remanded L-1A Case: Industrial Distribution

w&ing data Meted ta 
prevent clearly unw~ted 
invasion of personal privacy 
pumc COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC0701451639 office: VERMONT SERVICE CENTER Date: FEB 2 2 2008 
and Nationality Act, 8 U.S.C. 4 1 101 (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. 
' e+ 
Ro ert P. emann, Chief 
Administrative Appeals Office 
EAC 07 014 51639 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the 
director's decision and remand the petition to the director for further action and entry of a new decision. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(l S)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. tj 1 lOl(a)(15)(L). The petitioner, an Ohio limited liability company, operates as a distributor of solid 
industrial tires and wheels manufactured overseas by its corporate group. The petitioner states that it is a 
subsidiary of Watts of Lydney Group, Ltd., located in Gloucestershire, United Kingdom. The petitioner seeks 
to employ the beneficiary as its managing directorlchief executive officer for a period of 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 asserts that the director 
erroneously denied the petition without seeking specific additional information, and failed to give appropriate 
weight and consideration to the petitioner's evidence. Counsel submits a brief and additional evidence in 
support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. tj 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 
EAC 07 014 51639 
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. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 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. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 8 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. 
EAC 07 014 51639 
Page 4 
The nonimmigrant petition was filed on October 19, 2006. In a letter dated October 10, 2006, the petitioner 
provided the following description of the beneficiary's proposed duties as managing director and chief 
executive officer of the U.S. company: 
In this position [the beneficiary] will have the direct responsibility over the management of 
all aspects of the business and will report directly to the parent company. These 
responsibilities will include formulating a detailed strategy for growth in conjunction with the 
parent company. He will allocate, oversee, and approve annual budget and its expenditures. 
The company's initial goal is to increase sales 100% by the end of 2007 and to add two 
additional distribution centers in the U.S. by the end of 2008. The beneficiary will have full 
responsibility for locating, hiring and agreeing on employment terms for appropriate sales 
and support staff to achieve this growth. He will have the authority to negotiate and to 
approve sales contracts up to $15m within our industry sector. His responsibility will also 
include identifying potential acquisitions in our business sector. 
[The beneficiary] will be responsible for business development, marketing of our services, 
and providing market models for implementation of market demands. He will lead and 
coordinate all regional marketing campaigns. Moreover, [the beneficiary] will be involved in 
the development of long-range plans to achieve the company's objectives for overall growth 
and profitability. 
The petitioner indicated on Form 1-129 that the U.S. company currently has five employees, but did not 
provide additional information regarding its organizational structure as of the date of filing. The petitioner 
submitted a proposed organizational chart for "2007-2008" which shows the beneficiary supervising two 
regional sales managers and a director. The chart shows that each area sales manager will supervise an area 
sales manager, while the director will supervise the Cleveland office administration manager, sales 
administration clerks, and warehouse operations. 
On December 5, 2006, the director issued a request for additional evidence. The director instructed the 
petitioner to submit: (1) complete position descriptions for the beneficiary's proposed subordinates, including 
a breakdown of the number of hours devoted to each of the subordinates' job duties on a weekly basis; (2) 
copies of educational credentials for the beneficiary's subordinates; and (3) copies of IRS Forms W-2 and 
payroll rosters for 2005. The director advised the petitioner that the evidence submitted did not establish that 
the beneficiary would function at a senior level in an organizational hierarchy, or that he would be involved in 
the supervision and control of supervisory, professional or managerial employees. 
In a response dated January 31, 2007, counsel for the petitioner referenced the statutory definitions of 
managerial and executive capacity, and provided the following description of the beneficiary's proposed 
duties: ' 
' Portions of the initial position description, already recited above, were repeated in counsel's letter and have 
been omitted here. 
EAC 07 014 51639 
Page 5 
[The beneficiary] will direct the management of [the petitioner] and will have direct 
responsibility over all aspects of the business and will report directly only to the Director of 
the parent company. 
As described in the original filing, [the beneficiary] will be functioning in an executive and 
managerial capacity. As an executive, he [will] manage and plan a detailed strategy for 
growth in conjunction with the parent Company and Board of Directors. He will function to 
provide vision and direction to the entire profit and sales of the US entity, to prepare a five 
year business plan, and to determine the distribution needs. He will allocate, oversee, and 
approve annual budget and its expenditures, with little or no supervision. 
[The beneficiary] will also function as a functionary manager for a temporary time period so 
that he may analyze, develop, and initiate marketing objectives with direct review and 
supervision over all sales professionals. He will direct the activities of sales personnel, 
determine hiring requirements and will have the authority to take personnel actions, such as 
the authority to hireheminate employees, promote, approve leave authorizations, and 
recommend salary and organizational changes. 
[The beneficiary] will be responsible for overseeing the Sales Managers and determine the 
effectiveness of the business development plan, marketing of company's services, and 
provision of market models for implementation of market demands. Moreover, he will 
establish goals, lead and coordinate all regional marketing campaigns, and will direct a team 
of sales representative[s] to achieve the company's objectives for overall growth and 
profitability. 
Counsel also referenced the beneficiary's previous positions within the petitioner's group, noting that he was 
stepping down as managing director of the international group in order to concentrate his responsibilities on 
the U.S. company following the unexpected death of the petitioner's director and business manager in 
September 2006. 
Counsel stated that the petitioner currently employs six individuals "and five of them deal directly with sales." 
Counsel indicated that their primary duties are "to interest buyers in company's merchandise and to address 
potential and current clients' questions and concerns." Counsel noted that the petitioner markets its products to 
manufacturers, wholesalers, construction contractors and other institutions. The following is a summary of 
information provided by counsel regarding the beneficiary's proposed subordinates: 
Bob Snyder - National Sales Manager (hired February 2004) 
Responsible for overseeing and evaluating assigned accounts and managing company's sales 
activities throughout the U.S. territory consisting of 20 states; develops sales and marketing 
EAC 07 014 51639 
Page 6 
strategy and provides ongoing training to marketing personnel. Devotes 60% of his time to 
guiding the growth and direction of company sales and 40% of his time traveling to and 
visiting with prospective buyers. 
- Area Sales Manager (hired January 8,2007) 
Responsible for mo~iitoring sales activities in 15 U.S. states. Devotes 75% of his time 
performing telephone sales work with potential customers and 25% of his time on traveling 
and face to face meetings and closing on these transactions. 
Responsible for planning and coordinating warehouse operations. He receives shipping and 
inventory and shipping orders (lo%), liaises with clients (30%), plans deliveries (35%), 
monitors and allocates storage space (20%), and makes sure supplies are stored correctly and 
in line with any relevant regulations (5%) 
- Accounting Manager (hired September 2005) 
monitoring daily accounting activities such as compiling sales reports and 
reviewing purchase orders (30%), computing credit terms and shipment charges (20%), 
recording invoices (20%), and verifying accuracy of billing data (30%). 
Responsible for analyzing sales statistics (lo%), preparing reports (15%) and handling 
administrative duties (75%), such as filing expense account reports, scheduling appointments, 
and making travel plans and reservations. 
Part-time employee responsible for assisting the administrative manager with invoices, filings 
and accounts, and for answering phones and daily mail activity. 
The petitioner indicated that its national sales manager and area sales manager each possess a bachelor's 
degree in business administration. The petitioner provided copies of its 2005 RS Forms W-2. The petitioner 
did not provide evidence of wa es aid to em loyees hired in 2006. In 2005, the petitioner paid $1 3,138.61 
to $2,062.50 to and $52,964.12 tr, and paid total wages of 
$1 76,677 to seven employees. 
The director denied the petition on March 1, 2007, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. The director acknowledged 
the position descriptions submitted for the beneficiary's proposed subordinates, but determined that the 
petitioner's "small distribution outfit" would not require workers with professional-level expertise to perform 
the proposed job duties. The director further noted that the beneficiary's offered salary of $50,000 is 
"incongruous with that of an employee who is actually managing other bona fide managers or professionals." 
The director concluded that the beneficiary would not supervise and control the work of other supervisory, 
EAC 07 014 51639 
Page 7 
professional or managerial employees who would relieve him from performing the services of the 
corporation. 
The director acknowledged that the petitioner "listed a number of duties that would normally be required of or 
associated with a manager or executive," but indicated that "this service is not convinced that the beneficiary 
will actually be carrying out these duties." The director concluded that the petitioning company does not 
require a bona fide manager or executive to perform the listed duties on a full-time basis. 
On appeal, counsel for the petitioner asserts that the director erroneously denied the petition without seeking 
additional specific information, particularly with respect to the beneficiary's salary. Counsel states that the 
beneficiary's total compensation package, including salary to be received from the foreign entity, would be 
approximately $1 80,000 annually, with $50,000 paid by the U.S. entity. 
Counsel further contends that the director failed to give appropriate weight and consideration to the 
petitioner's evidence and instead relied on conjecture when determining whether the beneficiary's 
subordinates would be employed as bona fide professionals. Finally, counsel emphasizes that the beneficiary 
will be employed as both a function manager, and as an executive, with responsibility for identifying and 
determining potential acquisitions for the company. Counsel provides a press release dated January 25, 2007 
announcing the purchase of a U.S. industnal tire business by the petitioner's group, and notes that the 
beneficiary was instrumental in the research, development of business objectives, and negotiations for the 
acquisition, reporting to only the Board of Directors of the parent company. 
The petitioner also submits a letter from the foreign entity's chairman, who confirms that only a portion of the 
beneficiary's salary would be paid in the United States, and further discusses the beneficiary's authority to 
pursue negotiations for potential acquisitions and contractually bind the company to multi-million dollar 
purchases and investments. 
Upon review, the AAO will withdraw the director's decision and remand the petition to the director for 
further action and entry of a new decision. 
The director's decision was largely based on conjecture and speculation with no explanation as to why the 
director concluded that the beneficiary and his subordinates would not actually perform the stated job duties. 
Furthermore, the director's determination that the beneficiary's salary is "incongruous" with an executive or 
managerial position is not supported by the statute and regulations, which neither require nor permit, a 
beneficiary's salary to be considered as a factor in determining the beneficiary's employment capacity. 
The AAO finds that the evidence of record does not directly reflect that the beneficiary is ineligible for the 
benefit sought. However, although the director issued a request for evidence in this matter, the AAO finds 
that additional evidence will be required in order to establish that the beneficiary would be employed in a 
primarily managerial or executive capacity. The petition will be remanded to the director, who is instructed to 
request additional evidence consistent with the discussion below. 
EAC 0701451639 
Page 8 
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. 5 214.2(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 position description provided for the beneficiary is vague and nonspecific and provides little 
understanding as to what duties the beneficiary would primarily perform on a day-to-day basis. For example, 
it is unclear what qualifying duties are included in the beneficiary's responsibility for "business development," 
marketing of services, providing market models, and leading and coordinating "regional marketing 
campaigns." Accordingly, the director is instructed to request that the petitioner provide a comprehensive, 
specific description of the duties performed by the beneficiary, including a breakdown of the percentage of 
time he will devote to those duties on a weekly basis, and a description of the duties he will perform on a 
"typical day," as of the date the petition was filed. If the petitioner indicates that the beneficiary "oversees," 
"supervises," "directs," "reviews" or "manages" an activity or function, the petitioner should clearly indicate 
who among its employees performs the routine duties associated with the particular activity or function. 
When examining the managerial or executive capacity of a beneficiary, United States Citizenship and 
Immigration Services (CIS) 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 number of hours 
worked by subordinate employees, and any other facts contributing to a complete understanding of a 
beneficiary's actual role in a business. 
The petitioner's staffing levels as of the date of filing cannot be determined based on the evidence submitted. 
As the petitioner's 2006 payroll records were never requested, the petitioner should be instructed to provide its 
IRS Forms 941, Employer's Quarterly Federal Tax Return, and state quarterly wage reports for the last two 
quarters of 2006. The AAO notes that two of the six employees identified in response to the request for 
evidence, were not employed by the petitioner in October 2006 when the petition was filed, and it is unclear 
whether they were hired to replace other workers. 
Moreover, although counsel for the petitioner indicated that five of its six employees "deal directly with 
sales," based on the evidence provided, the company only had one sales employee, the national sales manager, 
as of the date the petition was filed and this discrepancy should be clarified. The petitioner should also be 
instructed to provide more detailed position descriptions for its claimed professional sales employees. The 
AAO recognizes that the petitioner's industry is quite specialized, but it is unclear that the "telephone sales 
work" that occupies the majority of the area sales manager's time actually requires a bachelor's degree in 
business administration. In addition, the position description for the national sales manager referred to his 
responsibility for training "marketing personnel," but the petitioner does not appear to employ marketing 
employees. 
It is emphasized that the petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Evidence and explanation that the petitioner submits must show eligibility as of the filing date, October 19, 
EAC07 01451639 
Page 9 
2006. Documentation of business activity and hiring that occurred after the date of filing is not probative of 
the petitioner's and beneficiary's eligibility and will not be considered. The AAO notes that the beneficiary's 
proposed duties would include hiring additional employees in the future; however, the petitioner must 
establish that the beneficiary's actual duties as of the date the petition was filed were primarily managerial or 
executive in nature. 
In this matter, the evidence of record is insufficient to establish the beneficiary's and petitioner's eligibility. 
Further evidence is required in order to establish that the beneficiary meets the requirements for L-1A 
classification as of the date of filing the petition. The director's decision will be withdrawn and the matter 
remanded for further consideration and a new decision. The director is instructed to issue a request for evidence 
addressing the issues discussed above, and any other evidence he deems necessary. 
ORDER: 
 The decision of the director dated March 1,2007 is withdrawn. The matter is remanded 
for further action and consideration consistent with the above discussion and entry of a 
new decision.