dismissed L-1A Case: Travel

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC 04 060 53 132 Office: CALIFORNIA SERVICE CENTER Date: ae~ 2 7 2005 
Petition: Petition for a Nonirnrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(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. 
Administrative Appeals Office 
WAC 04 060 53 132 
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 branch 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. 1101(a)(15)(L). The petitioner claims to be a branch office of 
located in Nairobi, Kenya, and is qualified to do business in the State of California. It op 
a travel agency specializing in the coordination of luxury Ahcan sahris. The beneficiary was initially 
granted a one-year period of stay to open a new office in the United states and the petitioner now seeks to 
extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that: (1) the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity, or (2) the petitioner did 
not establish that it had secured sufficient physical premises to house its office. 
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 that the decision 
was arbitrary, capricious and contradicted by facts in the record. Counsel contends that the director failed to 
give deference to or justify his departure from the earlier approval of an L-1A visa petition submitted by the 
petitioner on behalf of this beneficiary. Finally, counsel contends that the director relied on assumptions 
rather than on the facts and regulations in determining that the beneficiary is not qualified for the benefit 
sought. Counsel submits a brief and additional documentation 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. 
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(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the alien's 
prior education, training, and employment qualifies 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. 9 214.2(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 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. 5 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a 
department or subdivision of the organization; 
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(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 ifno other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
In an unsigned statement submitted with the initial petition on December 29, 2003, the petitioner provided 
the following description of the beneficiary's duties: 
As the Branch Manager for [the petitioner], [the beneficiary] is responsible for the 
administration and supervision of the branch office and staff. He has the authority to hire and 
fire staff as well as the power to grant promotions and leave authorizations for staff at his 
discretion. He controls all marketing and promotion decisions. Under his managerial capacity 
he also oversees sales growth and directs the employees under him to achieve company goals 
and sales targets. He directly supervises the staff in the branch office. He is also responsible 
for establishing goals and policies of the company. Other managerial duties include 
coordination with the local bank and managing the client trust fund. He also monitors the 
collection of payments from clients, oversees the renewal of necessary lease, licenses and 
insurances, consults the company attorney and follows accordingly over controversial issues, 
coordinates with auditors on accounts and returns to the IRS, and reviews financial and 
business records. He keeps the board of directors in Kenya informed of the progress of the 
American branch and receives general supervisory advice from them. 
The petitioner went on to provide a description of the duties the beneficiary performs in eleven distinct areas 
and indicated the approximate percentage of time the beneficiary devotes to each of the listed duties. As the 
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list of job duties is part of the record of proceeding, it will not be repeated in its entirety here. The petitioner 
divided the beneficiary's responsibilities into the follbwing areas: 
Administration and supervision of office and staff - 20% 
Establishing goals and policies of the company - 20% 
Coordination with the local bank and managing the client trust fund - 10% 
Monitoring the collection of payments from clients - 5% 
Renewal of lease, licenses and insurances - 1% 
Coordinate with auditors on accounts and returns to the IRS - 5% 
Review financial and business records - 5% 
Oversee sales - 20% 
9. Supervise marketing and promotions - 5% 
10. Keep the board informed on progress - 2% 
11. Networking with suppliers and USA sub-agents - 7% 
The petitioner indicated that it employed one other employee as a "safaT.i specialist" who is responsible for 
handling reservations for each safari booking. The petitioner submitted evidence that the safari specialist is 
employed in L-1B classification with an expiration date of December 30, 2003. With respect to her duties, 
the petitioner stated: 
Some of her duties involve designing, marketing and. selling safari itineraries and 
coordinating with our Ahcan suppliers while the client is on-safari. 
Under supervision of the branch manager, she is directed to perform tasks in the research and 
development of new products and services both offline and online, based on the interests and 
expectations of the American traveler through her specialized knowledge and safari 
experience in Africa. 
The director issued a notice of intent to deny the petition on March 25, 2004. In part, the director instructed 
the petitioner to submit a statement addressing the beneficiary's employment in a managerial capacity 
including: the duties performed, whether the beneficiary has the power to hire and fire employees; the 
number and positions of employees working under the supervision of the beneficiary; the job title of the 
employee supervising the beneficiary; and a complete organizational chart specifically showing the 
beneficiary and all employees by name and job title. The director also requested copies of the petitioner's 
California Employment Development Department Forms DE-6, Emp1oyer:s Quarterly Report, for the last 
four quarters. 
In its April 15, 2004 response, the petitioner submitted a copy of the detailed job description submitted with 
the initial petition and confirmed that the beneficiary has one subordinate employee, the safari specialist. 
The petitioner noted that the beneficiary is responsible for administration and supervision of the branch 
office and staff and does not report to another employee within the U.S. company. The petitioner also 
submitted a letter from its accountant, who explained that the petitioner's two employees were not on the 
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payroll in 2003 due to delays in obtaining U.S. social security numbers, and therefore the requested Forms 
DE-6 were not available. 
The director denied the petition on July 4, 2004 concluding #hat the petitioner had not established that the 
beneficiary would be employed in a managerial or executive capacity. The director noted that the petitioning 
company employs only the beneficiary and a safari specialist, and observed: "[TJhe petitioning entity must 
have at least a financial department, personnel or administrative department." The director determined that 
the petitioner must therefore have a need for at least three "teams of staff' to manage the three departments, 
but clearly lacks such staff. Accordingly, the director concluded that the beneficiary has been performing the 
day-to-day duties involving executing contractual agreements, issuance of invoices, monitoring the handling 
of each booking, and ensuring that payments are made to suppliers. The director acknowledged that some of 
the beneficiary's duties involved "decision-making processes" but determined that since a significant part of 
the beneficiary's duties consist of the day-to-day functions, the duties may not be considered primarily 
executive or managerial in nature. 
On appeal, counsel for the petitioner refers to the previous approval of an L-IA petition filed on behalf of 
the beneficiary and asserts the director has "failed to follow Headquarters policy against readjudicating 
issues already decided in favor of the alien without specific explanation for the departure from the previous 
adjudication." Counsel specifically contends that the director's decision is contrary to the guidance provided 
in a 2004 Citizenship and Immigration Services (CIS) policy memorandum governing adjudication of 
requests for extensions of nonimmigrant petitions. See Memorandum of William R. Yates, Associate 
Director for Operations, USCIS, to Service Center Directors, et al, The Significance of a Prior CIS Approval 
of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for 
Extension of Petition Validity, HQOPRD 7211 11.3 (April 23, 2004)("Yates Memo"). Counsel asserts that the 
director erred by failing to identify a material error, substantial change in circumstances, or new material 
information as grounds for denial of the petition extension request. 
Counsel also asserts that the director based the denial on assumptions and not on the facts of the case and the 
regulations. In support of the appeal, the petitioner submits a statement in which it responds to each of the 
points discussed in the director's decision. The petitioner refers to the director's comments that the U.S. 
company has a need for a financial department, personnel or administrative department, and a travel 
department, and asserts: "We do not have a need for these departments within our company since we 
contract their services as and when required." The petitioner explains that it periodically utilizes the services 
of the foreign entity's accounting department, a U.S.-based certified public accountant, an attorney, and a 
business management consulting company that "cany out [the beneficiary's] instructions with regard to 
these issues." The petitioner also objects to the director's conclusion that the beneficiary performs the day- 
to-day activities of executing contractual agreements, issuing invoices, and ensuring payments are made. 
The petitioner contends that it did not state that the beneficiary perfoms these tasks himself, but rather, he 
oversees or directs the performance of the tasks in a decision-making capacity. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the 
beneficiary's duties for the petitioner will be primarily managerial or executive. When examining the 
executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of 
WAC 04 060 53 132 
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the job duties. See 8 C.F.R. 9 214.2(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. Further, the definitions of executive and managerial capacity have 
two parts. First, the petitioner must show that the beneficiary performs the high-level responsibilities that are 
specified in the definitions. Second, the petitioner must show that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority of his or her time on day-to-day functions. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
While the petitioner has provided a lengthy job description for the beneficiary, it does not sufficiently 
demonstrate that the beneficiary's tasks are the high-level responsibilities that are specified in the definitions 
of managerial or executive capacity. For example, the beneficiary's primary responsibilities, which account 
for a total of 60 percent of his time by the petitioner's estimates, are described as "administration and 
supervision of office and staff," "establishing goals and policies of the company," and "overseeing sales." 
These broadly described responsibilities suggest that the beneficiary performs some managerial or executive 
duties. However, the more detailed breakdown of his daily tasks shows that the beneficiary works very 
closely with his sole subordinate in all sales transactions, is personally involved in the company's market 
research and advertising activities, and performs routine financial and administrative tasks on a day-to-day 
basis. 
For example, the petitioner indicates that the beneficiary's duties include "overseeing fulfillment of new 
enquiries for safaris," "reviewing existing client bookings," "developing new sales ideas," "interacting with 
staff on the implementation of new destinations and travel services," "offering advice to staff on client 
issues," "networking with suppliers in Africa to discuss new products and promotions," "communicat[ing] 
with the Safari Specialist on current bookings and monitor[ing] the handling of each booking," "promot[ing] 
sales growth," and "develop[ing] ideas for advertising and promotions based on current trends." The 
petitioner has also described its "safari specialist" as being responsible for research and development of new 
products and services and coordinating with suppliers, which suggests some degree of overlap between the 
duties of the beneficiary and his subordinate. Based on the petitioner's representations, the beneficiary 
spends a substantial portion of his time directly involved in day-to-day sales, marketing and customer 
service activities, or, at times, as a first-line supervisor of such activities. Further, the petitioner indicates 
that the beneficiary is responsible for paying monthly bills, "overseeing" collection of payments, monitoring 
exchange rates, "supervising" the issuance of invoices, confirming that deposits are paid by clients, verifying 
accuracy of bank statements, ensuring contracts are signed and returned, "ensuring completion and accuracy 
in business contracts," and overseeing client records. Again, these duties do not fall directly under traditional 
managerial duties as defined in the statute and suggest that the beneficiary performs, rather than manages, 
the day-to-day operations of the petitioner's business. 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 (Comrn. 1988). 
As discussed above, the beneficiary devotes a substantial portion of his time to directly overseeing the work 
performed by his subordinate, the "safari specialist." 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 International, 19 I&N Dec. 593, 
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604 (Comm. 1988). 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 lOl(a)(32) of the Act, 8 U.S.C. 9 1 101(a)(32), states that "[tlhe 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 (Comm. 1988); Matter of Ling, 13 
I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&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 subordinate employee. 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 case, the petitioner has not established that a bachelor's degree is necessary to 
perform the duties of the "safari specialist," nor is there any evidence that the beneficiary's subordinate 
possesses such qualifications. 
Although the beneficiary is the senior employee in the petitioner's two-person office and makes decisions 
regarding its day-to-day operations, the record indicates that he devotes the preponderance of his time to 
operational, administrative and first-line supervisory duties. Accordingly, the AAO cannot conclude that he 
is employed in a primarily managerial or executive capacity as defined at section 101(a)(44) of the Act. 
The AAO will address counsel's assertion that the director erred in denying the petitioner's petition for an 
extension of the beneficiary's status when CIS previously approved a petition based on similar facts. 
Established precedent reflects that prior approvals do not preclude CIS from denying an extension of the 
original visa based on reassessment of the petitioner's qualifications. Texas AhM Univ. v. Upchurch, 99 
Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Further, the petitioner's prior petition to which counsel 
refers was a petition to allow the beneficiary to enter the United States to open a new office. Thus, that 
petition was governed by the regulations pertaining to new offices. See 8 C.F.R. 9 214.2(1)(3)(~). The 
present petition is a request for an extension of the beneficiary's status after completing a one-year period to 
open a new office. Thus, the present petition is governed by a different set of regulations pertaining 
specifically to new office extensions. See 8 C.F.R. 214.2(1)(14)(ii). As different law and evidentiary 
requirements apply to the present petition, the director has a duty to carefully review the petitioner's 
representations and documentation to determine if eligibility has been established. Contrary to counsel's 
suggestion, the fact that a prior petition was approved on behalf of the beneficiary does not serve as prima 
facie evidence that eligibility has been established in the present proceeding. Furthermore, counsel's 
reliance on the above-cited April 23, 2004 Yates Memo is misplaced, as the memorandum clearly states that 
the policy of deferring to previous CIS approvals is not applicable to L-1 new office extension petitions. 
Finally, the AAO acknowledges counsel's objection to the director's determination that the petitioner's 
organization has a reasonable need for a financial department, personnel or administrative department and 
travel department. The AAO concurs that the director's comment that the petitioner "has a need for at least 
three teams of staff to manage the three departments" was inappropriate and this comment will be 
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withdrawn. Although CIS must consider the reasonable needs of the petitioning business if staffing levels 
are considered as a factor, the director must articulate some rational basis for finding a petitioner's staff or 
structure to be unreasonable. See section 101(a)(44)(C) of the Act, 8 U.S.C. $ 1101(a)(44)(C). The AAO 
will not hold the petitioner to the director's standard that the petitioner operate its business with three fully- 
staffed departments. 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. $ 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 
$ 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. In the instant matter, the petitioner has not reached the point that it can employ 
the beneficiary in a predominantly managerial or executive position. For this reason, the appeal will be 
dismissed. 
The second issue in this matter is whether the petitioner has secured sufficient physical premises to house its 
office. The director reviewed the petitioner's lease agreement and photographs of its premises and 
determined that the petitioner had not established that it has sufficient physical premises to demonstrate that 
the company will support a managerial or executive position pursuant to 8 C.F.R. $ 214.2(1)(3)(v)(A). The 
director noted that the lease does not specify the size of the leased premises, and observed that the office 
appears to be a single room. 
On appeal, the petitioner asserts that the company comfortably conducts business from it current premises 
and was not given notice that the size of its office was inadequate. The petitioner further explains why the 
location was chosen, and clarifies that it rents an office suite, and not merely a single "room" as concluded 
by the director. 
Upon review, the AAO will withdraw the director's decision with respect to this issue only. The petitioner's 
lease and the submitted photographs suggest that it has sufficient space to house its current staff in a 
commercial location, and that it is doing business as a travel agency as stated in the petition. While the 
petitioner's office is clearly not large, the director had insufficient grounds to deny the petition on this 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. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.