dismissed L-1A Case: Wholesale Trade

identifving data deleted to 
prevent dearly unwamknted 
Zrnarhoofpersollalmhsey 
U.S. Department of Homeland Security 
20 Mascachusett\ A\c N W , Rm AWJZ 
Ws\li~ngto~i. LIC 20529 
U.S. Citizenship 
and Immigration 
_.&.C-- '-"'S., 
12 
Flle: WAC 04 046 53360 Office: CALIFORNIA SERVICE CENTER Date: ( 8 
IN RE: Petitloner: 
Benefic~ary: 
Petition: petition for a Nonirnmigrant Worker Pursuant to Sectlon 101(a)(15)(L) of the immigration 
and Nationahty Act, 8 U.S.C. 5 1 101 (a)(] 5)(L) 
TN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This 1s the decision of the Admlnlstratlve Appeals Office in your case. All documents have becn returned to 
the office that ortg~nally decided your case. Any further inquiry must be made to that office 
9 
Admlnistrat~ve Appeals Office 
WAC 04 046 53360 
Page 2 
D1SCL;SSION: 'The Director, Cahfomia Servrce Center, denled the petltion for a nonlmmigrant visa. The 
mattcr 1s now before the Adminlstratlve Appeals Office (AAO) on appeal The AAO will d~smlss the appeal. 
The petlt~oner tiled thls nonimmlgrant pet~tlon seeklng to extend the employment of its president ac an L-I A 
nonlmmlgrant lntracompany transferee pursuant to section lOl(a)(lS)(L) of the Immigrat~on and Nattonallty 
Act (the Act), 8 U S.C. 4 1101(a)(15)(L). The petrtloner 1s 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 o 1 located in Inche'on, Korea. The beneficiary was inrtially 
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 petltloner subsequently filed an appeal. The d~rector declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for revlew. On appeal, counsel for the petitioner dlsputes the director's 
clalm that the beneficlary IS merely a first-hne supervisor and asserts that the beneficiary IS employed in a 
"managenaVexecut~ve" capac~ty 
To establ~sh el~glb~lity for the L-1 nonrmmiyant vlsa classification, the petrt~oner must meet the crlteria 
outl~ned in sectton 101(a)(15)(L) of the Act. Specrfically, a qualify~ng organlzatton must have employed the 
beneficlary in a qualifying managerlal or executive capacrty, or rn a specialized knowledge capac~ty, for one 
contlnuous year wrthln three years preceding the beneficiary's application for admission into the Un~ted 
States. In addrt~on, the benefic~ary must seek to enter the United States temporarily to contlnue rendering h~s 
or her servlces to the same employer or a subsidiary or affihate thereof In a manager~al, executive, or 
specialized knowledge capacity. 
The regulat~on at 8 C.F.R. 3 214.2(1)(3) states that an ~ndiv~dual petit~on filed on Form 1-129 shall be 
accompanied by: 
(1) Evidence that the petltloner and the organization which employed or will employ the 
alten are qual~fylng organizatrons as defined In paragraph (1)(1)(1i)(G) of this sectron. 
(11) Evidence that the alien will be employed In an executive, managerial, or specialized 
knowledge capacrty, ~ncludrng a detalled descr~ption of the servrces to be performed. 
(111) Ev~dence that the allen has at least one contlnuous year of full time employment 
abroad wlth a quallfylng organizat~on wlthln the three years preceding the fillng of 
the petrtlon. 
(IV) Evidence that the allen's prior year of employment abroad was in a positlon that was 
managerlal, executive or mvolved specrahzed knowledge and that the ahen's prlor 
WAC 04 046 53360 
Page 3 
education, traln~ng, and employment qual~fies hrmhcr to perform the rntended 
sewices in the Un~ted States; however, the work In the Un~ted States need not be the 
same work whlch the allen performed abroad. 
At Issue m the present matter is whether the beneficiary wlll be employed by the Un~ted States entity in a 
primar~ly managerla1 or executive capacity. 
Sect~on 10 1 (a)(44)(A) of the Act, 8 U.S.C. 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment w~th~n an organlzatlon in whlch the employee pnmanly: 
(I) manages the organrzatlon, or a department, subd~vislon, funct~on, or component of 
the organlzatlon; 
(11) supervises and controls the work of other supervisory, profess~onal, or managerial 
employees, or manages an essent~al funct~on within the organizat~on, or a department 
or subdivision of the organ~zation; 
(111) I€ another employee or other employees are d~rectly supemlsed, has the authority to 
h~re and fire or recommend those as well as other personnel acttons (such as 
promot~on and leave authorization), or ~f no other employee IS d~rectly supewlsed, 
funct~ons at a senlor level w~thln the organlzat~onal h~erarchy or with respect to the 
function managed: and 
(IV) exercises d~scretlon over the day to day operations of the activlty or function for 
whlch the employee has authority. A first lrne supervisor is not considered to be 
actrng In a managenal capac~ty merely by vlrtue of the supem~sor's superv~sory 
duties unless the employees supervised are profess~onal. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 4 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment w~thin an organization in which the employee pnmarlly: 
(I) d~rects the management of the organ~zatlon or a major component or functlon of the 
organization; 
(11) establishes the goals and policles of the organrzatlon, component, or functton; 
(111) exercises wlde latrtude In discretronary decision mak~ng; and 
(IV) recelves only general supervlslon or d~rection from higher level execut~ves, the board 
of directors, or stockholders of the organlzatlon. 
In a November 25, 2003 letter submitted In support of the mit~al pet~tion, the pet~tioner ~ndlcated that as 
president, the beneticlary w~ll exerclse wlde latltude In dlscret~onary decision making, formulate short-term 
WAC 04 046 53360 
Page 4 
and long-term goals, establish and implement pollcies and h~re, fire and promote employees. The petitloner 
lndlcatcd on Form 1-129 that it employed three individuals at the t~me the petitlon was filed 
In support of the petition, the petltioner provided an organ~zational chart showlng the beneficiary as 
"president & branch manager" supervising a corporate secretary, who in turn supervlses a "purchasrng and 
export admlnistrator." [n an attached statement, the petlt~oner provided brlef job descript~ons for thc 
beneficiary and his subordinates: 
President and Branch Manager -- Responsibrl~tles Include managing entlre U.S. branch office 
operation and develop new business opportunities. Also responsible for formulating both 
short term and long term goals and will contlnue to establish and implement policles of the 
company. 
Corporation Secretary - Responslbilitles include financial management and price negotiation 
with vendors. Has final authority to establ~sh purchas~ng and selling prices. Report directly to 
the president. 
Purchasing and Export Administrator - Respons~billties Include search and obtalnlng 
potentlal source of supply, price negotlatlon and Issuing purchase orders. Also responsible for 
handling of import and export transact~ons. Inltiate new business projects under direct order 
and supervis~on from the president. 
The petitioner provided the date of hire, salary and eduicational background for each employee, notlng that the 
corporation secretary has a bachelor's degree in aerospace engineenng and the purchasing and export 
admlnistrator has a bachelor's degree in Chlnese literature and a master's degree in speech communication. 
On March 29,2004, the director requested additional evidence. In part, the dlrector instructed the petitloner to 
submit. (I) an organizational chart for the U.S. company clearly llstlng all employees under the benefic~ary's 
supervision, and lnclud~ng a brief descnptlon of job dutles, educational level, annual salaries wages and 
imm~gration 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 secunty numbers, beginning and end date of 
employment, wages per week, and ahen reglstratlon numbers and immigration status for any non-U S. cit~zen 
employees; and (3) a detalled descrlptlon of the beneficiary's dutles in the U.S and the percentage of hme he 
spends on each of the listed duties. 
In a reply dated June 16, 2004, the petltioner submitted a revised organizational chart showing that the 
beneficiary directly supervlses the corporate secretary, purchasing and export administrator, and a "product 
support" employee as of Apnl 2004 The petltioner attached a statement tltled "Llst of Current Employees" 
which provides brief job descriptions for the beneficiary's subordinates Identical to those subm~tted w~th the 
inlt~al petition. The pctltioner also included a job descnptlon for the product support employee hired In 
January 2004, ~ndlcating that he arranges shipping and advlses customers of order status and schedule. The 
petitioner noted that the corporate secretary, who prev~ously recelved a $1,000 monthly salary and bonus, 
began worklng on commission only as of January 2004. 
WAC 04 046 53360 
Pagc 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 malntaln dally business operation (40%) 
[dentlfy and revrew new products for posslble export to Korea market (20%) 
Contact n~anufacturers and dlstnbutors for a poss~ble drstnbut~on nght to and from Korea 
(10%) 
Manage and malntaln customer's relatlonshlp at executlve levels (20%) 
Revlew sales project, business plan and estabhsh the buslness dlrect~on for the U S. operat~on 
(1 0%) 
On July 20, 2004, the director denied the petitlon conclud~ng that the benefic~ary would not be employed In a 
managerla1 or executlve capacity under the extended pet~tlon Specifically, the dlrector found that the 
petltloner did not demonstrate that the benefic~ary would manage a subordinate staff of profess~onal, 
I 
managerlal or supervisory personnel who would rel~eve the benefictary from perfom~ng non-quallfy~ng 
dutles. The d~rector concluded that the benefic~ary 1s performing as a first-line supervisor of non-professional 
employees, rather than as a manager or executtve. 
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'sc:subordinates utilize "industry resources" to carry 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 distnbution 
utilizing industry resources as opposed to an industry that utilizes its internal uses.for all transaction." Finally, 
counsel. provides a nire 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 mafketing; 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 descriptjon 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 classitication.as a 
managerial or executive position. Matter ofMicheIin ~ire'~or~.. 17 I&N Dec. 248, 249 (Reg. Cornm. 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).   here fore, the 
analysts 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 executlve or managerial capacity of the beneficlary, the AAO wlll look first to the 
pctltloner's descr~ptlon of the job duties. See 8 C F.R. 5 214 2(1)(3)(11). The petitioner's description ot the job 
dut~es must clearly descrlbe the duties to be performed by the bencficlary and ~nd~cate whether such duties are 
e~ther in an executlve or managerlal capacity. Id. The petitioner does not clanfy whether the bcneficlary IS 
claimlng to be primarily engaged In managerlal dutles under sectlon IOl(a)(44)(A) of the Act, or prtmarily 
executive duties under section 101(a)(44)(B) of the Act. A beneficlary may not claim to be employed as a 
hybrid "executive/manager" and rely on partial sectlons of the two statutory definitions. At a minlmum, the 
petitloner must demonstrate that the beneficlary's rcsponsibll~t~es will meet the requrrements of one or the 
other capac~ty. 
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. 
$9.1 101 (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. Fedir~ 
Bros. Cu. Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 4 1 (2d. Cir. 19.90); Avr 
Associates Inc. v. Meissrier, 1997 WL 188942 at *5 (S.D.N.Y.). . . 
The job duties described in the petitioner's response to the director's reque'st 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 nlaintaln 
customer's relationship at the executive levels." Without further explanation. these duties, which require 50 
percent of the beneficiary's time, cannot be distinguished from non-qualifying market and product research, 
sales, and customer service tasks. Going on record without supporting documentary eiriclence 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 Treusure Cruft of Cal~furnia, 14 I&N Dec. 190 (Reg. Comm. 1972)). The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co. ,Ltd 1). Sava, 724 F. Supp. 
at 1 108. 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 petltloner has not demonstrated that the beneficiary will 
primarily supervise a subordrnate staff of professional, managerial, or supervisory personnel who can relieve 
h~m from perfonnlng non-qualifying dutles. See sect~on 101(a)(44)(A)(ii) of the Act. At the t~me of filing, the 
petltloner claimed to employ a corporate secretary and a purchasing and export admlnlstrator whose dutles 
have only been vaguely defined Counsel clalms that the beneficlary's subordinates are supervisors because 
they work with "industry sources" such as log~stlcs companies In order to carry out the~r job functions 
However, a d~stlnct~on must be made between supervising the work of subordinate employees and contracting 
W.4C 04 046 53360 
Page 7 
the servlces of outslde servlce providers to accompl~sh a spec~fic task. The petlt~oncr has not demonstrated 
that the beneficlary's subordlnates actually supervise or control the work of other employees, such that they 
could be cons~dered supervisors for purposes of sectlon 101(a)(44)(A)(11) of the Act. Nor has the pehtloner 
clalmed or establlshed that the beneficlary's subordlnates are employed m managerlal or profess~onal 
pos~tlons. 
Counsel correctly observes that a company's slze alone, wlthout taklng Into account the reasonable needs of 
the organlzatlon, may not be the determ~ning factor ln denylng a vlsa to a multlnatlonal manager or executtve. 
See 9 101(a)(44)(C) of the Act, 8 U.S.C. 5 1101(a)(44)(C). However, it is appropriate for CIS to conslder the 
size of the petit~oning company In conjunction wtth other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-manager~al or non-executive operations 
of the company, or a "shell company" that does not conduct busmess In a regular and contmuous manner. See, 
e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The slze of a company may be especially 
relevant when CIS notes discrepancies m the record and falls to belleve that the facts asserted are true. Id 
Regardless, the reasonable needs of the petltloner serve only as a factor In evaluahng the lack of staff In the 
context of revtewlng the clalmed managenal or executlve dutles. The petttloner must stdl estab11sh that the 
beneficlay is to be employed In the Unlted States in a pr~marily managenal or executive capaclty, pursuant to 
sect~ons 101(a)(44)(A) and (B) or the Act. As discussed above, the petit~oner has not establlshed thls 
essential element of el~glbility. 
The petlt~oner has fatled to provlde probative evldence to confinn the employment of the beneficlary's 
cla~med subordlnates. The benefic~ary was last granted an extension of h~s L-1A status In 2001. The record 
shows that the petltloner pald no salanes or commlsslons in 2001, although the petitloner clalrns that the 
corporate secretary had been recelvlng a $1,000 monthly salary and bonuses slnce March 200 1. In 2002, the 
petltloner pald only $7,500 In salanes, although ~t clalmed to employ the corporate secretary all year and a 
purchasing employee beglnnlng In October 2002. The petltloner submitted Fonns 941, Employer's Quarterly 
Federal Tax Return, for the first three quarters of 2003, but these documents do not provrde the names of the 
employees recervlng wages. Golng on record w~thout supporting documentary evldence 1s not sufficient for 
purposes of meetlng the burden of proof In these proceedings. Matter of Sofficr, 22 I&N Dec. 158, 165 
(Comm. 1998) (cltlng Matter of Treasure Craft of Calforn~a, I4 I&N Dec. 190 (Reg. Comm. 1972)). It 1s not 
posslble to conclude from the totality of the evldence presented that the petlt~oner employs personnel to 
perform the operat~onal and admmlstrat~ve tasks necessary to operate the company. 
Based on the foregomg, the petitioner has not established that the beneficiary will be employed In a pr~marrly 
executlve or managerlal capaclty, as requlred by 8 C.F.R. tj 214.2(1)(3). 
Beyond the declslon of the d~rector, the record does not establish that the petltloner and the forelgn ent~ty 
currently have a qual~fylng relat~onshlp pursuant to 8 C.F.R. 214.2(1)(1)(11)(G). The pehtioner lnd~cated on 
Form 1-129 that the U.S. company IS a subsldrary of the forelgn entlty and that it 1s wholly owned and 
controlled by the benefictary. In an accompanying cover letter dated December 4, 2003, former counsel 
lndlcated that the petltloner IS the sole owner of the pet~t~onlng company. With respect to the forelgn ent~ty, 
counsel stated. "[The beneficiary] 1s the presldent/sole owner of the company and he holds 63% of the shares 
of the company." The petitloner also submitted the mrnutcs of its first meetlng of the board of directors dated 
WAC 04 046 53360 
Page 8 
August 15, 2000, which indicates that all of thc petitioner's 100,000 authorized shares with par value of $1 .OO 
per share, were issued to the foreign entity. The petitioner's IRS 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 ''SO.'.' The petitioner has not submitted evidence to 
establish the ownership bf 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 
qfHo, 19 I&N Dec. 582, 591-92 (BL4 1988). Based on the conflicting documentation and,statements, the 
AAO cannot concl~ide that the U.S. entity maintains a qualifying relationship with the foreign entity as 
required by 8 C.F.R. 5 214.2(1)(3)(i). For this additional reason, the petition will be denied. 
. . 
An application or petitioner that falls to comply wlth the techn~cal requirements of the law may be denled by 
the AAO even ~f the Service Center does not ldentlfy all of the grounds for den~al tn the ln~tlal decls~on. See 
Spencer Enlerprises, Znc v United Sates, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001). aff'd 345 F.3d 683 
(91h Clr. 2003); see also Dor v. INS, 891 F.2d 997. 1002 n. 9 (2d Clr. 1989)(notlng that the AAO revlews 
appeals on a de novo basls). 
The petltion will be denled for the above stated reasons, wlth each considered as an independent and 
alternative bass for denlal. In vlsa petltion proceedings, the burden of provlng el~glb~llty for the benefit 
sought remains entlrely wlth the petltloner. Sect~on 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. Accordmgly, the declsion of the dlrector will be affirmed and the petltion wlll be denled. 
ORDER: The appeal is dismissed.