sustained L-1A Case: Automotive

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prevent clearly unwarr~ted 
invasion of personal pnvacy 
PUBLtCCOpy 
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u.s. Citizenship 
and Immigration 
Services 
FILE: Office: CALIFORNIA SERVICE CENTER Date: JAN 19 2011 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(IS)(L) of the Immigration 
and Nationality Act, 8 U.S.c. § IIOI(a)(IS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. 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, 
iJ Perry Rhew 
( v Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant petition and certified the 
decision to the Administrative Appeals Office (AAO) for review, in accordance with 8 C.F.R. § 103.4(a)(5). The 
AAO will withdraw the director's decision and approve the petition. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 10 I (a)(l 5)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.c. § 1101(a)(15)(L). The supplier. It 
states that it is a subsidiary 
seeks to employ the beneficiary in the position of president for a period of three years. was 
previously granted L-IA status in order to open a new office in the United States, and the petitioner's request 
to extend his status was denied in October 2009. 
The petitioner then filed the current "new employment" petition on January 29, 20 I O. The director denied the 
petition on February 25, 2010, concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. On November 17, 2010, the 
director issued a new decision denying the petition on the same grounds and certified the decision to the 
AAO. 
In accordance with 8 C.F.R. § 1 03.4(a)(2), the director notified the petitioner of the certification and provided 
an opportunity for the petitioner to submit a brief to the AAO within 30 days. Counsel for the petitioner 
submitted a brief and additional evidence to the AAO on December 15, 20 I O. 
On certification, counsel claims that U.S. Citizenship and Immigration Services (USCIS) failed to follow its 
own policies with respect to extension petitions. Counsel asserts that the USCIS should have deferred to its 
prior determination that the position offered is in fact in a managerial or executive capacity. Counsel further 
asserts that the director's decision ignores the sizeable operations of the petitioner's Chinese parent company, 
mischaracterizes the nature of the roles performed by the beneficiary's subordinates, places undue emphasis 
on the size of the U.S. company, and is based, in part, upon irrelevant factors such as the size of the 
petitioner's office space and the beneficiary's salary relative to the petitioner's other employees. In further 
support of the petition, the petitioner submits a letter from the president of the petitioner's parent company, 
who seeks to clarifY the nature of the beneficiary's proposed duties for the U.S. subsidiary and clarifY 
discrepancies noted in the director's decision. 
Upon review, the AAO agrees with counsel that the director's decision is based, in part, on errors of fact and 
flawed reasoning. The petitioner has met its burden to establish by a preponderance of the evidence that the 
beneficiary will be employed in a primarily managerial capacity. Accordingly, the AAO will withdraw the 
director's decision and approve the petition. 
Although the petition will be approved, the AAO notes that this matter is not, as claimed by counsel, a request 
for an extension of the beneficiary's previously granted L-I A status. Furthermore, even if this were an 
extension petition, the director owed no deference to the previous finding that the beneficiary qualified for L­
I A status to open a new office. See Memorandum of William R. Yates, Associate Director for Operations, 
Page 3 
The Significance of a Prior CIS Approval ~r a Nonimmigrant Petition in the Context of a Subsequent 
Determination Regarding Eligibility of Petition Validity, 2 fn. I (April 23, 2004). 
I. The Law 
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 I (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 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) 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 (I)(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 
education, training, and employment qualifies himlher 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. 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § I 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; 
Page 4 
(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. § I 10 I (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. 
II. The Issue on Certification 
The sole issue to be addressed in this certification proceeding is whether the petitioner established that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on January 29, 2010. The 
petitioner stated on the Form 1-129 that it had five employees as of that date. 
In a letter dated January 27, 2010, the petitioner its U.S. operations and the of its 
corporate group. The petitioner is an indirect ",I"icii",rv 
describes as a Fortune 500 company and the The 
petitioner stated that its direct parent company has ten manufacturing subsidiaries and 20 joint venture 
companies with foreign partners, with over $380 million in annual sales and 10,000 employees worldwide. 
The petitioner indicated that the U.S. company was established in Michigan in 2008 "to develop and expand 
market shares for our various automotive products in North America, and to provide timely customer service 
and technical support to our customers." The petitioner indicated that after almost two years of operations it 
has "secured substantial business deals including import, export of automotive parts and components, 
technical and engineering service agreement, supplier agreements, etc." 
The petitioner's initial letter included a lengthy list of the beneficiary's job duties separated into two parts. In 
a request for additional evidence ("RFE") dated February 4, 2010, the director instructed the petitioner to 
submit a more detailed description of the beneficiary's duties, advising the petitioner that it should indicate the 
percentage of time spent in each of the listed duties. The petitioner's response to the RFE included the same 
list of duties as the initial letter, with the requested percentages added to the latter section of duties. The job 
description submitted in response to the RFE was quoted in its entirety in the director's decision and will not 
be repeated here. Briefly, the petitioner indicated that the beneficiary'S time would be allocated to 
formulating and overseeing business strategies; directing sales, distribution and supply management; 
managing marketing strategies; overseeing compliance with government rules and requirements applicable to 
the petitioner's business; overseeing resource allocation; directing human resources management; and 
reporting and interacting with the parent company. 
The petitioner's initial supporting evidence included an organizational chart which shows that the beneficiary, 
as president, will and a sales The chart 
indicates that 
_,report 
The petitioner also 
_I t~ales of products customers. Under the terms of 
the agreement.-- is responsible to obtain quote opportunities, coordinate the quote process, 
answer customer's questions and requirements, attend customer's business and technical meetings, and follow 
up product shipments until the supply relationship with the customer is terminated. UThe agreement provides 
that agents are to be paid by commission, in addition to a $1,000 monthly service fee. 
The AAO notes that the agreement appears to have been signed by_ the __ market 
sales representative, on behalf of The petitioner also pro~usiness 
correspondence between the petitioner's customers, the petitioner and_ which establish that •. 
_ is actively involved in the quotation and sales process on behalf of the petitioning company. 
In the RFE issued on February 4, 20 I 0, the director requested, inter alia, the following: (1) detailed 
description of job duties, educational level, annual salaries/wages and immigration status for the five 
employees identified on the organizational chart; (2) the source of remuneration of all employees; (3) copies 
of the petitioner's State Quarterly Wage Reports for all employees for the last six quarters; (4) copies of the 
U.S. company's payroll summary, Forms W-2 and W-3, evidencing wages paid to employees for the years 
2008 and 2009; and (5) a copy of the petitioner's corporate income tax returns, with all schedules and 
attachments, for the years 2008 and 2009. As noted above, the director also requested a more detailed 
description of the beneficiary'S duties and the percentage of time he allocates to each duty. 
The petitioner provided the requested position descriptions for the beneficiary's employees in a letter dated 
February 5, 2010. The petitioner noted that in addition to supervising the U.S.-based employees, the 
beneficiary will continue' directions to some of the managers" based at the Chinese parent company. 
The petitioner indicated serves as a material engineer with an annual salary of $74,000, 
holds an H-I B visa, and has a Master's degree in computer applications and a Bachelor's degree in Material 
Engineering. _ serves as financing manager at an annual salary of $43,000, holds an L-IA visa, and has 
a Bachelor's degree in Economics. Finally, the petitioner indicated that the three sales managers, _ 
__ and , are all U.S. citizens who work on commission with a monthly base salary 
of$I,OOO to $2,000. The petitioner stated that_ and_ each hold Bachelor's degrees (in metal 
Page 6 
stamping and mechanical engIneerIng, respectively), and _ has a Master's degree In Business 
Administration. 
The petitioner submitted the requested state quarterly wage reports for all four quarters of2009, along with its 
payroll journal report for January 2010. The January 2010 report reflects wages paid to all five employees, 
and indicates that the sales managers receive Form 1099 rather than an IRS Form W-2. The petitioner's 2009 
IRS Form 1040, u.S. Corporation Income Tax Return, shows that the company paid $110,707 in 
compensation to officers, $5,500 in salaries and wages, $89,000 in outside services, and $56,588 in 
professional fees. 
The director denied the petition on February 25, 2010, and subsequently issued a new decision on November 
17, 2010, which was certified to the AAO. The director denied the petition on the sole grounds that the 
petitioner did not establish that the beneficiary will be employed in a primarily managerial or executive 
nature. The director noted that the petitioner appeared to be relying on partial sections of the regulations 
defining managerial capacity and executive capacity, and found that several of the beneficiary's proposed 
duties paraphrase elements of the regulatory definitions. The director determined that the petitioner "listed 
the duties as a conglomerate and left it up to USClS to decide whether or not a duty was primarily managerial 
and/or executive in nature." 
The director went on to discuss various discrepancies in the petitioner's submissions which she determined 
had not been addressed satisfactorily. The director noted that the petitioner had initially identified_. 
as holding the position of sales manager; however, in response to the RFE, identified him as a 
materials engineer and provided a job description that did not appear to encompass the duties of a sales 
manager. The director noted that _ had been granted a change of status to H-I B classification more 
than one month before the petition was filed, thus, it remained unclear what position he actually holds. 
The director also found that the submitted evidence fails to establish any payments to the claimed sales 
managers. The director noted that the state quarterly reports for 2009 did not reflect any wages paid to these 
employees, although all three employees were named on the January 2010 payroll journal report. The 
director explained the perceived discrepancy as follows: 
According to the payroll's legend, however, the three sales managers are classified as 
receiving 1099s and no taxes appeared to be withheld for any of three persons. Furthermore, 
the bank account summary provided for January 2010 indicates that only $9,721.46 was 
debited under the description of "Fawer USA inc primepay payroll'I331214732 ••• 
II!!!!!!!!!!!!!!!!!!!!!!!!!!!!!_." Yet the pay roll summary clearly shows that_ earned $3,588 and 
earned $6,235, which when combined, is equivalent to $9,823. Thus it does not 
appear that the U.S. entity actually paid the three sales managers the monthly base salaries 
indicated, which an extra $4,000 to the amount debited (and/or did not pay 
_ and their professed wages). Lastly, the e-mail correspondence 
submitted indicates and not 
_ .... As such, USC IS is unclear as to who the three sales managers are actually 
working for or reporting to and how they are being remunerated. 
The AAO notes that the director misread the petitioner's payroll journal and January 2010 bank statement. 
The payroll journal for the month of January 20 I 0 indicates that ___ and_ 
were paid by direct deposit, in an amount totaling $9,721.46, which is precisely the amount reflected in the 
petitioner's bank records. The director appears to have relied upon the gross wages paid to _ and 
_ in calculating the expected payroll deposit amount. The payroll journal also clearly indicates that 
and _were paid by company check, rather than by direct deposit. 
The director further found that there was a discrepancy with respect to the beneficiary's employment dates as 
president of the U.S. company because it appeared that he signed a lease in that capacity two weeks before a 
job offer letter for the position was issued by the parent company on September 28, 2009. The director 
concluded that "it appears that the beneficiary was being employed for an unspecified period of time under 
the position title of president before the issue date of the appointment letter." The director also questioned 
why the beneficiary was paid the same wages as during the second and third quarters of 
2009, ifhe was in fact the president of the company his subordinate. 
The AAO notes that this entire line of inquiry is irrelevant to the matter at hand. The beneficiary was granted 
L-l A status for employment as the petitioner's president from September 2008 through September 2009. 
Therefore, the fact that he signed a lease in that capacity on September 14, 2009 does not create a discrepancy 
or raise questions regarding his actual job title. Further, the beneficiary's salary as paid during the validity 
period of a previous petition that has since expired is not determinative of his position within the company 
and provides insufficient basis for USCIS to question whether he was or is in fact the company's president. 
The instant petition is a new petition. The beneficiary has been offered the position of president at an annual 
salary of $85,000, which would make him the petitioner's highest paid employee. Nevertheless, the AAO 
finds no reason to doubt that the beneficiary previously held this position, regardless of what wages were paid 
to him during the company's first year of operation. 
The director noted that based on the perceived inconsistencies and the petitioner's failure to provide the 
requested IRS Forms W-2, USClS is "unable to determine which subordinate employees the beneficiary will 
be directing and/or supervising, what the claimed subordinate positions are in the organization, where the 
beneficiary's duties appear to be in the organizational hierarchy, or whether or not the U.S. entity has reached 
a level of organizational complexity such that the hiring/firing of personnel, discretionary decision-making 
and setting company goals and policies constitute significant components of the duties performed on a day-to­
day basis." 
The director further observed that, even if the discrepancies had been resolved, the record does not establish 
that the beneficiary's proposed position is primarily executive or managerial. The director, in addressing the 
petitioner's "minimal staffing level," noted that in a company with a president, four managers and an engineer, 
the president would "by necessity perform the operational duties of the U.S. organization." The director 
acknowledged that the petitioner's reasonable needs and stage of development must be considered pursuant to 
section IOI(a)(44)(C) of the Act, but found that, here, the petitioner "has not explained how the reasonable 
needs of the petitioning enterprise justify the beneficiary's performance of non-managerial or non-executive 
duties. " 
In reaching this conclusion, the director emphasized that the petitioner's 2008 audited financial statements 
identify the company as "a development stage company." In addition, the director noted that the petitioner's 
updated lease documents appear to show that the petitioner is in possession of only 468 square feet of office 
space. The director concluded that "in light of the small working space, it is not unreasonable to assume that 
Page 8 
the petitioning organization is not in a stage of development, having a relatively small working space, to 
reasonably require the beneficiary's job duties." 
The AAO notes that neither the petitioner's 2008 financial statements nor the petitioner's "apparent" office 
space provide an adequate basis for drawing any conclusions regarding the beneficiary's employment 
capacity. Regardless, the AAO notes that the petitioning company was established during 2008 and therefore 
was reasonably characterized by its accountants as a "development stage company" during that fiscal year. 
Furthermore, the petitioner's lease executed in September 2009 clearly indicates that the company has rented 
2,499 square feet of office space. It is unclear how the director derived the lesser figure of 468 square feet. 
The director went on to question whether the beneficiary's claimed subordinate employees are employed in a 
professional capacity. The director noted that, after consulting the U.S. Department of Labor's 2009-2010 
Occupational Outlook Handbook, it is evident that neither a sales manager nor a financial manager requires a 
bachelor's degree. The director further found that none of the alleged managerial positions appear to have any 
subordinate employees, such that they could be classified as managers or supervisors. The director 
acknowledged that the position of material engineer is a professional position, but found that the evidence as a 
whole does not establish that the beneficiary would primarily supervise a subordinate staff comprised of 
managerial, supervisory or professional positions. The director concluded that the beneficiary would more 
likely than not be acting as a first-line supervisor of non-professional employees, rather than as a manager or 
executive. 
Counsel's brief on certification addresses various factual and legal errors on the part of the director, several of 
which have been addressed above. Counsel alleges that the director ignored the sizeable operations of the 
petitioner's parent company, noting that "the beneficiary'S position as highest authority of that company's arm 
in the United States necessarily implies the abundance of high level managerial work for him to perform in 
his capacity as a key manager in coordinating the operation of the Chinese and US offices." Counsel further 
argues that the director ignored the fact that the beneficiary would continue to supervise employees in China. 
In addition, counsel contends that the director erred by placing undue emphasis on the small size of the 
petitioning company, relying on National Hand Tool Corp. v. Pasquarell, 889 F.2d, n.5 (5th Cir. 1989) and 
Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570, 1573 (N.D. Ga. 1988) to stand for the proposition that the 
statute does not limit managers or executives to persons who supervise a large number of persons or large 
enterprises. 
Counsel further argues that the petitioner, given the nature of its business, has a reasonable need for a 
managerial or executive position. Counsel emphasizes that the petitioner is a subsidiary of the largest 
company in the Chinese automotive industry, and as such will play an important role in cooperation and 
development between the U.S. and Chinese auto industries. 
Finally, counsel contends that the director's decision "ignores the fact that the case at hand is an extension 
petition." On appeal, counsel cites to an April 23, 2004 agency memorandum from William R. Yates, which 
states that in matters related to an extension of nonimmigrant petition validity involving the same parties and 
Page 9 
the same underlying facts, deference should be given to an adjudicator's prior determination of eligibility.! 
Counsel asserts that the director erred by failing to adhere to the guidance provided in the Yates 
memorandum, noting that it is not clear why USCIS "is calling into serious doubt its own previous approval 
of the petitioner's merits." 
In support of the petition, the petitioner has submitted a letter dated December 14, 20 I 0 from the president of 
the petitioner's parent company, who further addresses the beneficiary's job duties, providing several 
examples of specific actions the beneficiary has taken as president. He notes that the U.S. company has been 
challenged by the economic recession and the effects on the U.S. auto industry, and that such challenges have 
required the presence of an experienced manager to control risks and to alter business plans and strategies 
according to market conditions. 
III. Conclusion 
Upon review of the totality of the record, the petitioner has established that the beneficiary will be employed 
in a managerial capacity. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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)(A)(iv) of the Act; 8 C.F.R. § 214.2(1)(I)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. § 214.2(1)(I)(ii)(B)(3). 
The record establishes that the petitioning company, as of the date of filing, was staffed by a total of five 
employees, all of whom possess at least a Bachelor's degree. All of these employees would report directly or 
indirectly to the beneficiary. Although the director determined that only one of the positions subordinate to 
the beneficiary would require an individual with a Bachelor's degree, the AAO disagrees.' The petitioner has 
! Memorandum of William R. Yates, Associate Director for Operations, The Significance of a Prior CIS 
Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility of 
Petition Validity (April 23, 2004). 
2 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 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Malter of Sea, 19 I&N Dec. 817 (Comm. 1988); Malter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.O. 1966). 
Page IO 
provided copies of business correspondence between the petitioner's commissioned sales managers, its 
material engineer, and its auto industry customers. The record indicates that the petitioner is not merely 
selling a standard, stock product but rather is working with automobile company engineering staff and the 
petitioning group's engineering staff in order to custom design and manufacture parts for use in commercial 
and passenger cars sold by U.S. automakers. The documents exchanged during the quotation process are 
detailed engineering and manufacturing design documents. As established by the evidence, the process 
requires the petitioner's staff to meet with the U.S. customers' staff to discuss product specifications and 
would reasonably require the services of individuals who have engineering or related degrees themselves. 
Given the nature of the work, the AAO finds sufficient evidence in the record to support a finding that at least 
a majority of the u.S. company's existing staff is comprised of professionals. The AAO is also satisfied that 
the beneficiary would have the authority to hire and fire employees and take other personnel actions with 
respect to the staffing of the United States office. 
The petitioner has also met its burden to establish that the beneficiary "manages the organization, or a 
department, subdivision, function, or component of the organization," as required by section IOl(a)(44)(A)(i) 
of the Act. The beneficiary would be the highest-ranked employee in the petitioner's U.S. company, which is 
itself a subsidiary with close ties to its foreign parent company and part of a Fortune 500 multinational 
organization. The petitioner has also clarified that the U.S. subsidiary was established with a $1.3 million 
investment as a key component of the multinational organization charged with increasing the parent 
company's visibility in the North American market. 
Finally, the petitioner must establish that the beneficiary exercises discretion over the day-to-day operations 
of the activity or function for which he has authority, as required by section IOI(a)(44)(A)(iv) of the Act. 
USClS reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational duties, the 
nature of the petitioner's business, and any other factors that will contribute to a complete understanding ofa 
beneficiary's actual duties and role in a business. The petitioner has satisfied this element of the definition. 
As required by section 10 I (a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity, USCIS must take into account the reasonable 
needs of the organization, in light of the overall purpose and stage of development of the organization. 
However, 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. § I 10 I (a)(44). The reasonable needs of the petitioner may justify 
a beneficiary who allocates 51 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. 
Here, the director concluded that the beneficiary must be engaged in the operational tasks of the company due 
to the fact that it employs only five other employees. The director's decision does not indicate which 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by 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. 
operational tasks the director believes the beneficiary would engage, nor does it appear to take into account 
the reasonable needs of the organization. The documentary evidence demonstrates that the beneficiary is not 
directly involved in the day-to-day routine details of obtaining customer specifications, preparing quotes or 
other non-qualifYing tasks related to the petitioner's primary business activities. Rather, the evidence shows 
that the sales managers directly interact with customers and potential customers with guidance and input from 
the material engineer, who in turn reports to the beneficiary. The evidence also establishes that the petitioner 
works closely with other companies within its corporate group during the quotation, sales and manufacturing 
process and has resources beyond the staff of the U.S. office. While the record shows that the petitioner has 
been consistently doing business over the last year, and has grown from two to five employees, the scope of 
the U.S. operation is not large and we are satisfied that the current staff is sufficient to relieve the beneficiary 
from primarily performing non-managerial tasks. The petitioner's parent company has explained its 
reasonable need to place a bona fide manager in charge of the U.S. company to oversee its 1.3 million 
investment in the U.S. market and to manage risks and alter business plans as necessary in light of the 
economic recession and its impact on the U.S. auto industry. Overall, the evidence presented is sufficient to 
establish that the beneficiary would reasonably need to devote at least 51 % of his time to the claimed 
managerial duties. 
Based on the foregoing, the petitioner has established that the beneficiary would be employed in a primarily 
managerial capacity. Accordingly, the appeal will be sustained. 
Finally, although the petition will be approved, we note that this matter is not, as claimed by counsel, a 
request for an extension of the beneficiary's previously granted L-IA status. Pursuant to 8 C.F.R. 
§ 214.2(1)(14)(i), an extension petition may be filed only if the validity of the original petition has not expired. 
Here, the petitioner filed its request for an extension of the beneficiary's L-IA status before the initial petition 
expired and the extension request was denied in October 2009. The instant petition was filed well after the 
initial new office petition expired and is therefore adjudicated as a new petition, pursuant to 8 C.F.R. 
§ 214.2(1)(3), rather than as an extension of the beneficiary's initial petition, pursuant to 8 C.F.R. 
§ 214.2(I)(14)(ii). 
Furthermore, even if this were an extension petition, the director owed no deference to the previous finding 
that the beneficiary qualified for L-I A status to open a new office. The one-year "new office" provision is an 
accommodation for newly established enterprises, provided for by USCIS regulation, that allows for a more 
lenient treatment of managers or executives that are entering the United States to open a new office. The 
Yates memorandum specifically states, at page 2, fn.l, that it does not apply to L-l new office extension 
petitions. 
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. § 1361. Here, the petitioner has sustained that burden. For the 
foregoing reasons the decision of the director will be withdrawn and the petition will be approved. 
ORDER: The decision of the director is withdrawn. The petition is approved.