dismissed L-1A Case: Travel Agency

u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: EAC 07 01252295
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Office: VERMONT SERVICE CENTER Date: DEC 2 1 Z.
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and
Nationality Act, 8 U.S.c. § 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.
R~~
Administrative Appeals Office
www.uscis.gov
EAC 07 012 52295
Page 2
DISCUSSION: The Director, Vermont Center, denied the petition for a non immigrant visa. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act) , 8
U:S.c. § 1101(a)(l5)(L) . The petitioner , a Florida corporation, intends to operate a travel agency special izing
in Peruvian adventure tourism . It claims to be a subsidiary of Union Tours , S.A., located in Peru. The
petitioner seeks to open a new office in the Un ited States and has requested that the beneficiary be granted a
.one-year period in L-l A classification to serve as its president.
The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be
employed by the U .S. entity in a primarily managerial or executive capacity within one year. The director also
found that "the beneficiary's duties abroad do not appear to qualify the beneficiary for a position of L-IA
caliber."
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 ' that asserts that the
petitioner has "exhaustively" shown that the benefic iary's duties will be ma!1agerial.Counsel contends that the
director placed undue emphasis on the size of the U.S. company , rather than focusing on the duties to be
performed by the beneficiary. Counsel also asserts that the beneficiary will supervise three managers who will
relieve him from providing or supervising the provision of services by the U .S. company. Counsel submits a
brief in support of the appeal. I
To establi sh eligibility for the L-l 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 (1)(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.
) Counsel indicated on the Form I-290B , Notice of Appeal, that "newly acquired .evidence (that was not
available on the date of the initial filing) will show that this is an L-l A caliber position." Counsel indicated
that such evidence would be submitted within 30 days. The appeal was filed on January 22, 2007. Counsel
eventually submitted a brief on September 25, 2007 , but no additional evidence has been provided. The .AAO
will accept the late-filed brief and now considers the record of proceeding complete.
EAC 07 012 52295
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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 him/her 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. § 2l4.2(l)(3)(v) also provides that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office in the United
States, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house thenew office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment involves executive or managerial authority over the new
operation; and
(C) The intended United States operation, within one year of the approval of the petition,
will support an executive or managerial position as defined in paragraphs (l)(1)(ii)(B)
or (C) of this section supported by information regarding: .
(1) The proposed nature of the office describing the scope of the entity, its
organizational structure, and its financial goals;
(2) The size of the United States investment and the financial ability of the
foreign entity to remunerate the beneficiary and to commence doing business
in the United States; and
(3) The organizational structure of the foreign entity.
\
The first issue addressed by the director is whether the petitioner established that the U.S. company will
employ the beneficiary in a primarily managerial or executive capacity within one year, as required by 8
C.F.R. § 2l4.2(l)(3)(v)(C).
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
EAC 07 012 52295
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(ii) superv ises 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 d irectly supervised,
functions ata 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 IOl(a)(44)(B) of the Act , 8 U.S .c. § 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 .
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by
CIS regulation, that allows for a more lenient treatment of managers or executives that are entering the United
States to open a new office. When a new business is first established and commences operations, the
regulations recognize that a designated manager or , executive responsible for setting up operations will be
engaged in a variety of low-level activities not normally performed by employees at the executive ,or
managerial level and that often the full range of managerial responsibility cannot be performed in that first
year. In an accommodation that is more lenient than the strict language of the statute , the "new office"
regulations allow a newly established petitioner one year to 'develop to a point that it can support the
employment of an alien in a primarily managerial or execut ive position.
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office ,"
it must show that it is prepared to commence doing business immediately upon approval so that it will support
a manager or executive within the one-year timeframe. This e vidence should demonstrate a realistic
expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental
stage to full operat ions, where there would be an actual need for a manager or executive who will primarily
perform qualifying duties . See generally, 8 C.F.R. § 214.2(l)(3)(v). The petitioner must describe the nature of
its business, its proposed organizational structure and financial goals, and submit ev idence to show that it has
the financial ability to remunerate the beneficiary and commence doing business in the United States. Jd.
( ,
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The nonimmigrant petition was filed on .October 18 , 2006. In a letter dated October 17, 2006, the petit ioner
described the beneficiary's proposed duties as president as follows:
[The beneficiary] will be responsible for all structuring and star-up [sic] acti vities of the U.S.
Subsidiary , which we expect him to be engaged in for the coming months. Although he will
initially have a wide range of duties , he will fulfill the role of President , and as such , will be
responsible for the establishment , management and business development activities of the
U.S. Subsidiary , including sales and marketing strategies, and product and service positioning
in accordance with the Parent Company's established policies and procedures . He will
establish the overall policies and direction of the U.S. Subsidiary, including planning business
objectives, developing organizational policies , and implementing strategies for the attainment
of corporate objectives. [The beneficiary] will be responsible for managing and directing the
operations of the U.S. Subsidiary to ensure maximum performance and profitability pursuant
to the Petitioner's goals and objectives.
[The beneficiary] will also perform the following specialized functions :
• Develop , implement and supervise all marketing, sales , advertising and promotional
campaigns,
• Supervise the research of market conditions worldwide to determine potential markets
for the company's tourism packages.
• Manage the gath~ring of information from competitors , prices , sales, and methods of
marketing.
• Employ research and survey results to create marketing campaigns based on regional
preferences and buying habits.
• Direct and coordinate research & development activities for tourism products and
services .
• Develop pricing strategies and budgets with the goal of maximizing the U.S.
Subsidiary's profits and share of the market, while ensuring the company's customers are
satisfied.
• Hire, train & supervise marketing , sales & customer service staff.
• Oversee the activities of business development personnel, sales and marketing
personnel , to ensure that they are undertaking a coordinated and consistent approach to
the penetration , maintenance and expansion of our identified markets .
• De velop new sales channels worldwide ; and supervise the selection, training, and
activities of independent representatives and distributors.
• Research and develop new business opportunities in the U.S. Hispanic market.
• Hire and fire employees , as necessary.
As President, [the beneficiary] will exercise:
• A high level of authority and a broad range ofjob responsibilities ;
• Leadership on development of key operational performance processes and performance
indicators ;
• . The planning function, and formulate policy and direct important functions for the
organization to achieve its goals;
EAC 07 012 52295
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• Full responsibility for large financial transactions;
• The broadest.discretion in development and directing the activities 'of the company.
The petitioner indicated on Form 1-129 that the petitioner will operate a travel agency, and noted in its
supporting letter that the company "will work to develop the U.S. market for tourism to Peru," particularly
focused on adventure travel and tourism. The petitioner submitted a business plan outlining the company, its
objectives, and its projected balance sheets and profit and loss statements for three years. The business plan
did not include a hiring plan although the AAO notes that the company projected paying annual salaries in
the amount of $75,000 during its first year of operations, and $84,500 by its third year.
The director issued a request for additional eviderice on October 27, 2006, in which the petitioner was
instructed to submit: (1) an organizational chart clearly outlining the beneficiary's proposed position; (2)
complete job descriptions for the positions subordinate to the beneficiary's proposed position; (3) a
comprehensive description of the beneficiary's proposed duties, indicating how such duties are managerial or.
executive in nature; (4) evidence to show how the U.S. company will grow tobe of sufficient size to support a
managerial or executive position; and (5) a copy of the U.S. company's business plan, giving specific dates for
each proposed action, for three years starting with the date the company commenced operations in the U.S.,
and documenting staffing, projections and goals.
In a response dated December 6,2006, the petitioner submitted a "start-up organizational chart" for the U.S.
entity indicating that the beneficiary would manage a general manager, who in tum would supervise a sales
manager and an office manager. The chart shows that the sales manager would supervise travel agents. The
petitioner submitted position description for each of the proposed subordinate employees, which are part of
the record and will not be repeated here. Briefly, the petitioner indicated that that the general manager would
,direct and coordinate the. activities of the travel agency business, manage staff, prepare work schedules,
establish departmental policies and goals, hire and train staff, monitor travel agents and assist the president.
The AAO notes that all of the duties assigned to the sales manager are identical to duties included in the
beneficiary's job description, including developing, implementing and supervising all sales, advertising and
promotion campaigns, supervising market research, developing pricing strategies and budgets, and hiring,
training and supervising travel agents and customer service staff The petitioner indicated that the office
manager will direct and coordinate the daily administrative activities of the company, including, finance and
accounting, directing support services, preparing reports and schedules, analyzing internal processes,
administer and control budgets, purchasing supplies, and hiring clerical and administrative personnel.
The petitioner also submitted a statement describing the beneficiary's duties, in which the petitioner stated that
the beneficiary will supervise subordinate managers, but will primarily perform the duties of a function
manager. The petitioner explained that the success of the company depends upon the beneficiary's knowledge
of the company's tourism and adventure tourism products, its niche markets, the policies and procedures of
the parent company, and the company's "highly specialized" marketing and sales programs. The petitioner
further explained as follows:
[The beneficiary] will be employed at the most senior level in the Company, both with
respect to organizational hierarchy, and with respect to the function managed. He will employ
his functional expertise in Adventure tourism product identification, selection and
procurement at desired price points. He will then implement these tourism products and
services and integrate them into the overall business plan for the U.S. He will then develop
EAC 07012 52295
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sales and marketing programs for the U.S. market. He will build these programs based on his
identification and analysis of niche markets for this highly specialized type of tourism, and he
will identify and develop strategies and programs for the penetration of these new markets. ..
He possesses unique knowledge ofthe large expanse ofthe Peruvian Tourism destinations . ..
[The beneficiary] will not only develop and manage creative commercial strategies, he will
also optimize bus iness performance in areas such as cash flow , supplier relationships and
performance, and customer satisfaction. He will approve recommendations for new plans,
routes and destinations , and will oversee . implementation of all projects. He will manage
external relationships important to the success of the business, working with executive level
management of suppliers, competitors, and third parties. He will work regularly on a peer
level with to [sic] develop business, purchase travel packages and products, manage
technology, comply with legal and tax requirements, and identify , evaluate and implement
plans and projects in order to optimize overall short and long-term business performance. He
will exercise complete authority over suppliers, functional budgets, prioritization of activities;
sales offerings to customers , and allocation of funds to various functions .
[The beneficiary] will be an essential functional manager in the United States. The · actual
duties related to the beneficiary's functional expertise, i.e. , the paperwork, sales, logistics ,
customer service, account management , and accounting will be carried out and/or overseen
by the Company's managers, such as the General Manager and the Sales Manager, who will
implement the technical aspects of [the benefic iary's] vision for the company through the
Travel Agents , in order to make his vision a reality .
The petitioner stated that any "non-qualifying duties" would be eliminated within a one-year period. The
petitioner also provided a chart depicting the functions managed by the beneficiary including
accountinglbudget analysis, operations, marketing/logistics, functional development, business
development!Internet strategies,policies and procedures, sales and strategy and "functional leadership for
sales managers and travel agents."
Finally, the petitioner submitted a revised business plan , which includes on page 15 a personnel plan for the
first five years of operations. During fiscal year 2007 , the petitioner anticipates operating with a total staff of
three employees, including the beneficiary and two travel agents , and total salary costs of $75,000. According
to the personnel plan , one sales manager and one additional travel agent would be hired during the second
year of operations, and the company would maintain a staff of five employees through 2011. Notably , the
proposed positions of general manager and office manager are not mentioned in the petitioner's business plan.
The director denied the petition on December 20, 2006, concluding that the petitioner had failed to establish
, that the beneficiary would be employed in a primarily managerial or executive capacity within a one-year
period ? The director noted the petitioner's intent to employ three people during the first year of operations
and determined that the company would not grow to a sufficient size to support the beneficiary in a primarily
2 The AAO notes that the director's decision referenced the regulations governing the extension of a petition
involving a new office pursuant to 8 C.F.R. § 214.2(l)(l4)(ii). However, a review of the decision in its
entirety reflects that the director applied the appropriate regulatory requirements for an initial new office
petition pursuant to 8 C.F.R. § 214.2(l)(3)(v).
EAC 07 012 52295
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managerial or executive capacity. The director acknowledged the position descriptions submitted for the
beneficiary, but found that he will "act more or less as a first line supervisor of one office with direct
responsibilities related to providing a service overseeing non-professional travel agent positions." The director
also found the business plan insufficient to support a finding that the proposed entity would "elevate the
proposed position to one of managerial or executive capacity."
, On appeal , counsel for the petitioner states that the petitioner has "exhaustively shown" that the beneficiary's
duties will be managerial and executive in nature, and contends that the petitioner has described in great detail
the functions to be performed. Counsel alleges that the director erroneously based the denial on the size of
the business, rather than on the duties to be performed, noting,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 cites National Hand Tool v. Pasquarell, 889 F.2d l472n.2 (5th Cir. 1989) , Mars Jewelers v. INS, 702
F. Supp. 1570, 1573 (N.D . Ga. 1988), and numerous unpublished AAO decisions in support of these claims.
Couse1reiterates that the current regulations include functional managers, and place less emphasis on the size
ofthe company.
Counsel contends that the actual duties necessary to provide the services of the pet itioning company will be
performed by a general manager, a sales manager and travel agents , while the office manager will oversee the
actual sale, administration and delivery of tour packages to customers. Counsel asserts that the petitioner
never mentioned that the beneficiary would be involved in producing or supervising the production of tour
packages for customers. Rather, counsel asserts that the beneficiary will be primarily "developing and
expanding the business across U.S. markets." Counsel emphasizes that the beneficiary will be in charge of a
complex international operation requiring "complex logistical, pricing and in-country knowledge of an
ancient, vast and" diverse nation ." Counsel concludes that it is "a misapplication of the law to deny the
petition of a small company whose beneficiary is a manager who does not engage in first-line supervision and
whose work is complex."
Upon review of the petition and the evidence, the petitioner)has not established that the beneficiary will be
employed by the United States entity in a managerial or executive capacity within one year.
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 : § 214.2(l)(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. Beyond the required description of the job duties , U.S.
Citizenship and Imm igration Services reviews the totality of the record when examining the claimed
managerial or executive capacity of a beneficiary , including the petitioner's proposed organizational structure ,
the duties of the beneficiary 's proposed subordinate employees, the petitioner's timeline for hiring additional
staff, the presence of other employees to relieve the beneficiary from performing operational duties at the end
of the first year of operations, the nature of the petitioner 's business, and any other factors that will contribute
to a complete understanding of a beneficiary's actual duties and role in a business . The petitioner's evidence
should demonstrate a real istic expectation that the enterprise will succeed and rapidly expand as it moves
away from the developmental stage to full operat ions, where there would be an actual need for a manager or
executive who will primarily perform qualifying duties. See generally, 8 C.F.R. § 214.2(l)(3)(vY.
In the instant matter , the petitioner's descriptions of the beneficiary's proposed position, while lengthy, are
insufficient to establish that the beneficiary would perform primarily managerial or executive duties on a
EAC 07 01252295
Page 9
day-to-day basis. For example, the petitioner's statements that the beneficiary will "establish the overall
policies and direction" of the company, plan business objectives ; develop organizational policies , and
implement strategies merely paraphrase the statutory definition of executive capacity and convey little
understanding of the beneficiary's actual duties . Conclusory assertions regarding the beneficiary's
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not
satisfy the petitioner's burden of proof. Fedin Bros . Co., Ltd. v. Sava, 724 F. Supp . 1103, 1108 (E.D.N.Y.
1989), aff'd, 905 F . 2d 41 (2d .Cir. 1990); Avyr Associates, Inc . v. Meissner, 1997 WL 188942 at *5
(S.D.N.Y.).
Moreover, several of the beneficiary's duties are more akin to those of a market research -analyst or marketing
representative rather than those typically assigned to a manager or executive, such as developing marketing ,
sales, advertising and promotional campaigns, and employing research and surveying results to create
marketing campaigns. Although the petitioner indicates that the beneficiary will "supervise" ,the research of
market conditions, "manage" the gathering of information from competitors , and "direct and coordinate
research and development activities," the petitioner's business plan does not identify any lower-level
employees who would actually perform routine market research functions. The AAO also questions why all
of the duties assigned to the sales manager are identical to duties included in the beneficiary's initial position
description. Since the petitioner's business plan suggests that the sales manager would be hired some time
during the second -year of operations, theAAO finds it reasonable to conclude that the beneficiary would _
retain sole responsibility for non-qualifying marketing and market research duties atthe end of the first year
of operations and these duties have riot been shown to be primarily managerial or executive in nature.
In addition, the evidence submitted indicates that the beneficiary would be solely responsible for "product
identification, selection and procurement," "supplier relationships," and purchase of travel packages and ­
products to be offered by the U.S. company, and suggests that he would also design travel packages. These
are tasks required to prov ide the petitioner's service and have also not been demonstrated to be managerial or
executive in nature.
The definitions of executive and managerial capacity have two separate requirements. First, the petitioner
must show that the beneficiary performs the high -level responsibilities that are specified in the definitions.
Second, the petitioner must prove 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) . The AAO does not doubt that the beneficiary will
have managerial or executive authority over the petitioner's start-up ' operations and would eventually
supervise the day-to-day operations of the business once it is operational. However , based on the position
description alone , the AAO is unable to determine whether the claimed managerial duties would constitute the
majority of the beneficiary's duties, or whether the beneficiary would primarily perform non-managerial
administrative or operational duties. The petitioner's description of the beneficiary's job duties does not
establish what proportion of the beneficiary's duties is managerial in nature , and what proportion is actually
non-managerial. See Republic of Transkei v. INS , 923 F.2d 175 , 177 (D.C. Cir. 1991). 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 (Bjof the Act
(requiring that one "primarily" perform the enumerated managerial or executive dut ies); see also Matter of
.Church Scientology Int'!., 19 I&N Dec. 593,604 (Comm. 1988).
EAC 07 01252295
Page 10
Accordingly, the totality of the record must be considered in analyzing whether the proposed duties are
plausible considering the petitioner's anticipated staffing levels and stage of development within a one-year
period'. The petitioner has submitted two business plans , both of which indicate that the petitioner anticipates
total salary costs of $75,000 during the first year of operations. The business plan submitted in response to
the director's request for ev idence indicates that this amount will be divided among the beneficiary as
president and two travel agents , with an additional travel agent and a sales manager to be hired in 2008. At the
same time , the pet itioner 'indicated that it intends to hire a general manager , an office manager , a sales
manager and travel agents during the first year of operations. It is incumbent upon the petitioner to resolve
any inconsistencies in the record by independent object ive 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Given the petitioner's consistent information regarding its anticipated salary payments for the first year of
operations, the AAO finds the staffing structure contemplated in the business plan to be more persuasive .
Further, the business plan, which includes a personnel plan for the years 2007 through 2011, does not indicate
the petitioner's intention of hiring a general manager or an office manager during the five-year period. Doubt
cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and
sufficiency of the remaining evidence offered in support of the visa petition . Matter ofHo, 19 I&N Dec. 582,
591 (BIA 1988) . The record demonstrates that the petitioner will employ only the beneficiary and two travel
agents at the end of the first year of operations. Although the director reached this same conclusion based on
the evidence submitted , counsel insists on appeal that the beneficiary will manage and delegate non­
qualifying operational and supervisory duties to the office manager, sales manager and general manager .
Without documentary evidence to support the cla im, the assertions of counsel will not satisfy the petitioner's
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matt er ofObaigbena , 19
I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano , 19 I&N Dec. 1 (BIA 1983) ; Matter ofRamirez-Sanchez,
17 I&N Dec. 503, 506 (BIA 1980) .
The petitioner correctly observes that a company's size alone, without taking into account the reasonable
needs of the organization , may not be the determining factor in denying a visa to a multinational manager or
executive. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1l01(a)(44)(C). However, it is appropriate for U.S.
Citizenship and Immigration Services (US 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. Systronic s Corp. v. INS, 153 F. Supp. 2d 7, 15
(D.D.C. 2001). Moreover , in reviewing the relevance of the number of employees a petitioner has', federal
courts have generally agreed that CIS "may properly consider an organization's small size as one factor in
assessing whether its operations are substantial enough to support a manager." Family, Inc. v. Us. Citizenship
and Immigration Services, 469 F :3d 1313, 1316 (9 th Cir. 2006) (citing with approval Republic of Transkei v.
INS, 923 F.2d 175, 178 (D.C. Cir. 1991) ; Fedin Bros. Co. v. Sava , 905 F.2d 41 ,42 (2d Cir. 1990) (per
curiam); QData Con sulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)).
The record demonstrates that at the end of one year , the U .S. company will employ the beneficiary as
president and two travel agents. The travel agents' duties are limited to communicating with customers,
computing and quoting travel costs, selling travel packages, booking transportation and hotel reservations,
and collecting payments from customers. 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 a president who
EAC 07 012 52295
Page 11
performs primarily managerial or executive duties and two travel agents. All other non-managerial tasks
associated with operating the business would necessarily fall under the beneficiary's responsibility , including
purchasing, market research , marketing and promotion , supplier and vendor relationships , routine banking
and financial tasks , administrative and clerical functions. The record does not suggest that these non­
qualifying tasks would be merely incidental to any managerial tasks the beneficiary would perform. Again , an
employee who "primarily " performs the tasks necessary to produce a product or to provide services is not
considered to be "primar ily" employed in a manager ial or executive capacity. See sections 101(a)(44)(A) and
(B) of the Act (requiring that one "primarily" perform the enumerated .managerial or executive duties); see
also Matter of Church Scientology Int 'I, 19 I&N Dec. 593, 604 (Comm. 1988) .
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)~A)(i) and (ii). Personnel
managers are required to primarily supervise and control the work of other supervisory, professional, or
managerial employees . Contrary to the common understanding of the word "manager," the statute plainly
states that a "first line supervi sor 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)(A)(iv) of the Act ; 8 C .F.R. § 214.2(l)(l)(ii)(B)(2). If a beneficiary directly supervises other
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those
actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3).
Although counsel claims that the beneficiary will manage three managers , the evidence submitted
demonstrates that the beneficiary's only subordinates at the end of one year will include two travel agents. The
petitioner has neither claimed nor established that the travel agents would be employed in managerial ,
supervisory or professionals positions. Thus, the beneficiary cannot be considered a personnel manager based
on his supervision of two non-professional personnel.
Alternatively, the petitioner claims that the beneficiary would be employed primarily as a functional manager.
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. § 1101(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 furnish a written job offer that clearly describes the duties to be
performed in managing the essential function , i.e. 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 . See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's description of the beneficiary's
daily duties must demonstrate that the beneficiary manages the function rather than performs the dut ies
related to the function. In this matter , the petitioner has not provided evidence that the beneficiary would
manage an essential function. .
The petitioner stated that the U .S. company requires the beneficiary's "functional expertise" in the Peru vian
tourism industry and his "vision ," and notes that all "actual duties related to the beneficiary's functional
expertise" would be carr ied out by or overseen by the company's three ~anagers. While the AAO does not
doubt the beneficiary's familiarity and experience with the Peruvian tourism market and his authority to
determine the company's strategies and directions , the record does not establish that someone other than the
beneficiary would perform the majority of the "actual duties related to the beneficiary's functional expertise ."
As discussed above, the petitioner has not demonstrated that it will employ the three subordinate managers '
EAC 07 012 52295
Page 12
within a one-year period , nor is the AAO persuaded that two travel agents would relieve the beneficiary from
performing primarily non-managerial duties. Whether the beneficiary is a function manager turns on whether
the petitioner has sustained its burden of proving that his duties are "primarily" managerial in nature. See
section 10I(a)(44)(A) of the Act.
Counsel asserts on appeal that the beneficiary would also be employed in an executive capacity within one
year. The statutory definition of the term "executive capacity" focuses on a person's ele,:"atedposition within a
complex organizational hierarchy, including major components or functions of the organization, and that
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U$.c. § 1101(a)(44)(B).
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of
managerial employees · for the beneficiary to direct and the beneficiary must primarily focus on the broad
goals and policies of the organization rather than the day-to-day operations of the enterprise. An individual
will not be deemed an executive under the statute simply because they have an executive title or because they
"direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide
latitude in discretionary decision making" and receive only "general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization." Id. The petitioner has not established
that the beneficiary will be relieved from primarily focusing on the day-to-day operations of the business
within one year , or that he will "direct the management" of the company.
Counsel cites National Hand Tool Corp.v. Pasquarell , 889 P.2d 1472, n.2 (5th Cir. 1989), and Mars Jewel ers,
Inc. v. INS, 702 P.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. It is noted that both of the cases ' cited by counsel relate to immigrant visa petitions , and
not to a "new office" nonimmigrant visa petition. As the new office regulations call for a review of the
petitioner's business plan and proposed staffing levels, the cases cited by counsel are distinguishable based on
the applicable regulations. See 8 C.P.R. § 214.2(1)(3)(v)(C)(l). 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 ofK­
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. The AAO has long interpreted the regulations and statute to prohibit discrimination against
small or medium-size businesses. However , the AAO has consistently required the petitioner to establish that
the beneficiary's position consists of primarily managerial and executive duties and that the petitioner will
have sufficient personnel to relieve the beneficiary from performing operational and administrative tasks .
Counsel further refers tounpublished decisions in which 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 or supervised 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.P.R. § 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 .
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed
'by the petitioner in a primarily managerial or executive capacity within one year. For this reason, the appeal
will be dismissed.
EAC 07 01252295
Page 13
The second issue to be addressed is whether the petitioner established that the beneficiary has been employed
by the foreign entity for one continuous year in the thr ee-year period preceding the filing of the petition in an
. executive or managerial capacity , as required by 8 C.F .R. § 214.2(l)(3)(v)(B) . . The director noted in h is
decision that "the beneficiary's duties abroad do not appear to qualify the beneficiary for a position of L-IA
caliber since the duties are not clearly of a managerial or executive nature and .. . appear to be consistent with
that of a first-line superv isor." The director concluded that the record did not establish that the beneficiary
"has been" or will be employed in the capacity of an executive or manager .
On appeal, counsel does not address the director's finding that the beneficiary was not employed in a
qualifying managerial or executive capacity with the foreign entity. Upon review , the AAO concurs with the
director's ultimate conclusion that the petitioner has not satisfied the requirement set forth at 8 C.F .R. §
214.2(l)(3)(v)(B). The AAO notes, however, that the record does not support the director's finding that the
beneficiary was merely a first-line supervisor, as the foreign entity appears to employ an assistant sales
manager, subordinate to the beneficiary's position of sales manager, and this employee appears to be
responsible for the first-line supervision of the foreign entity 's travel agents.
However, although not addre ssed by the director , the record clearly demonstrates that the beneficiary was not
employed by the foreign entity for one continuous year in the three-year period preceding the filing of the
petition, and therefore the beneficiary is 'ineligible for this visa classification. The petitioner indicates that the
beneficiary commenced employment with the foreign entity on January 1, 2005 . The beneficiary was
admitted to the United States in B-2 status as a nonimm igrant visitor on October 21', 2005 and remained in the
United States up until .the time the instant petition was filed on October 18, 2006 . The petitioner must establish
that the beneficiary was employed by the foreign entity for one continuous year prior to his admission to.the
United States, as time spent in the United States cannot be counted towards the fulfillment of the beneficiary's
period ofqualifying employment abroad. See 8 C.F.R. § 214.2(l)(1)(ii)(A). The beneficiary has less than eleven
months of qualifying employment with the foreign entity and is therefore ineligible for classification as an
intracompany transferee . For this additional reason , the appeal will be dismissed .
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'd. 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) .
The petition will be denied and the appeal dismissed for the above stated reasons , with each considered as an
independent and alternative ba.sis 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. § 1361.
Here , that burden has not been met.
ORDER : The appeal is dismissed.