sustained L-1A Case: Agricultural Products

PUBLIC COPY 
U.S. Department of Homeiand Security 
20 Massachusetts Ave.,N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 06 26 1 5 18777 Office: VERMONT SERVICE CENTER Date: 'A06 0 4 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 1 0 1 (a)( 1 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
bert P. ~iemann,+dhief 
rninistrative Appeals Office 
EAC 06 261 51877 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will sustain the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its chef executive officer 
as an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(15)(L). The petitioner, a California corporation, states that it is 
engaged in the import and export of agricultural products as well as the wholesale and retail sale of pet foods 
and pet supplies. The petitioner claims to be a subsidiary of Simar (Group) Co. Ltd. located in Myanmar. The 
petitioner has employed the beneficiary in L-1A status since January 2002 and now seeks to extend his 
employment for two additional years. 
The director denied the petition concluding that the petitioner had not established 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 
decision and asserts that the director misunderstood the nature of the petitioner's business and the 
beneficiary's role within the company. Counsel submits a brief and documentary 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 hs 
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) 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. 
EAC06261 51877 
Page 3 
(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 education, training, and employment qualifies him/her 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 has 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. 8 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, hnctions 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 
supervisorf s supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 5 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 06 261 51877 
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The nonimmigrant petition was filed on September 21, 2006. In a letter dated September 19, 2006, the 
petitioner indicated that the beneficiary would continue to be employed by the petitioner in an executive 
capacity. The petitioner provided a detailed list of duties to be performed by the beneficiary: 
Direct the management and overall administration of the U. S . subsidiary (40%), including: 
1) Provide leadership and direction to ensure that the company mission and core values are 
put into practice. 
2) Signiexecute major corporate documents on behalf of the company. 
3) Evaluate the company's existing major customers and suppliers. Develop strategies to 
maintain effective long-term relationships with them. 
4) Delegate assignments to departmental managers. Supervise the quality of major 
assignments. 
5) Attend weekly meetings with all the departmental managers and key staff, listen to their 
reportsipresentations on current matters, make decisions on key issues, in order to help 
increase the profitability of the company's business. 
6) Review and manage the company's overall operating budget. 
7) Evaluate employee's performance regularly, including the departmental managers. Ensure 
employees following the operation plan and company policies. 
8) Review the employee's evaluation results to promote or reward accordingly. 
9) Collaborate with the subordinating managers to develop and implement plans for the 
operational infrastructure of systems, processes and personnel designed to accommodate 
the growth objectives of the company. 
Establish and execute the goals and policies of the U.S. Subsidiary (30%), including: 
10) Set company's annual projections and operating goals for each year. 
11) Drive the company to achieve and surpass business goals and objectives, including sales 
revenues, cash flow, and profitability. 
12) Determine the company's expansion of business lines based on collected information of 
new technology and culture development. 
13) Review company's financial statements of current year, figure percentages of sales, costs, 
expenses, etc. and set goals for the following year. 
14) Develop and execute company's continued growth strategy and expansion to other 
business. Research and analyze feasibility of expansion and feasibility against company's 
operating position. 
15) Formulate and modify company operating policies, and ensure employees are in 
compliance with the company policies for maintaining company's reputation in the 
market. 
16) Plan and determine new marketing strategies based on current market research and 
business development environment, in order to support the existing business. 
17) Develop and maintain relationships within the company, the customer community and 
industry to better understand the business requirement and international environment. 
EAC 06 261 51877 
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Exercise wide latitude in discretionary decision-making, and make important decisions for 
U. S . Subsidiary on strategic planning and major financial activity (25 %), including: 
1 8) Make decisions on major projects upon reviewing of the trading documents and 
correspondence with major customers. 
1 9) Review and approvaYdisapprove key proj ect s and major trading or financial documents. 
Make modifications if necessary. 
20) Supervise and make decisions on the company's major financial activities. 
21) Assume complete responsibility and accountability for all activities and performance of 
the company, and compliance with governing laws. 
22) Provide effective oversight in the identification, evaluation, negotiation and integration of 
business in order to assure that expectations are fulfilled. 
23) Review and execute major important corporate documents including company's financial 
statements and tax documents, department manager's evaluation reports, new investment 
proposals, and other business expansion plans. 
Receive only general direction for the board of directors or the parent company (5%), 
including: 
24) Authority to determine employee's salary and salary increase, hirelfire personnel of the 
whole company, including department managers, as necessary. 
25) Represent the top authority of the U.S. subsidiary. Serve as a leader of the executive 
management team of the U.S. subsidiary. 
26) Establish credibility throughout the organization in concern with the Board of Directors 
to effectively develop solutions to business opportunities and challenges. 
27) Receive general direction from the board of directors in Myanmar via telephonic 
meeting. 
In support of the petition, the petitioner provided a chart listing all ten subordinate employees of the U.S. 
company, including their names, job titles, level of education, monthly salary and job duties. The petitioner 
indicated that it employs a trading and market developing manager who: supervises the daily operation of the 
trading and market development department; negotiates with suppliers in Myanmar and China; negotiates 
with major customers in the United States; signs trading contracts; explores new markets for agricultural 
products; increases customer base through market development; and prepares quarterly and annual trading 
reports for review by the beneficiary. 
The petitioner further indicated that the trading and market development manager supervises a logistics 
coordinator who is responsible for: implementing the company's logistics strategies; and coordinating with 
banks, suppliers, shipping companies and customers to ensure efficient transactions and delivery. The 
petitioner also stated that it employs a trading assistant who: tracks and maintains order levels, purchasing and 
shipping records; compiles data fi-om contracts; purchase orders, invoices and accounting records; processes 
required trading documents as directed by the department manager; collects market information and customer 
feedback, and supports customer service and trading processing. 
EAC 06 261 51877 
Page 6 
The petitioner stated that it employs a retail store manager who ensure that company policies and procedures 
are followed; implements advertising and sales promotions programs; is responsible for all aspects of sales, 
gross margin, expenses, inventory levels and shrink; and recruits trains and leads store staff, including a 
warehouse assistant and three sales staff. 
Finally, the chart depicts an accounting manager who oversees the activities of the accounting department, 
products monthly financial statements, annual audits and annual budgets and reports, and a bookkeeper, who 
reports to the accounting manager. The petitioner indicated that six of the ten employees subordinate to the 
beneficiary have bachelor's degrees. 
The petitioner provided a copy of its California Form DE-6, Employer's Quarterly Report, for the first quarter 
of 2006, which confirmed the employment of the company's 1 1 workers. 
The director issued a request for additional evidence on December 8, 2006, instructing the petitioner to 
submit, in part, the following: (1) a comprehensive description of the beneficiary duties; (2) a list of all U.S. 
employees which identifies each employee by name and job title, along with complete position descriptions 
for each employee and a breakdown of the number of hours devoted to each of the employees' job duties on a 
weekly basis; (3) copies of payroll records for the months of September and October 2006; (4) copies of all 
IRS Forms W-2 and Forms 1099 issued in 2005; and (5) copies of IRS Form 941, Employer's Quarterly Tax 
Return for the first three quarters of 2006. 
In a response dated February 20, 2007, the petitioner reiterated the lengthy position description submitted 
with the initial petition. The petitioner also submitted an organizational chart depicting the employees 
including on its earlier employee list. The chart shows three departments under the beneficiary's supervision, 
including the retail store, the trading and marketing development department, and an accounting department. 
The petitioner also provided slightly revised position descriptions for the beneficiary's subordinates, which 
were amended to include the number of hours each employee devotes to his or her duties on a weekly basis. 
The petitioner submitted all requested payroll and wage records. In the third quarter of 2006, the quarter in 
which the petition was filed, the petitioner employed 11 workers and paid total wages of $58,541.92. 
The director denied the petition on May 7, 2007, concluding that the petitioner had failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. The director acknowledged 
that the duties performed by the beneficiary's subordinates "would normally require the slulls of bona fide 
professionals," but noted that the petitioner had not established that the employees would carry out such 
duties "on a full-time basis." The director noted that none of the petitioner's titular managers "appear to have 
been compensated at a rate commensurate with a bona fide manager or executive in a major metropolitan 
business market." The director further found that the beneficiary's offered salary "is incongruous with an 
employee who is actually managing other bona fide managers or professionals.'' The director also questioned 
whether the employees of a pet food and supply store would occupy professional positions. 
The director further acknowledged that the petitioner's description of the beneficiary's duties would normally 
be associated with a managerial or executive position, but that the petitioner had not established that the 
EAC 06 261 51877 
Page 7 
beneficiary "will actually be carrying out these duties." The director concluded that the petitioner's business 
does not appear to require a bona fide manager or executive on a full-time basis. 
On appeal, counsel for the petitioner, counsel asserts that the denial was based on an erroneous perception of 
the nature of the petitioner's business and organizational structure, and misinterpretation of the beneficiary's 
job duties and salary. Counsel emphasizes that the petitioner is not merely a retail store, but an importer, 
exporter, wholesaler and retailer, with its primary purpose to engage in international trade. Counsel notes that 
the petitioner submitted a complete organizational chart for the U.S. company which clearly shows that the 
petitioner's retail store is only one of the three departments that contribute to the petitioner's business 
operation. Counsel therefore submits that the beneficiary is not "just a head of a retail store," but rather 
manages and oversees department managers, including a store manager, who supervises the store and reports 
to the beneficiary. 
With respect to the director's findings that the beneficiary does not supervise bona fide professionals, counsel 
asserts that this finding was based solely on the director's assumption that the petitioner is only operating a pet 
supply store. Counsel asserts that the director provided no support for his conclusion that an accounting 
manager or trading manager position would not require the services of a professional. Finally, with respect to 
the beneficiary's salary, counsel asserts that the regulations contain no minimum salary requirements or 
otherwise address a beneficiary's wage or compensation. Counsel objects to the director's conclusion that the 
offered salary is "incongruous" with his executive position, emphasizing that "the salary of the beneficiary 
and the subordinating employees do not mean that the beneficiary and his employees did not fulfill their 
required duties." Finally, counsel asserts that the petitioner provided a very detailed list of job duties for the 
beneficiary, which was comprised primarily of executive and decision-making tasks. Counsel emphasizes that 
none of the job duties indicated that the beneficiary "would perform any specific day-to-day sales or delivery 
functions. " 
Upon review, counsel's assertions are persuasive. The director's decision dated May 7, 2007 will be 
withdrawn and the petition will be approved. 
The petitioner has established that the beneficiary will be employed in a primarily managerial capacity. The 
petitioner has provided thorough explanations and sufficient documentary evidence to demonstrate that the 
beneficiary does in fact manage the entire organization, supervise and control the work of subordinate 
supervisory employees, has the authority to hire and fire all personnel within the company, and exercises 
discretion over the day-to-day operations of the company. The AAO concurs with counsel that the director 
provided inadequate explanation for his determination that the beneficiary would not perform qualifying 
supervisory duties, and for his finding that the beneficiary would primarily perform the day-to-day non- 
managerial operations of the company. The petitioner need only establish by a preponderance of the evidence 
that the beneficiary's duties are primarily managerial in nature. The AAO is satisfied that the beneficiary 
performs the high-level duties associated with the statutory definition of managerial capacity and that he 
would reasonably be required to devote more than half of his time to such duties. 
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or medium- 
size businesses. The AAO has also consistently required the petitioner to establish that the beneficiary's 
EAC 06 261 51 877 
Page 8 
position consists of primarily managerial and executive duties and that the petitioner has sufficient personnel 
to relieve the beneficiary from performing operational and administrative tasks. The reasonable needs of the 
petitioner will not supersede the requirement that the beneficiary be "primarily" employed in a managerial or 
executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 
1 10 1 (a)(44). The reasonable needs of the petitioner may justify a beneficiary who allocates 5 1 percent of his 
duties to managerial or executive tasks as opposed to 90 percent, but those needs will not excuse a beneficiary 
who spends the majority of his or her time on non-qualifying duties. As noted above, the petitioner has 
established that it has a reasonable need for the beneficiary to perform primarily managerial duties within the 
context of its current staffing levels, overall purpose, and current stage of development. The petitioner has 
adequately demonstrated that that the majority of the day-to-day, non-managerial functions of the company 
are performed by the petitioner's subordinate supervisors and employees. 
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. tj 1361. Here, the petitioner has sustained that burden. Accordingly, 
the director's decision dated February 10,2006 is withdrawn. 
ORDER: The appeal is sustained. The petition is approved.