dismissed L-1A Case: Wholesale Trade

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
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U. S. Citizenship 
and Immigration 
Services 
F~le: WAC 04 046 53360 Office: CALIFORNIA SERVICE CENTER Date: 8 8 
IN RE: Petitloner: 
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) 
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 04 046 53360 
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 president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 4 1101(a)(15)(L). The petitioner is a corporation organized in the State of Texas that 
is engaged in the wholesale trade of filtration parts and automobile components. The petitioner claims that it 
is the subsidiary of Yong I1 Transportation Co., Ltd., located in Incheon, Korea. The beneficiary was initially 
granted a one-year period of stay in order to open a new office in the United States and was subsequently 
received a two-year extension of stay. The petitioner now seeks to extend the beneficiary's stay for an 
additional three years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner disputes the director's 
claim that the beneficiary is merely a first-line supervisor and asserts that the beneficiary is employed in a 
"managerial/executive" capacity. 
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. 4 214.2(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 
WAC 04 046 53360 
Page 3 
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. 
At 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. 3 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; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 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 a November 25, 2003 letter submitted in support of the initial petition, the petitioner indicated that as 
president, the beneficiary will exercise wide latitude in discretionary decision making, formulate short-term 
WAC 04 046 53360 
Page 4 
and long-term goals, establish and implement policies and hire, fire and promote employees. The petitioner 
indicated on Form 1-129 that it employed three individuals at the time the petition was filed. 
In support of the petition, the petitioner provided an organizational chart showing the beneficiary as 
"president & branch manager" supervising a corporate secretary, who in turn supervises a "purchasing and 
export administrator." In an attached statement, the petitioner provided brief job descriptions for the 
beneficiary and his subordinates: 
President and Branch Manager - Responsibilities include managing entire U.S. branch office 
operation and develop new business opportunities. Also responsible for formulating both 
short term and long term goals and will continue to establish and implement policies of the 
company. 
Corporation Secretary - Responsibilities include financial management and price negotiation 
with vendors. Has final authority to establish purchasing and selling prices. Report directly to 
the president. 
Purchasing and Export Administrator - Responsibilities include search and obtaining 
potential source of supply, price negotiation and issuing purchase orders. Also responsible for 
handling of import and export transactions. Initiate new business projects under direct order 
and supervision from the president. 
The petitioner provided the date of hire, salary and educational background for each employee, noting that the 
corporation secretary has a bachelor's degree in aerospace engineering and the purchasing and export 
administrator has a bachelor's degree in Chinese literature and a master's degree in speech communication. 
On March 29, 2004, the director requested additional evidence. In part, the director instructed the petitioner to 
submit: (1) an organizational chart for the U.S. company clearly listing all employees under the beneficiary's 
supervision, and including a brief description of job duties, educational level, annual salaries wages and 
immigration status for all employees; (2) a list of all of the U.S. company's employees from the date of 
establishment to the present, including names, job titles, social security numbers, beginning and end date of 
employment, wages per week, and alien registration numbers and immigration status for any non-U.S. citizen 
employees; and (3) a detailed description of the beneficiary's duties in the U.S. and the percentage of time he 
spends on each of the listed duties. 
In a reply dated June 16, 2004, the petitioner submitted a revised organizational chart showing that the 
beneficiary directly supervises the corporate secretary, purchasing and export administrator, and a "product 
support" employee as of April 2004. The petitioner attached a statement titled "List of Current Employees" 
which provides brief job descriptions for the beneficiary's subordinates identical to those submitted with the 
initial petition. The petitioner also included a job description for the product support employee hired in 
January 2004, indicating that he arranges shipping and advises customers of order status and schedule. The 
petitioner noted that the corporate secretary, who previously received a $1,000 monthly salary and bonus, 
began working on commission only as of January 2004. 
WAC 04 046 53360 
Page 5 
The petitioner provided a list of the five employees who have worked for the petitioner since it commenced 
operations in February 2001. Finally the petitioner submitted the following job description for the beneficiary: 
Manage and maintain daily business operation (40%) 
Identify and review new products for possible export to Korea market (20%) 
Contact manufacturers and distributors for a possible distribution right to and from Korea 
(10%) 
Manage and maintain customer's relationship at executive levels (20%) 
Review sales project, business plan and establish the business direction for the U.S. operation 
(1 0%) 
On July 20, 2004, the director denied the petition concluding that the beneficiary would not be employed in a 
managerial or executive capacity under the extended petition. Specifically, the director found that the 
petitioner did not demonstrate that the beneficiary would manage a subordinate staff of professional, 
managerial or supervisory personnel who would relieve the beneficiary from performing non-qualifying 
duties. The director concluded that the beneficiary is performing as a first-line supervisor of non-professional 
employees, rather than as a manager or executive. 
On appeal, counsel for the petitioner asserts that the beneficiary's subordinates serve in a "supervisory and 
administrative" capacity and relieve the beneficiary from mere first-line supervisory duties. Counsel claims 
that the beneficiary's subordinates utilize "industry resources7' to cany out their job functions, thus freeing the 
beneficiary to oversee the company's goals and enter into major contracts. Counsel further asserts: "The size 
of the company is irrelevant in this situation as the business deals with directing its sales and distribution 
utilizing industry resources as opposed to an industry that utilizes its internal uses for all transaction." Finally, 
counsel provides a more detailed job description for the beneficiary which indicates that he devotes 49 
percent of his time to management and review, 31 percent of his time to marketing; 10 percent of his time to 
conferences with "managerial/sales staff," and 10 percent of his time to goals and policies. 
Upon review, counsel's assertions are not persuasive. As a preliminary matter, the AAO acknowledges the 
expanded job description submitted by counsel on appeal. The petitioner was previously instructed to provide 
a detailed description of the beneficiary's job duties and the percentage of time he devotes to each duty. The 
petitioner responded to the director's request for additional evidence. On appeal, rather than elaborating on 
the job description previously provided, counsel submits a considerably different account of the beneficiary's 
duties. A petitioner cannot 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). Therefore, the 
analysis of this issue will be limited to the evidence submitted with the initial petition and in response to the 
request for evidence. 
WAC 04 046 53360 
Page 6 
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(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. The petitioner does not clarify whether the beneficiary is 
claiming to be primarily engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily 
executive duties under section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a 
hybrid "executive/manager" and rely on partial sections of the two statutory definitions. At a minimum, the 
petitioner must demonstrate that the beneficiary's responsibilities will meet the requirements of one or the 
other capacity. 
The petitioner's initial description of the position generally paraphrased the statutory definitions of 
managerial and executive capacity. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 
$5 1101(a)(44)(A) and (B). For instance, the petitioner indicated that the beneficiary would "exercise wide 
latitude in discretionary decision making," "formulate short-term and long-term goals" "establish and 
implement policies," and "hire and fire employees." However, conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient to meet the petitioner's burden of proof. Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin 
Bros. Co. Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The job duties described in the petitioner's response to the director's request for a detailed job description are 
too broad and nonspecific to convey an understanding of the beneficiary's daily responsibilities. For instance, 
the petitioner indicates that he will devote 40 percent of his time to "manage and maintain daily business 
operation;" however, the petitioner has not provided any indication as to what specific tasks the beneficiary 
performs within this broad responsibility. The beneficiary will also "identify and review new products for 
possible export to the Korean market," "contact manufacturers and distributors," and "manage and maintain 
customer's relationship at the executive levels." Without further explanation, these duties, which require 50 
percent of the beneficiary's time, cannot be distinguished fi-om non-qualifying market and product research, 
sales, and customer service tasks. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Crafl of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co. Ltd. v. Sava, 724 F. Supp. 
at 1108. The AAO will not speculate as to what managerial and executive duties the beneficiary may perform 
in the absence of the required detailed job description. The petitioner's job descriptions are insufficient to 
establish that the beneficiary's duties will be primarily managerial or executive in nature. 
Moreover, contrary to counsel's assertions, the petitioner has not demonstrated that the beneficiary will 
primarily supervise a subordinate staff of professional, managerial, or supervisory personnel who can relieve 
him from performing non-qualifying duties. See section 101(a)(44)(A)(ii) of the Act. At the time of filing, the 
petitioner claimed to employ a corporate secretary and a purchasing and export administrator whose duties 
have only been vaguely defined. Counsel claims that the beneficiary's subordinates are supervisors because 
they work with "industry sources" such as logistics companies in order to cany out their job functions. 
However, a distinction must be made between supervising the work of subordinate employees and contracting 
WAC 04 046 53360 
Page 7 
the services of outside service providers to accomplish a specific task. The petitioner has not demonstrated 
that the beneficiary's subordinates actually supervise or control the work of other employees, such that they 
could be considered supervisors for purposes of section 101(a)(44)(A)(ii) of the Act. Nor has the petitioner 
claimed or established that the beneficiary's subordinates are employed in managerial or professional 
positions. 
Counsel 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 5 101(a)(44)(C) of the Act, 8 U.S.C. 3 1101(a)(44)(C). However, it is appropriate for CIS to consider the 
size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, 
e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the 
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this 
essential element of eligibility. 
The petitioner has failed to provide probative evidence to confirm the employment of the beneficiary's 
claimed subordinates. The beneficiary was last granted an extension of his L-1A status in 2001. The record 
shows that the petitioner paid no salaries or commissions in 2001, although the petitioner claims that the 
corporate secretary had been receiving a $1,000 monthly salary and bonuses since March 2001. In 2002, the 
petitioner paid only $7,500 in salaries, although it claimed to employ the corporate secretary all year and a 
purchasing employee beginning in October 2002. The petitioner submitted Forms 941, Employer's Quarterly 
Federal Tax Return, for the first three quarters of 2003, but these documents do not provide the names of the 
employees receiving wages. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). It is not 
possible to conclude from the totality of the evidence presented that the petitioner employs personnel to 
perform the operational and administrative tasks necessary to operate the company. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
executive or managerial capacity, as required by 8 C.F.R. 5 214.2(1)(3). 
Beyond the decision of the director, the record does not establish that the petitioner and the foreign entity 
currently have a qualifying relationship pursuant to 8 C.F.R. $ 214.2(1)(l)(ii)(G). The petitioner indicated on 
Form 1-129 that the U.S. company is a subsidiary of the foreign entity and that it is wholly owned and 
controlled by the beneficiary. In an accompanying cover letter dated December 4, 2003, former counsel 
indicated that the petitioner is the sole owner of the petitioning company. With respect to the foreign entity, 
counsel stated: "[The beneficiary] is the presidentlsole owner of the company and he holds 63% of the shares 
of the company." The petitioner also submitted the minutes of its first meeting of the board of directors dated 
WAC 04 046 53360 
Page 8 
August 15, 2000, which indicates that all of the petitioner's 100,000 authorized shares with par value of $1 .OO 
per share, were issued to the foreign entity. The petitioner's RS Forms 1120, U.S. Corporation Income Tax 
Return, for 2001 and 2002 indicate at Schedule E that the beneficiary owns 100 percent of the U.S. entity, and 
at Schedule K indicate the value of the company's stock as "$0." The petitioner has not submitted evidence to 
establish the ownership of the foreign entity. 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). Based on the conflicting documentation and statements, the 
AAO cannot conclude that the U.S. entity maintains a qualifying relationship with the foreign entity as 
required by 8 C.F.R. 8 214.2(1)(3)(i). For this additional reason, the petition will be denied. 
An application or petitioner 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 Sates, 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 for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has 
not been met. Accordingly, the decision of the director will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.