dismissed L-1A Case: Wholesale Giftware

U.S. Department of Homeland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
dentiMag data defeaed to 
prevent dearly unw- 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
File: WAC 04 17 1 50295 Office: CALIFORNIA SERVICE CENTER Date:JUN 0 2 2006 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101(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 17 1 50295 
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 the beneficiary as an L- 
1 A nonimmigrant intracompany transferee pursuant to section 1 O 1 (a)( 15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. fj 1101(a)(15)(L). The petitioner, a corporation organized in the State of 
California that is engaged in the wholesale of giftware and home decoration items, including Christmas 
as its president. The petitioner claims that it is the subsidiary of 
, located in Guangdong, China. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner claims that it has 
established that the beneficiary has been functioning as an executive, and further claims that the director's 
erroneous characterization of the beneficiary's duties and the petitioner's organization resulted in an incorrect 
decision by the director. 
To establish 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. fj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher 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. 
WAC 04 171 50295 
Page 3 
The regulation at 8 C.F.R. 5 214.2(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 management or executive 
capacity; and 
(e) 
 Evidence of the financial status of the United States operation. 
The primary issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for which the 
employee has authority. A first line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
WAC 04 17 1 50295 
Page 4 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, the petitioner submitted a letter dated May 19, 2003 in which it discussed the 
beneficiary's qualifi 
 position. The petitioner also stated that it was doing business under 
the fictitious name ' 
 and that it had a net loss of $93,967 for the year 2003. On the L 
Supplement to the Form 1-1 29, the petitioner described the beneficiary's duties as follows: 
[The beneficiary is] [i]n charge of all overall management of the company. [He] [elxercises 
wide latitude in discretionary decision making. [He] [dlirects the implementation of the 
business expansion plan and operation policies. [He] [dlirects the utilization of financial 
reports and activity data to determine the strategy and progress of the company's business and 
designate further business goals and plans. [He] [mleets with local business leaders to build 
up the network for the company. [He] [olverses management strategies and promotion 
activities, and approve[s] the management improvement. [He] [hlas the authority to hire, 
terminate, evaluate and promote the managerial personnel based on their job performance, 
qualification and contributions. 
Additionally, in the letter of support dated May 19, 2003, counsel stated: 
[The beneficiary] works as a president for [the] U.S. company. He performs the executive 
duties of [the] company's import, export & international trade. He also establishes goals and 
policies of the company. He spends all or substantially all of his time in these executive 
duties. 
Due to his experience with the development and management of the parent company and U.S. 
subsidiary, the continuation of his service as the president of the U.S. subsidiary is needed for 
the next three years. At present, there is no single individual in the subsidiary who can 
assume a leadership position to continue the success achieved in the past. 
The director found the initial description of duties insufficient, and consequently issued a request for 
additional evidence on July 13, 2004. The request specifically asked the petitioner to submit an 
organizational chart outlining the organizational hierarchy of the entity, with the names, position titles, 
position descriptions, educational levels and salaries of all employees. The director also requested more 
WAC 04 17 1 50295 
Page 5 
evidence establishing the executive capacity of the beneficiary, including the specific goals and policies and 
the specific discretionary decisions made by the beneficiary within the past six months, in addition to the 
beneficiary's day-to-day duties. 
In a response dated July 30, 2004, the petitioner provided the following list of employees, in order of their 
rank in the organizational hierarchy: 
Name Job TitlesIDuties Education Salary 
Beneficiary President: High School $2,00O/month 
General administration 
Executive Secretary1 
Treasurer: 
Execute all policies initiated 
by the President. 
Responsible for all financial 
chores in U.S. operation, 
taxation, auditing, and 
budgeting. 
SalesIHuman Resources: 
In charge of all phases of 
sales operations, custom 
duties, sales, and customer 
services. Be responsible for 
all hiring processes, employee 
benefits, and profit sharing. 
General Affairs: 
Be responsible for all 
in-house office management, 
purchasing office equipment, 
contracting, and shipping 
duties. 
Technology Development: 
In charge of all in-house 
computer operations, search 
B.A. 
B.S. 
High School 
B.S. 
information through computer, 
and warehouse management. 
WAC 04 171 50295 
Page 6 
With regard to the director's specific questions pertaining to the beneficiary's duties for the past six months, 
counsel stated: 
Over the last six months, [the beneficiary] has established company framework including 
expense and reporting policies. He has also established product development procedures 
such as establishing information collection policy for store visit, catalog collection, and 
internet, as well as established product development approach for tread identification, color 
coding, and sample making for products such as Patriotic Santa. In addition, [the beneficiary] 
established sales strategies including building website, booth in trade shows such as Las 
Vegas ASDIADM show and Canton Fair, developing short-term strategy to contact 
distributors and wholesalers such as Imperial Distributors and ICM, and developing long- 
term strategy to contact retailers. For example, [the beneficiary] [] successfully got Wal-Mart 
Canada and ABC Distributing as U.S. subsidiary's customers. He also made contact with 
over 20 retailers including K-Mart, Rite Aid and Walgreens. Moreover, he was responsible 
for making discretionary decisions on the rounds of customers to approach, products to be 
presented to customers, and final product prices and discount offers. His day-to-day duties 
now and over the last six months include approval of expenses, analyzing reports on company 
financial activities, confirming purchase orders, approval on terminating, hiring, and 
promoting employees, approval of U.S. subsidiary's policies and strategies, directing business 
expansion plan, and dealing with customers of senior levels. 
The petitioner also submitted copies of its employees' W-2 forms for 2003. 
On July 30, 2004, the director denied the petition. The director found that the evidence in the record failed to 
establish that the beneficiary would be functioning in a primarily managerial or executive capacity. 
Specifically, the director concluded that the beneficiary would be performing the day-to-day tasks of the 
organization. The director further concluded that the petitioner would not reach the point where it could 
employ the beneficiary in a primarily managerial or executive capacity by the end of the first year of 
operations since it appeared that the beneficiary would merely be involved in many customer service related 
duties. 
On appeal, counsel for the petitioner restates the beneficiary's qualifications as an executive and specifically 
lists the beneficiary's primary duties and discusses each in detail. Counsel further asserts that the director's 
conclusions about the beneficiary's role in the petitioner and the infancy of its organization led to the 
erroneous conclusion that the beneficiary was not acting primarily as a manager or executive. 
Upon review, the petitioner's assertions are not persuasive. Whether the beneficiary will be a manager or 
executive employee turns on whether the petitioner has sustained its burden of proving that her duties are 
"primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. 
 In this case, the 
petitioner asserts that the beneficiary is a qualified executive by virtue of his position title of president, 
experience abroad, and associated duties. However, the description of duties provided is vague and fails to 
specify the exact nature of the claimed executive duties. Specifics are clearly an important indication of 
whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the 
WAC 04 171 50295 
Page 7 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), agd, 905 F.2d 41 (2d. Cir. 1990). 
The description of the beneficiary's proposed duties, provided with the initial petition and again in response to 
the director's request for evidence, is vague and seems to merely paraphrase the regulatory definitions. For 
example, on the organizational list of employees and their duties, the beneficiary's position is summed up as 
merely "general administration." In the more specific statement of the beneficiary's daily duties for the past 
six months, duties such as "approval of expenses," "confirming purchase orders," and "dealing with customers 
of senior levels" identify tasks that do not exclusively fall under the definitions of managerial or executive 
capacity. The actual duties themselves reveal the true nature of the employment. Id. In reviewing the 
beneficiary's stated duties, it appears that the majority of his time will be devoted to the operation of the 
business. For example, the response to the request for evidence indicates that the beneficiary has been 
establishing sales strategies and executing contracts with various retailers and distributors. The petitioner 
further discusses the beneficiary's role in the building of its website and his attendance at trade shows. These 
tasks are clearly essential to the operation and expansion of the petitioner's business, and are not qualifying 
duties under the definition of executive or managerial capacity, as the petitioner contends. 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 (Comm. 1988). 
It is evident, therefore, that the beneficiary has been and will be performing duties that would normally be 
delegated to subordinate employees in order to keep the business operational. The petitioner states that there 
is no other person in the organization qualified to handle the beneficiary's position. Since, as stated above, 
the position requires many functional tasks directly associated with the introduction of the petitioner's 
products into the U.S. market, it cannot be concluded that the beneficiary will be operating in a qualifying 
capacity, because by the petitioner's own admission, the duties of the position are exclusive to the 
beneficiary. 
Counsel for the petitioner claims on appeal that the beneficiary's duties are in fact primarily executive, and 
counsel individually addresses several of the beneficiary's stated duties and explains the manner in which 
they are qualifying tasks. For example, counsel states that approval of expenses is done by the petitioner's 
executive secretary and not the beneficiary. This claim is directly contrary to the statement in the July 30, 
2004 letter where it is claimed that this is one of the beneficiary's exclusive duties. With regard to 
"confirming purchase orders," counsel asserts that the beneficiary insists on signing them personally, but that 
the actual confirmation of orders is handled by the sales staff, in addition to the general purchasing. Again, 
there was no indication of the assistance of the sales staff when the statement of the beneficiary's duties was 
provided in response to the director's request. Finally, with regard to the establishment of the company 
website and trade show booths, counsel claims that these results were accomplished by the sales and technical 
staffs, and were developed by the general manager. Counsel continues to remove the beneficiary from the 
performance of these day-to-day activities, alleging that the director's finding in the matter was erroneous. 
There are two problems with counsel's assertions on appeal. First, these assertions directly contradict the 
previous statement of the beneficiary's duties for the previous six months, and raise the question of counsel's 
motive in offering a new level of responsibility to the beneficiary on appeal. On appeal, a petitioner cannot 
WAC 04 171 50295 
Page 8 
offer a new position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Second, the petitioner's stance with regard to the continued need for the beneficiary's services is that only he 
is qualified to perform the duties described in detail prior to adjudication. To now assert on appeal that the 
beneficiary merely directs the staff, and does not perform these crucial and specialized duties previously 
deemed exclusive only to him raises questions with regard to the validity of the petitioner's claims. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). If CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) 
of the Act, 8 U.S.C. 8 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann 
Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 1 53 F. Supp. 2d 7, 15 
(D.D.C. 2001). 
Although the petitioner alleges that the beneficiary is qualified for the visa extension based on his executive 
employment, Citizenship and Immigration Services (CIS) also affords review under the definition of 
managerial capacity to increase the beneficiary's chance of meeting the regulatory requirements. In this 
matter, however, the director concluded that the beneficiary was not acting in a managerial capacity based on 
his failure to supervise a staff of subordinate managers or professionals. Although the beneficiary is not 
required to supervise personnel, if it is claimed that his duties involve supervising employees, the petitioner 
must establish that the subordinate employees are supervisory, professional, or managerial. See tj 
10 1 (a)(44)(A)(ii) of the Act. 
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 10 1 (a)(32) of the Act, 8 U.S.C. 3 1 10 1 (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. 81 7 (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 the subordinate employee. While the petitioner provided the level of education attained by each of its 
employees, and the AAO notes that executive secretary holds a Bachelor of Arts Degree and the saleslhuman 
resources and technology development employees hold Bachelors of Science, 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, in fact, 
WAC 04 17 1 50295 
Page 9 
established that a bachelor's degree is actually necessary, for example, to perform the duties of the 
saleslhuman resources employee, who is among the beneficiary's subordinates. 
Thus, the petitioner has not established that these employees require a bachelor's degree, such that they could 
be classified as professionals. Nor has the petitioner shown that either of these employees supervise 
subordinate staff members or manage a clearly defined department or function of the petitioner, such that they 
could be classified as managers or supervisors. Thus, the petitioner has not shown that the beneficiary's 
subordinate employees are supervisory, professional, or managerial, as required by section 10 1 (a)(44)(A)(ii) 
of the Act. 
Finally, counsel asserts that the director's reliance on the infancy of the petitioner and its lack of staff to 
relieve the beneficiary from performing non-qualifying duties is an erroneous basis for the denial. Pursuant to 
section 10 1 (a)(44)(C) of the Act, 8 U.S.C. tj 1 101 (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. tj 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. tj 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 the reasons set forth above, the petitioner has failed to establish that the beneficiary's duties would be 
primarily managerial or executive in nature, or that the petitioner is able to support the beneficiary in a 
primarily managerial or executive capacity. For this reason, the petition may not be approved. 
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.