remanded L-1A Case: Automotive Parts

(b)(6)
DATE: MAY 1 6 2014 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: CALIFORNIA SERVICE CENTER FILE: 
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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non­
precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. 
All of the documents related to this matter have been returned to the office that originally decided your 
case. Please be advised that any further inquiry that you might have concerning your case must be made to 
that office. 
Thank you, 
www.uscis.gov 
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DISCUSSION: The Director, California Service Center, revoked the approval of the nonimmigrant 
visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO 
will withdraw the director's decision and remand the matter to the director for further action and 
issuance of a new decision. 
The petitioner filed this nonimmigrant petitiOn seeking to classify the beneficiary as an L-lA 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a California corporation established in 2008 
that is engaged in the retail sale and wholesale distribution of automobile parts. The petitioner states 
that it is a wholly owned subsidiary of Ltd., located in 
China. The petitioner seeks to employ the beneficiary as the president of a "new office" in the 
United States for a period of one year. 
The petition was initially approved for a period of one year. Subsequently, the director issued a 
notice of intent to revoke (NOIR) the approval upon receiving information from the United States 
Consulate in Shanghai that the beneficiary has no English reading or speaking skills. The director 
stated that this information cast 
doubt on whether the beneficiary could perform the duties assigned 
to her as president of the U.S. office. The director also noted that the lease submitted by the 
petitioner had expired and that documentation submitted at the beneficiary's visa interview m 
Shanghai revealed that the petitioner had only one employee earning less than $11,000 per year. 
In response, the petitioner stated that the beneficiary's subordinate in the United States, Chief 
Operating Officer (COO) , is fluent in English and Chinese and that he would take 
direction from the beneficiary. The petitioner asserted that fluency in English is not required for a 
beneficiary to act in a qualifying executive capacity, and also addressed the director's concerns 
regarding its lease and the salaries of its employees. 
The director revoked the approval of the petition on March 25, 2010. The director stated that the 
petitioner's response to the NOIR was not persuasive in establishing that the beneficiary would act 
in a qualifying managerial or executive capacity in the United States. The director explained that the 
petitioner had failed to articulate how the beneficiary would perform the duties of the position, 
including interpreting applicable U.S. laws, resolving labor issues and directing advertising and 
public 
relations, without fluency in English. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel contends that the director misunderstood the 
beneficiary's stated job duties. Counsel explains that the beneficiary would not be required to 
understand U.S. corporate, tax, labor and import and export laws pursuant to her executive position. 
Counsel states that the beneficiary, much like other U.S. based executives, would consult 
professionals and accountants with respect to the application of U.S. laws to the business. Counsel 
asserts that the director arbitrarily and capriciously revoked the petition's approval based only upon 
the beneficiary lack of English language ability, noting that this ability is not required to qualify as a 
manager or executive pursuant to the regulations. Counsel states that the director failed to consider 
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(b)(6)
NON-PRECEDENT DECISION 
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that the beneficiary's subordinate COO is fluent in English and he can translate, communicate and 
handle matters requiring knowledge of the English language under the direction of the beneficiary. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the 
criteria outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must 
have employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. In addition, the beneficiary must seek to enter the 
United States temporarily to continue rendering his or her services to the same employer or a 
subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v) 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 the new 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 involved 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)(l)(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. 
Under USCIS regulations, the approval of an L-lA petition may be revoked on notice under six 
specific circumstances. 8 C.F.R. § 214.2(1)(9)(iii)(A). To properly revoke the approval of a petition, 
the director must issue a notice of intent to revoke that contains a detailed statement of the grounds 
for the revocation and the time period allowed for rebuttal. 8 C.F.R. § 214.2(1)(9)(iii)(B). 
Upon review of the petition, evidence, the director's notice of revocation and counsel's assertions on 
appeal, the AAO will withdraw the director's decision to revoke the approval and remand the matter 
to the director for further action and issuance of a new decision. The director has based her decision 
(b)(6)
NON-PRECEDENT DECISION 
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solely upon the beneficiary's lack of fluency in English. While the regulations require the petitioner to 
establish that the beneficiary's prior education, training and employment qualify her to perform the 
intended services in the United States, a review of the record reflects that the petitioner did not claim 
that the beneficiary is fluent in English or that English fluency is a requirement for the offered position. 
Although the director's decision will be withdrawn, the record as presently constituted contains 
insufficient evidence to warrant a conclusion that the beneficiary has been employed abroad, and 
will be employed in the United States after one year, in a qualifying managerial or executive 
capacity. The AAO maintains authority to review each appeal on a de novo basis. Soltane v. DOl, 
381 F.3d 143, 145 (3d Cir. 2004). Accordingly, the petition will be remanded to the director for 
further review and action consistent with the discussion below. 
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; 
(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. § 1101(a)(44)(B), defines the term "executive capacity" 
as an assignment within an organization in which the employee primarily: 
(ii) directs the management of the organization or a major component or 
function of the organization; 
(iii) establishes the goals and policies of the organization, component, or 
function; 
(iv) exercises wide latitude in discretionary decision-making; and 
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NON-PRECEDENT DECISION 
(v) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
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.P.R. § 214.2(1)(3)(ii). USCIS reviews the 
totality of the record, including descriptions of a beneficiary's duties and those of his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual 
role in a business. 
The petitioner stated that the beneficiary had twenty three years of experience as an accountant and 
that she began work for the foreign entity in 2003 as the vice president of administration. The 
petitioner indicated that the beneficiary directed and facilitated the activities of two departments, the 
supply/purchasing department and the sales and distribution department. 
The beneficiary 's foreign job description is insufficient as it fails to provide specific details 
regarding her day-to-day tasks. For instance, the petitioner states that the beneficiary "directs 
production planning to match company needs," "sets forth sales objectives and sales operations plans 
in accordance with the overall company objective," "gather[s] necessary market research reports 
required for proper planning," "directs all after-sales activity in terms of customer service and 
customer relations management as well as building relationships with major distribution channels," 
and "directs product pricing and all sales operation policies." However, in each case, the petitioner 
has not specifically described or documented the day-to-day tasks that make up these broadly­
described duties, nor provided sufficient detail or documentation to corroborate the production she 
planned, objectives she set, market research reports completed under her direction, the type of 
customer service and relations she managed, relationships she built with distributors, or the policies 
she implemented. It is reasonable to expect that the petitioner would provide some specifics as to 
the beneficiary's specific managerial or executive decisions or accomplishments abroad, particularly 
since she is asserted to have worked in this capacity since 2003. The listed duties could apply to any 
executive or manager with any company, in any industry and thus offer little insight into the 
beneficiary's actual duties with the foreign company. Specifics are clearly an important indication 
of whether a beneficiary's duties are primarily executive or managerial in nature. 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, the submitted evidence of the foreign entity's organizational structure contains numerous 
discrepancies with respect to the beneficiary's job title, the titles of her subordinates and her position 
within the company's hierarchy. For example, the petitioner has provided inconsistent statements 
with respect to the beneficiary's foreign employment indicating that the beneficiary was employed 
as the vice president of administration at various places in the record, but elsewhere states that the 
beneficiary was in charge of the "commercial department." Further, another listing of employees 
refers to the beneficiary as simply as "manager" and the beneficiary's twelve subordinates are 
"ordinary" employees, leaving question that the beneficiary acts as more than a first line supervisor 
(b)(6)
NON-PRECEDENT DECISION 
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of non-professional employees. A managerial or executive employee must have authority over day­
to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised 
employees are professional s. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm'r 1988). 
Additionally, while the petitiOner has described the beneficiary as the "vice president of 
administration ," one organizational chart shows that she reported to a "vice general manager" and 
shows another employee responsible for the administration department. 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). In sum, the preceding unresolved inconsistencies leave question as to the 
beneficiary's actual job title, level of authority, and duties with the foreign entity. 
In addition, the petitioner has also not submitted sufficient evidence to establish that the beneficiary 
will act in a qualifying managerial or executive capacity in the United States after one year. 
Similar to the beneficiary's foreign duties, the petitioner has submitted a vague position description 
that fails to explain the nature of beneficiary's proposed day-to-day tasks in the United States. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course 
of his daily routine. The actual duties themselves will reveal the true nature of the employment. 
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). For instance, the petitioner provides no specifics, details or supporting documentation 
regarding the company 's proposed policies, objectives, or procedures for which the beneficiary is 
stated to be responsible. Indeed, much like the beneficiary's foreign duties, the beneficiary's 
proposed duties in the United States could apply to any executive or manager working in any 
company or industry. Although the duty description suggests that the beneficiary will possess the 
appropriate level of authority to initiate the new company's operations, the petitioner has not met its 
burden to provide a detailed description of her actual proposed duties. 
Although the director's decision will be withdrawn, the evidence of record as presently constituted 
does not establish the beneficiary's eligibility for the benefit sought. Accordingly, the AAO will 
remand this matter to the director for issuance of a new notice of intent to revoke and entry of a new 
decision. 
ORDER: The director's decision is withdrawn. The petition is remanded to the 
director for further action in accordance with the foregoing discussion and 
entry of a new decision which, if adverse, shall be certified to the 
Administrative Appeals Office for review.