dismissed L-1A Case: Trading

U.S. Department of Homeland Security 
20 Mass. Ave., N.W ., Rm. A3042 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Office: VERMONT SERVICE CENTER Date: JU)J 4 1 ]llUQ5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 1 lOl(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
vll obert P. Wiemann, irector 
fdministrative Appeals Office 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner, Trading, Inc., endeavors to classify the beneficiary as an 
101(a)(15)(L) of the Immigration and Nationality Act 
)(L). The petitioner claims that it is a wholly owned subsidiary 
L.L.C.), located in the United Arab Emirates, and is engaged in 
business. The initial petition was approved to allow the 
petitioner to open a new office. It seeks to extend the petition's validity and the beneficiary's 
stay for three yeah as the U.S. entity's marketing manager. The petitioner was incorporated in 
the State of New Jersey on August 3, 1999 and claims to have four employees. 
On April 10, 2001, the director determined that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial capacity. 
On appeal, the petitioner's counsel claims that the director's "decision ignores the extensive 
explanation of the beneficiary's executive duties," and asserts that the beneficiary alternatively 
should be classified as a function manager. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, within three years preceding the beneficiary's application for 
admission into the United States, a qualifying organization must have employed the beneficiary 
in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year. Furthermore, 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. 
In relevant part, the regulations at 8 C.F.R. 8 214.2(1)(3) state 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. 
Further, the regulations at 8 C.F.R. 5 214.2(1)(14)(ii) require that a visa petition under section 
101(a)(15)(L) of the Act 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 (I)(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 issue in this proceeding is whether the beneficiary will be employed in a primarily 
managerial or executive capacity in the United States. Section 101(a)(44)(A) of the Act, 8 U.S.C. 
5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(i.) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii.) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, or a 
department or subdivision of the organization; 
(iii.) 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), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(i.) directs the management of the organization or a major component or function 
of the organization; 
(ii.) establishes the goals and policies of the organization, component, or function; 
(iii.) exercises wide latitude in discretionary decision-making; and 
(iv.) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
Initially, on Form 1-129, the petitioner described the beneficiary's duties as "[e]stablish [and] 
build U.S. business to promote, market, import [and] distribute our products." In addition, in an 
October 13,2000 letter filed with Form 1-129, the beneficiary described his U.S. duties: 
I am responsible for directing our sales and marketing activities, including the 
development of patterns and samples for goods to be manufactured for our 
customers, and the creation of promotional and informational materials, 
analyzing the markets for our products and developing sales and marketing 
strategies for the garments and fabrics that we manufacture in Dubai. 
I confer with existing major customers to determine both what types of products 
meet their needs, and how to best serve through order fulfillment, shipping and 
delivery arrangements and schedules, as well as payment terms and credit 
facilities. To handle the sales and marketing work, I have already hired three 
employees. . . . These are in addition to the personnel in Dubai whom I continue 
to manage and to rely on for sales, production, and fulfillment support. 
In addition, the beneficiary claims that his subordinates in the United States include a senior 
account manager, an assistant to the senior account manager, and a secretary-receptionist. The 
beneficiary briefly described the U.S. employees' duties. The beneficiary also described the 
duties of the sales manager, a production manager, an assistant marketing manager, and 
merchandisers working at the foreign entity. 
On December 18, 2000, the director requested additional evidence. In particular, the director 
requested a list of the beneficiary's duties, percentages of time spent on each duty, a description 
of the beneficiary's subordinates, a description of the U.S. employees' job duties, and the 
minimal experience and educational requirements for their positions. 
In response, the petitioner submitted a January 23, 2001 letter reiterating the beneficiary's and 
U.S. employees' duties as stated in the October 13, 2000 letter. The petitioner submitted an 
organizational chart for the foreign entity and emphasized that the beneficiary maintains his role 
as marketing manager for the foreign entity. 
On April 10, 2001, the director determined that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial capacity. The director found that in an 
office the size and nature of the petitioner's business, the beneficiary would not be engaged in 
primarily managerial or executive job duties. Consequently, the director denied the petition. 
On appeal, the petitioner's counsel claims that the director's "decision ignores the extensive 
explanation of the beneficiary's executive duties." Counsel claims that the beneficiary will be: 
1) acting as an executive and manager directing an important component of the organization; and, 
2) acting as a functional manager for the company and does not directly perform the essential 
function of the company. Counsel also asserts that the number of employees supervised is not 
determinative of executive or managerial capacity and states that the director placed undue 
emphasis on the size of the U.S. company. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the description of the beneficiary's U.S. job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). On review, the 
petitioner has not established that the beneficiary will be employed in a primarily managerial or 
executive capacity. The petitioner claimed that the beneficiary's U.S. duties will include 
"creat[ing] of promotional and informational materials, analyzing the markets for our products 
and developing sales and marketing strategies for the garments and fabrics that we manufacture." 
This description indicates that the beneficiary will be performing the marketing tasks to further 
establish the business. Although the petitioner claimed that the beneficiary has hired three U.S. 
subordinate employees to "handle the sales and marketing work," none of the employees' duties 
include performing marketing tasks. In addition, the petitioner stated that the beneficiary has an 
assistant marketing manager working at the foreign entity who is also responsible for the 
"development and preparation of informational and promotional materials." However, the 
beneficiary's duties are practically identical to the assistant marketing manager's duties at the 
foreign entity. Therefore, it appears that a significant portion of the beneficiary's time will be 
spent on non-managerial marketing tasks. An employee who primarily performs the tasks 
necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 
604 (Cornm. 1988). 
Further, the record does not sufficiently demonstrate that the beneficiary will manage a 
subordinate staff of professional, managerial, or supervisory personnel. Although the beneficiary 
is not required to supervise personnel, if it is claimed that the beneficiary's duties involve 
supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See 3 101(a)(44)(A)(ii) of the Act. The petitioner 
claimed that the beneficiary has three employees and other personnel at the foreign entity that the 
beneficiary will "continue to manage." 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the 
field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tJhe term 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." The term 
"profession" contemplates knowledge or learning, not merely skill, of an advanced type in a 
given field gained by a prolonged course of specialized instruction and study of at least 
baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor. 
Matter of Sea, 19 I&N Dec. 817 (Cornm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 1&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of 
education required by the position, rather than the degree held by the subordinate employees. 
The possession of a bachelor's degree by a subordinate employee does not automatically lead to 
the conclusion that an employee is employed in a professional capacity as that term is defined 
above. In the instant matter, the petitioner has not, in fact, established that a bachelors degree is 
actually necessary, for example, for the senior account manager who will provide information and 
monitor the fulfillment of orders to major customers. At most, the beneficiary may be acting, on 
occasion, as a first-line supervisor of non-professional employees. A managerial or executive 
employee must have authority over day-to-day operations beyond the level normally vested in a 
first-line supervisor, unless the supervised employees are professionals. See Matter of Church 
Scientology Irttemational, 19 I&N Dec. 593, 604 (Comrn. 1988). 
The petitioner has also not established that the beneficiary will manage a subordinate staff of 
managerial or supervisory personnel. The claimed U.S. subordinate employees duties entail 
primarily performing non-managerial tasks. For example, the senior account manager provides 
information and his assistant provides clerical support. The job description provided for the senior 
account manager does not include any supervisory duties. Therefore, regardless of their job titles, 
it is evident that the subordinate employees will be performing daily non-managerial operational 
tasks of the business rather than performing managerial or supervisory duties. 
Counsel also claims that the beneficiary fits the definition of a function manager and is "acting as 
an executive and manager directing an important component of the organization." However, the 
AAO is not persuaded that the beneficiary's duties establish the beneficiary has managerial 
control and authority over a function of the company. 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 lOl(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 101(a)(44)(A)(ii). If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. In addition, the petitioner 
must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating 
to the function. In the instant matter, the petitioner claims the beneficiary's vital function is 
"marketing." 
Counsel claims that the beneficiary will not "directly perform the essential function of the 
company." The petitioner claims that in order to handle the sales and marketing work, the 
beneficiary will be assisted by a senior account manager, an assistant to the senior account 
manager, and a secretary-receptionist. However, the description of the employees' duties does not 
include handling marketing tasks. For example, the senior account manager monitors the 
fulfillment of orders, his assistant provides clerical support, and the secretary-receptionist orders 
supplies, schedules appointments, and answers telephones. Therefore, the assertions of counsel do 
not constitute evidence. Matter of Obaigbena. 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In addition, the description of the beneficiary's duties indicates that the beneficiary performs the 
actual function rather than manages the function. Whether the beneficiary is an "activity" or 
"function" manager turns in part on whether the petitioner has sustained its burden of proving that 
his duties are "primarily" managerial. Here, as requested by the director on December 18, 2000, 
the petitioner failed to document what proportion of the beneficiary's duties would be managerial 
functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as managerial and executive, but it fails to quantify the time the beneficiary spends on 
them. This failure of documentation is important because several of the beneficiary's daily tasks, 
such as "creating promotional and informational materials," "analyzing markets," and 
"development of patterns and samples" 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. U.S. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Counsel further refers to an unpublished decision involving an employee of the Irish Dairy Board. 
In the unpublished Irish Dairy Board decision, the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though 
he was the sole employee. Counsel has furnished no evidence to establish that the facts of the 
instant petition are analogous to those in the Irish Dairy Board matter. Again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, 
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. 
Counsel also states, "The number of employees supervised is not determinative of executive or 
managerial capacity." Pursuant to section 101 (a)(44)(C) of the Act, 8 U.S.C. 3 1 10 1(a)(44)(C), 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. In the present matter, 
however, the regulations provide strict evidentiary requirements for the extension of a "new 
office" petition and require CIS to examine the organizational structure and staffing levels of the 
petitioner. See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) 
allows the "new office" 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 does not have sufficient staffing after one year 
to relieve the beneficiary from primarily performing operational and administrative tasks, the 
petitioner is ineligible by regulation for an extension. At the time of filing, the petitioner was a 
one-year-old import company that claimed to have a gross annual income of $20,000,000 in the 
foreign country. The U.S. entity employed the beneficiary as its marketing manager. Based on the 
petitioner's representations, it does not appear that the reasonable needs of the petitioning 
company might plausibly be met by the services of the beneficiary as its marketing manager, a 
senior accounts manager, an assistant, and a secretary-receptionist. 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) of the Act. As discussed above, the 
petitioner has not established this essential element of eligibility. 
The AAO notes that although counsel cites several previous AAO decisions to support the 
petitioner's claim that the beneficiary manages or directs an essential function of the company, 
these decisions are unpublished and are not binding. While 8 C.F.R. 8 103.3(c) provides that CIS 
precedent decisions are binding on all CIS employees in the administration of the act, 
unpublished decisions are not similarly binding. See id. 
Finally, 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 a managerial or executive position. At the time of 
filing, the petitioner had not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. After careful consideration of the evidence, the 
AAO must conclude that the beneficiary will not be employed in a primarily managerial or 
executive capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the minimal documentation of the petitioner's business 
operations raises the issue of whether the U.S. entity has been doing business for the previous 
year. As noted above, the regulation at 8 C.F.R. 5 214.2(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 the new office petition, the 
regulations at 8 C.F.R. 5 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been 
doing business for the previous year. The term "doing business" is defined in the regulations as 
"the regular, systematic, and continuous provision of goods and/or services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad." 8 C.F.R. 3 214.2(1)(l)(ii). 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. 
On review, the petitioner has not established that the U.S. entity has been doing business for the 
previous year. In a January 23, 2001 letter, the petitioner claimed, "Since sales are invoiced by 
our parent company and payments are made to them we do not have our own sales revenues. Due 
largely to our American sales and marketing, however, our global sales are projected to increase 
to about $30,000,000 this year." In addition, the petitioner stated that the U.S. entity does not 
need warehouse space because the foreign entity ships the products directly to its customers. The 
petitioning entity appears to be acting as a conduit for the foreign entity by distributing the 
foreign entity's goods through the mere presence of an agent or office in the United States. 
Consequently, it cannot be concluded that the petitioner is a qualifying organization doing 
business in the United States, or that it has a qualifying relationship with the foreign entity. See 8 
C.F.R. 5 214.2(1)(l)(ii)(G). For this additional reason, the petition may not 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), afd. 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). 
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 appeal will be dismissed. 
ORDER: The appeal is dismissed.