defined at 
sections 101(a)(44)(A) and (B) of the Act. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed 
primarily in a qualifying managerial or executive capacity. For ths reason, the appeal will be dismissed. 
Beyond the decision of the director, the record contains insufficient evidence to establish that the petitioner 
maintains a qualifying relationship with its claimed South Afncan parent company. The petitioner claims that 
it is a wholly-owned subsidiary of the foreign entity, but indicated on its 2002 and 2003 IRS Forms 1120, 
U.S. Corporation Income Tax Return, that it is not owned by a foreign person or by another entity. The AAO 
notes that counsel for the petitioner also referred to the beneficiary as the "owner" of the U.S. company, a 
statement which contradicts the petitioner's claim of ownership by a foreign company. This petition is the 
second request for an extension of the beneficiary's L-1A status, therefore the petitioner was not required by 
regulation to submit evidence related to its claimed qualifying relationship with the foreign entity. See 8 
C.F.R. 8 214.2(1)(14)(i). However, 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). In light of these unresolved discrepancies, the AAO cannot 
conclude that the U.S. and foreign entities maintain a qualifying relationship. For this additional reason, the 
petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
Finally, the AAO acknowledges that CIS previously approved two L-1A nonirnmigrant petitions filed on the 
beneficiary's behalf. However, each nonimmigrant petition has a separate record of proceeding with a 
separate burden of proof; each individual petition must stand on its own merits. See 8 C.F.R. 5 103.8(d). The 
prior approvals do not preclude CIS from denying an extension of the original visa based on a reassessment of 
the petitioner's and beneficiary's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 
1240482 (5th Cir. 2004). Moreover, if the previous nonimmigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the prior approval would constitute material 
and gross error on the part of the director. Due to the lack of evidence of eligibility in the present record, the 
AAO finds that the director was justified in departing from the previous approvals by denying the present 
extension petition. 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology 
WAC 04 088 51655 
Page 14 
International, 19 I&N Dec. 593, 597 (Cornrn. 1988). It would be absurd to suggest that CIS or any agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afld, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 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. 9 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.