remanded L-1A Case: Semiconductors

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington. DC 20529 
ided@@ data dele(ed (u 
prevent ckarly unwarradpd U. S. Citizenship 
;nd011 of W- ,- and Immigration 
PUBLIC COW 
File: WAC-04- 153-501 60 Office: CALIFORNIA SERVICE CENTER Date: JUL Z 0 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 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. 
Robert P. Wiemann, Director 
yAdministrafire Appeals Omce 
WAC-04-153-50 160 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AGO) on appeal. The director's decision will be 
withdrawn and the matter remanded for further c~~nsideration and a new decision. 
The petitioner filed this nonimmigrant petition sceking to extend the employment of its President as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 8 1 lOl(a)(15)(L). The petitioner is a corporation organized in the State of California 
semiconductors for export to Japan. The petitioner claims that it is the branch' 
located in Tokyo, Japan. The beneficiary was initially approved for L-1A status 
in the United States, and the petitioner now seeks to extend the beneficiary's stay. 
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 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 beneficiary 
is eligible for L-IA classification and the petition should be approved. In support of this assertion, counsel 
submits a brief and documentation previously enl.ered into the record of proceeding. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10I(a)(l5)(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 beneticiary'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 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. 5 I I Ol(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; 
' The petitioner indicated on Form 1-129 that it is a branch of the foreign entity. However, the petitioner's 
supporting documentation reflects that the foreign entity owns 100 percent of the petitioner's stock. 
Accordingly, the petitioner is a subsidiary of the foreign entity. See 8 C.F.R. § 214.2(1)(1)(ii)(K). 
WAC-04-1 53-501 60 
Page 3 
(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 supgrvisor 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 1 lOl(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 letter submitted with the initial petition on May 5, 2004, the petitioner described the beneficiary's job 
duties as follows: 
Since 1999, [the beneficiary] has been President exercising executive functions. [The 
beneficiary] has directly supervised and educated Petitioner's four employees. In addition, in 
acting as a liaison with the US associated companies, [the beneficiary] makes regular contacts 
with those companies and product recl~mmendations as well as future prospects of new 
technological products to customers. [The beneficiary's] duties also include directing 
advertisements, marketing, and internal and external presentations introducing new featured 
products and general services offered by Petitioner. More specifically, [the beneficiary] 
exercises his discretionary authority as President in managing customer relations on behalf of 
Petitioner in that he lnakcs decisions a. to which new business solution identified through 
discussions with customers and the sales staff should be implemented, as well as in hiring and 
firing Petitioner's employees. Furthertnore, [the beneficiary's] day-to-day duties include 
meeting with various vendors and prospective customers inside and outside of the office, 
formulating short and long term goals of the company, devising business strategies, attending 
trade shows, and overseeing and managing issues pertaining to the company's finances and 
marketing. In playing an informational role to [the foreign entity] in Tokyo, [the beneficiary1 
WAC-04- 153-50 160 
Page 4 
sits as an integral intermediary for purposes of business communications between [the foreign 
entity] and the US associated companies. 
The petitioner submitted an organizational chart that reflects that it employs four individuals including the 
beneficiary, and it utilizes the services of outside companies. The petitioner provided copies of its IRS Form 
941, Employer's Quarterly Tax Return, and California Form DE-6 for the fourth quarter of 2003 that show 
that it employed the beneficiary and one other individual during the covered period. The petitioner submitted 
a Michigan State quarterly report for the fourth quarter of 2003 that shows that it employed a third individual 
during the covered period. 
On May 12, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. The director noted that no employees k~ave been identified for two of the four departments under the 
supervision of the beneficiary. The director stated that "[ilt appears from the U.S. organizational chart and 
from the duties described that the beneficiary has been and will continue to be performing practically all of 
the day-to-day operations of the business." The director further stated that "[tlhe information provided by the 
petitioner describes the beneficiary's duties only in broad and general terms. There is insufficient detail 
regarding the actual duties to be performed by rhe beneficiary, and the percentage of time devoted to these 
duties." The director found that "[tlhe petitioner has not shown that the beneficiary would be functioning at a 
senior level within an organizational hierarchy. Further, the petitioner's evidence is not persuasive in 
establishing that the beneficiary will be managing a subordinate staff of professional, managerial, or 
supervisory personnel who relieve him from performing non-qualifying duties." 
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a managerial and 
executive capacity. In a brief, counsel discusses the beneficiary's duties and accomplishments with the 
petitioner. Counsel asserts that the beneficiary "manages at least three major, essential and critical functions 
(strategic planning, marketing and customer relarions) of [the petitioner]." Counsel states that the beneficiary 
"functions at a very senior level with regard to the functions he manages and exercises executive direction 
over all of Petitioner's vital functions." Counsel adds that the beneficiary has authority over the petitioner's 
hiring and firing. Counsel states that the petitioner's stat'fing should only be used as a basis for the director's 
decision if considered in light of the petitioner's reasonable needs and stage of development. Counsel asserts 
that "present staffing levels are entirely reasonable at the [petitioner's] present stage of development and are 
not a proper basis for denial of the Petition." C'ounsel further asserts that the beneficiary is not required to 
supervise other personnel where he manages an essential function. Counsel states that the beneficiary does 
not perform the tasks necessary to produce the petitioner's products or provide the petitioner's services. 
Counsel asserts that the director's conclusions regarding the beneficiary's role and duties are unsupported by 
facts contained in the record of proceeding, anti that the petitioner has submitted a detailed account of the 
beneficiary's duties. 
Upon review, the director's decision will be withdrawn and the matter remanded for further consideration and 
a new decision. 
The regulation at 8 C.F.R. (i 214.2(1)(14)(i) states the following: 
WAC-04- 153-50 160 
Page 5 
The petitioner shall file a petition extension on Form 1-129 to extend an individual petition 
under section 1 01 (a)( 15)(L) of the Act Except in those petitions involving new offices, 
supporting documentation is not required, unless requested by the director. 
The regulation at 8 C.F.R. 5 103.2(b)(8) states the following: 
If there is evidence of ineligibility in the record, an application or petition shall be denied on 
that basis notwithstanding any lack of required initial evidence . . . . [I]n other instances 
where there is no evidence of ineligibility, and initial evidence or eligibility information is 
missing or the Service finds that the evidence submitted either does not fully establish 
eligibility for the requested benefit or raises underlying questions regarding eligibility, the 
Service shall request the missing initial evidence, and may request additional evidence . . . . 
As the present petition is a request for an extension of the beneficiary's L-IA status, and it does not involve 
the opening of a new office, the petitioner was not required to submit supporting documentation. 8 C.F.R. 
5 214.2(1)(14)(i). However, the petitioner provided numerous items of evidence with Form 1-129. The 
director examined the petitioner's evidence and determined that the petitioner failed to establish eligibility. 
The director's decision was based on a finding thiit the petitioner did not submit sufficient documentation. For 
example, the director noted that the beneficiary's job description does not include adequate detail, and that the 
petitioner did not show that each its four departments employ staff members. The director further observed 
that the record does not establish that the ben,uficiaryls subordinates will be professional, managerial, or 
supervisory personnel, or that they will relieve the beneticiary from performing non-qualifying duties. The 
director did not point to any clear evidence of ineligibility in the petitioner's documentation, but rather found 
that the documentation was inadequate to fully establish eligibility. 
As the director did not find direct evidence of ineligibility in the record, the director should not have denied 
the petition based on a lack of evidence without first requesting additional explanation and documentation. 
See 8 C.F.R. Ej 103.2(b)(8); 8 C.F.R. Ij 214.2(1)1:14)(i). The AAO agrees that the evidence of record raises 
underlying questions regarding eligibility. In such an instance, the director "shall request the missing initial 
evidence, and may request additional evidence . . . ." 8 C.F.R. $ 103.2(b)(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. Ej 2 14.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be perfclrmed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the 
beneficiary is primarily employed in a managt:rial or executive capacity. As noted by the director, the 
beneficiary's job description does not clearly sthow that he will be employed in a primarily managerial or 
executive capacity. While the petitioner has described the beneficiary's duties and authority in general terms, 
the job description does not show what actual tasks the beneficiary will perform on a daily basis. The 
petitioner should provide more detail regarding how the beneficiary will spend his time, including a 
breakdown of the percentage of his weekly hours that will be devoted to his various duties. 
WAC-04- 153-50 160 
Page 6 
By way of example, general statements such as "the beneficiary will spend 20 percent of his time on financial 
matters" are not suff~cient. The petitioner should explain in detail what financial documents the beneficiary 
prepares, whether and how the beneficiary works with subordinate employees on financial tasks, whether 
such tasks include administrative duties such as paying routine bills and managing a checking account, the 
level of authority the beneficiary exercises over financial decisions, and whether the beneficiary utilizes the 
services of outside accountants. If the petitioner claims that it does use accountants on a contract basis, it 
should provide evidence in the form of service agreements and documentation of payments made. 
The beneficiary's job description contains duties that, without further explanation, appear to be non- 
managerial and non-executive. The petitioner sl.ated that "[the beneficiary] makes regular contacts with . . . 
companies and [makes] product recommendatior~s as well as [suggests] future prospects of new technological 
products to customers." The petitioner should clearly explain this duty and distinguish whether it is a sales 
and marketing function or executive or managerial function. The petitioner stated that "[the beneficiary's] 
day-to-day duties include meeting with various ,vendors and prospective c~lstomers inside and outside of the 
office." The petitioner should describe in detail the nature of the beneficiary's interaction with vendors and 
customers, including the time he will devote to this task. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily perfixms these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. C'humpion World, Inc. v. INS, 940 F.2d 1533 (Table). 
1991 WL 144470 (9th Cir. July 30, 1991). While it is permissible for the beneficiary to perform some non- 
qualifying duties, the petitioner bears the burden to establish that the majority of his time will be devoted to 
managerial or executive tasks. The beneficiary's job description does not provide sufficient detail in order for 
Citizenship and Immigration Services (CIS) to determine whether he will be employed in a primarily 
managerial or executive capacity. 
As correctly observed by counsel, the beneficiary is not required to supervise personnel, and the petitioner's 
staff size is not determinative of the petitioner's eligibility. However, the petitioner provides that that 
beneficiary will have supervisory authority over four subordinate employees. Thus, it is evident that the 
beneficiary must commit a portion of his time to supervising them. In order for the petitioner to establish that 
the beneficiary's supervisory tasks constitute managerial duties under section 101(a)(44)(A) of the Act, the 
petitioner must establish that the subordinate employees are supervisory, professional, or managerial. See 
section 10 1 (a)(44)(A)(ii) of the Act. 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 professionals. See Matter of Church Scienlolo~ Internutionul, 19 I&N Dec. 593, 604 (Comm. 1988). 
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 I0 l (a)(32) of the Act, 8 U.S.C. 5 1 10 1 (a)(32), states that "[tlhe term pr($ession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies. or seminaries." The tern1 "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type it1 a given field gained by a prolonged course of specialized instruction and 
WAC-04-1 53-50160 
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study of at least baccalaureate level, which is a realistic prerequisite to entry into the particuiar field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Mutter of Ling, 13 l&N Dec. 35 (R.C. 1968); 
Matlrr qf Shin, 1 1 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 a subordinate employee. 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 provided clear evidence of the number of individuals it employed as 
of the date of filing the petition. The petitioner references that the beneficiary "directly supervised and 
educated Petitioner's four employees," yet on Form 1-129 the petitioner indicated that it employs four 
individuals including the beneficiary. The petitioner's organizational chart reflects that it employs four 
individuals including the beneficiary. The petitioner's California Form DE-6 for the fourth quarter of 2003 
shows that it employed the beneficiary and one other individual during the covered period. The petitioner 
submitted a Michigan State quarterly report for the fourth quarter of 2003 that shows that it employed a third 
individual during the covered period. Thus, as of December 3 1, 2003, it appears that the petitioner had only 
three employees. 
As the petition was filed on May 5, 2004, Stale and federal quarterly reports should be available for the 
second quarter of 2004 to show the number of ir~dividuals employed by the petitioner at the time the petition 
was filed. The petitioner should submit its IRS Form 94 I. Employer's Quarterly Tax Return, California Form 
DE-6, and any other quarterly State filings for the second quarter of 2004, including all attachments. The 
petitioner should submit documentation of its payroll covering at least the three months immediately 
preceding the date the petition was filed as evidence of the number of individuals it employed as of the filing 
date. If the petitioner claims that the beneficiary has supervisory authority over contract employees, it should 
provide evidence of such, including service agreements, documentation of payments made, clear descriptions 
of the services provided, and the nature of supenision required of the beneficiary. 
The evidence of record contains no indication OF the duties of the beneficiary's subordinates. The petitioner 
should provide a complete list of individuals that the beneficiary will supervise, including a description of 
each employee's duties, educational background, and supervisory responsibility. The petitioner's 
organizational chart shows that one of the beneficiary's subordinates is titled Manager, Marketing & Sales. 
The petitioner should clearly describe this individual's managerial authority such that CIS can determine if he 
is a manager as contemplated by section 101 (a)(44)(A)(ii) of the Act. 
If the beneficiary's subordinates are deemed not to be supervisory, professional, or managerial, the beneficiary 
may still qualify as a managerial or executive employee. However, time he invests in supervising them will 
not be considered time acting in a managerial or executive capacity. Again. the petitioner bears the burden of 
showing that the majority of the beneficiary's time will be devoted to managerial or executive tasks. 
Counsel suggest that the beneficiary qualifies a:; a function manager. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
WAC-04- I 53-50 160 
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primarily responsible for managing an "essential function" within the organization. See section 
1 Ol(a)(44)(A)(ii) of the Act, 8 U.S.C. $ 1 101(;1)(43)(A)(ii). If a petitioner claims that the beneficiary is 
managing an essential function, the petitioner must identify the function with specificity, articulate the 
essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. In addition, the petitioner must provide a comprehensive and detailed 
description of the beneficiary's daily duties demonstrating that the beneficiary manages the function rather 
than performs the duties relating to the function. 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. Mutter of C'hurch Scientology Inlernal'ionuI, 19 I&N Dec. 593, 604 (Comm. 1988). In this matter, 
the petitioner has not provided sufficient evidence that the beneficiary manages an essential function. If the 
petitioner contends that the beneficiary is a function manager, it should clearly describe the essential function 
managed by the beneficiary, and submit a detailed explanation of how the beneficiary is relieved from 
actually performing the day-to-day tasks associated with the tinction. Merely serving as the manager over an 
entire business does not constitute managing an essential function. Greater explanation and evidence are 
required. 
It is further noted 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 hfichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Evidence and explanation that the petitioner submits must show eiigibility as of the filing date, May 5, 2004. 
Documentation of business activity and hiring rhat occurretl after the date of filing is not probative of the 
petitioner's eligibility and will not be considered. 
In this matter, the evidence of record raises underlying questions regarding eligibility. Further evidence is 
required in order to establish that the petitioner ineets the requirements for L-1A classification as of the date 
of filing the petition. Accordingly, the director's decision will be withdrawn, and the petition will be remanded. 
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 datt:d May 12, 2004 is withdrawn. The matter is remanded for 
further action and consideration consistent with the above discussion and entry of a new decision.