sustained L-1A Case: Education And Entertainment

rdcnlnj.irib ,Y ddded to 
prevent clearly unwammW 
badon of prhrcry 
PUBLIC COPY 
"'-6 U. S. Citizen hip 
@ ;::v;:ygkn 
File: WAC 04 130 5069 1 Office: CALIFORNIA SERVICE CENTER ~atei )WN 1 0 
Petition: Petition for a Nonirnmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
1 
This is the decision of the Administrative Appeals Office in your case. All documents have b 
the office that originally decided your case. Any further inquiry must be made to that office. 
f Robert P. Wiemann, ~dctor 
Administrative Appeals Office 
b 
WAC 04 130 50691 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a 
matter is now before the Administrative Appeals Office (AAO) on appeal. The 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Act (the Act), 8 U.S.C. tj 1101(a)(15)(L). The petitioner is a corporation 
that operates a franchised learning center and a karaoke music studio. 
subsidiary of Yong Kang Ryu Tong Co., Ltd. located in Seoul, Korea. 
one-year period of stay to open a new office in the United 
extensions of status. The petitioner now seeks to extend the 
period. 
The director denied the petition concluding that the petitioner did not establish that the ben ficiary will be 
employed in the United States in a primarily managerial or executive capacity. Specifically, th director noted 
that the petitioner did not show that the beneficiary will be supervising professional, managerial or 
supervisory personnel, or that it otherwise employs a staff sufficient to relieve the b eficiary from 
performing non-qualifying duties. 
I 
The petitioner subsequently filed an appeal. The director declined to treat the appeal 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts 
(1) provided no basis for concluding that the petitioner did not have sufficient staff to 
from performing non-qualifying duties; (2) erroneously stated that the petitioner 
when it showed ten employees on its organizational chart; and (3) ignored the 
subordinates have college degrees. Counsel briefly re-states the beneficiary's 
is consistent with the duties of a president of "any company." 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must 
outlined in section lOl(a)(lS)(L) of the Act. Specifically, a qualifying organization must 
beneficiary in a qualifying managerial or executive capacity, or in a specialized 
continuous year within three years preceding the beneficiary's application 
States. In addition, the beneficiary must seek to enter the United States 
or her services to the same employer or a subsidiary or affiliate 
specialized knowledge capacity. 
The regulation at 8 C.F.R. tj 214.2(1)(3) states that an individual petition filed on Fonn 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will empl y the 
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this se tion. 
8 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
knowledge capacity, including a detailed description of the services to be 
WAC 04 130 50691 
Page 3 
(iii) Evidence that the alien has at least one continuous year of full-time 
abroad with a qualifying organization within the three years preceding 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position t at was 
managerial, executive or involved specialized knowledge and that the alien s prior 
education, training, and employment qualifies himher to perform the i tended 
services in the United States; however, the work in the United States need no be the 
same work which the alien performed abroad. 
i 
The primary issue in this matter is whether the beneficiary will be employed by the United S ates entity in a 
primarily managerial or executive capacity. 
i 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or compo 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
employees, or manages an essential function within the organization, or a 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has 
hire and fire or recommend those as well as other personnel actions 
promotion and leave authorization), or if no other employee is directly 
functions at a senior level within the organizational hierarchy or with 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or 
which the employee has authority. A first line supervisor is not 
acting in a managerial capacity merely by virtue of the 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function f the 
organization; 
P 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and I 
WAC 04 130 50691 
Page 4 
(iv) receives only general supervision or direction from higher level executives, t 
of directors, or stockholders of the organization. 
In a March 30, 2004 letter submitted in support of the petition, the petitioner described t e beneficiary's 
duties as: 
i 
As President of the company, [the beneficiary] has set up the U.S. subsidiary and 
full responsibility for the direction, coordination, and operations of the 
be responsible for planning, formulating and implementing 
policies and procedures. He will use his independent 
and cultivating new projects and investments. [The 
day operations of the business and will have 
actions with respect to the company 
discretionary powers, receiving direction only from the parent company.. .. 
In addition to the duties beneficiary] directs JEI Learning Center 
through his managing teacher, who has a Bachelor's degree in Englis . [The 
beneficiary] regularly meets with Ms.. ho reports to him with company matt rs and 
issues, including curriculum development, business management, financial matte s, and 
student relations. [The beneficiary] regularly makes decisions and directs Ms 
i to 
execute those decisions. 
[The beneficiary] also directs and operates Muse Karaoke through a manager, Hong SL 
who is responsible for general supervision of the business, bookkeeping, and maintenance 
the karaoke machines. The manager also supervises the customer service representati\.e 
services the customers, receives payments, and reports to the manager. 
On Form 1-129, the petitioner indicated that it employed nine individuals as of April 1, 2004. 
submitted an organizational chart depicting a total of eight employees. The chart lists the 
positions as president, director of the learning center, and director of the music studio. The char: 
the music studio employs a manager and a customer service employee, and that the learning 
managerlteacher and four additional teachers. The petitioner also submitted its California 
Employer's Quarterly Wage Report, for all four quarters of 2003, showing that the company 
more than six individuals in any month during the year. As of December 31, 2003, the 
employees on its payroll, including the beneficiary and one of the individuals identified as a 
employee identified as a teacherlmanager received wages during the first two quarters of 2003, 
employee identified as a teacher received wages during the second and third quarters of 2003. 
four employees shown on the petitioner's organizational chart do not appear on the Forms DE-6 
k Jun, 
of 
who 
The petitioner 
bene:'iciary in three 
indicates that 
center employs a 
Forms DE-6, 
employed no 
corn?any had five 
teacher. The 
and another 
The remaining 
for 2003. 
WAC 04 130 50691 
Page 5 
On April 13, 2004, the director requested additional evidence. In part, the director 
submit: (1) a more detailed description of the beneficiary's duties and the 
each task; and (2) an organizational chart for the U.S. entity which lists all 
supervision, including a brief description of duties, educational level, 
status for each employee. 
In response, the petitioner submitted a letter dated June 19, 2004. The petitioner indicated 
the company, the beneficiary will be responsible for "organizing, expanding, directing, 
business." The petitioner re-stated the job description submitted with the initial petition, 
As far as the percentage of time spent on each duty, it is impossible to say and depen s on a 
myriad of things. For example, sometimes reviewing and analyzing financial rep0 s may 
require more attention than actual meeting with managers. Time spent on each duty v 
day. The amount of time spent on any given duty will depend on what priority is assi ed to 
those duties which in turn depends on numerous factors such as meeting a particular d adline 
or urgency of the problem. 
is by 
On appeal, counsel for the petitioner asserts that the director provided no basis for his 
that the petitioner does not have sufficient staff to carry out the petitioner's daily 
misstated the number of employees working for the petitioner. Counsel claims 
clearly showed ten employees working for the petitioner, and asserts that the 
beneficiary from performing operational duties. Counsel also contends 
ignored that "at least six" of the beneficiary's subordinates have college 
the beneficiary's job description and asserts that his duties "are 
president of any company." Counsel asserts that a company 
a reasonable need for an executive. 
The petitioner provided an organizational chart that describes the same structure indicated i7 
chart. The petitioner added the following information: the "manager" of the learning center is 
curriculum development and receives $25.00 per hour; all of the teachers have a "college 
between $9.00 and $10.00 per hour; the music studio manager has a college degree and earns $1 
and the "customer service" employee is a college student earning $9.00 per hour. 
The director denied the petition on July 14, 2004 concluding that the petitioner had not 
beneficiary would be employed in a managerial or executive capacity. The director noted the 
supervision of the learning center manager, the music studio manager, and the 
representative, and concluded that the petitioner had not established that the beneficiary 
professional, managerial or supervisory personnel. The director also determined that the 
establish that it had sufficient staff to relieve the beneficiary from performing non-qualifying 
Accordingly, the director concluded that the beneficiary would primarily be directly providing 
the business and supervising three non-professional employees. 
the previous 
-~esponsible for 
degree" and earn 
5.00 per hour; 
established that the 
beneficiary's 
cus.omer service 
wculd supervise 
petitioner did not 
duties. 
the services of 
WAC 04 130 50691 
Page 6 
Upon review, counsel's assertions are not persuasive. When examining the executive or 
of the beneficiary, the AAO will look first to the petitioner's description of the job 
$ 24.2(1)(3)(). The petitioner's description of the job duties must clearly 
performed by the beneficiary and indicate whether such duties are either in 
capacity. Id. 
Rather than providing a specific description of the beneficiary's duties, the petitioner 
provided a vague description that generally paraphrases the statutory definitions of 
capacity. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 55 
the petitioner depicted the beneficiary as "directing.. .the operations 
implementing . . .policies and procedures," "receiving direction 
"overseeing the day-to-day operations," and indicated that he would 
other personnel actions," and "exercise wide latitude of 
assertions regarding the beneficiary's employment capacity 
of proof. Merely repeating the language of the statute or 
of proof. Fedin Bros. Co., Lrd. v. Sava, 724 F. Supp. 1 
Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
After reviewing the vague job description submitted with the initial petition, the director 
petitioner submit a detailed job description listing specific duties performed by the 
the percentage of time the beneficiary would spend on each task. In response, 
same inadequate job description. Instead of providing the requesting 
divides his time, the petitioner ambiguously stated: "The amount of time 
on what priority is assigned to those duties which in turn depends on 
particular deadline or urgency of the problem." As the petitioner 
performed by the beneficiary, this statement is not helpful in 
engaged in managerial or executive duties. The purpose 
information that clarifies whether eligibility for the 
§ 103.2(b)(8). The failure to submit requested evidence 
grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). 
Although the director did not specifically reference the beneficiary's job description in his dec'sion, counsel 
notes on appeal that the described duties "are completely consistent with the duties of a pr sident of any 
company. To require any further specificity would be redundant and mere surplusage." Th AAO is not 
required to conclude that the beneficiary serves as a manager or executive pursuant to section 101(a)(44) of 
the Act merely because he has been given the title of "president" and has been attributed with pe forming "the 
duties of any president." The regulations require the petitioner to submit a detailed description f the specific 
duties to be performed by this individual beneficiary within the scope of the business op ated by this 
petitioning company. Going on record without supporting documentary evidence is not ufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N ec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of Cal@rnia, 14 I&N Dec. 190 (Reg. Comm. 19 1 2)). 
WAC 04 130 50691 
Page 7 
The definitions of executive and managerial capacity have two parts. First, the petitioner mu t show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Secon , the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and do s not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). As the petitioner has neither described the act a1 duties to be 
performed by the beneficiary nor indicated what percentage of time he devotes to manageri 1 or executive 
duties, it is impossible to conclude that his duties are primarily managerial or executive. 
i 
As noted by counsel, the director focused on the petitioner's staffing levels in determini 
beneficiary would be employed in a managerial or executive capacity. Pursuant to section 1 
the Act, 8 U.S.C. 5 1101(a)(44)(C), if staffing levels are used as a factor in determining whet 
is acting in a managerial or executive capacity, CIS must take into account the reasona 
organization, in light of the overall purpose and stage of development of the organization. 
that the director provided no basis for concluding that the petitioner's organizational struc 
to support a managerial or executive position. Counsel further states his belief that the dire 
the organizational chart carefully, noting that the chart clearly shows ten employees, 
appears to only acknowledge a total of five employees in his decision. Counsel states that 
employees are sufficient to relieve the beneficiary from performing non-qualifying duties. 
Jewelers, Inc. v. INS, 702 2. Supp. 1570, 1573 (N.D. Ga. 1988) in support of his assertion 
not intended to limit the term "executive" to those beneficiaries who supervise large businesses. 
Upon review, the AAO finds insufficient evidence in the record to establish the number of 
working for the petitioner at the time the petition was filed. While counsel claims that the 
ten employees, the petitioner stated on Form 1-129 that it employed nine employees as of 
has twice submitted an organizational chart depicting eight employees, including the 
above, the petitioner submitted its Forms DE-6, Employer's Quarterly Wage Report, 
2003. The petitioner claimed to employ Vesna Barrett as the manager of its 
petition was filed. The petitioner's Forms DE-6 show that she did not receive wages from the p 
May or June 2003. Similarly, the petitioner claims to employas a teacher, but 
shows that he received wages only in the second and third quarters of 2003. Absent 
Since the MO is unable to determine the petitioner's actual staffing levels, it cannot be 
petitioner employs sufficient employees to relieve the beneficiary from performing 
administrative and operational functions of operating two service-oriented businesses. 
AAO cannot conclude that these employees worked for the petitioner as of April 1, 2004. 
petitioner's other claimed employees did not receive wages in 2003. While it is possible that 
individuals were all hired during the first quarter of 2004, the petitioner has not submitted 
establish this fact. An organizational chart prepared by the petitioner is insufficient 
company's actual staffing levels, particularly when there are discrepancies in the record, such as 
that two of the petitioner's claimed employees stopped receiving wages in 2003. Again, going 
without supporting documentary evidence is not sufficient for purposes of meeting the burder 
these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
Four of the 
they these 
evidence to 
evidence of the 
the evidence 
on record 
of proof in 
WAC 04 130 50691 
Page 8 
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. fj 1101(a)(44). As discussed above, the petitioner has not establish d this essential 
element of eligibility. 
I 
Counsel cites Mars Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. 
proposition that the small size of a petitioner will not, by itself, undermine a finding that a 
in a primarily executive capacity. The AAO has long interpreted the regulations and 
discrimination against small or medium size businesses. However, the AAO has also 
petitioner to establish that the beneficiary's position consists of primarily managerial and 
that the petitioner has sufficient personnel to relieve the beneficiary from 
administrative tasks. 
Furthermore, counsel has furnished no evidence to establish that the facts of the instant 
to those in Mars Jewelers, Inc. v. INS. Additionally, in contrast to the broad 
law of a United States circuit court, the AAO is not bound to follow the 
district court in matters arising within the same district. See Matter of 
Although the reasoning underlying a district judge's decision will be 
properly before the AAO, the analysis does not have to be followed as a 
has not discussed the facts of the cited matter, it will not be considered in this proceeding. 
Counsel further asserts that the director "conveniently ignored the fact that six of the benefi 
subordinates have college degrees. Counsel appears to be arguing that the beneficiary 
pursuant to section 101(a)(44)(A)(ii) of the Act, as an employee who supervises 
professional employees. 
In evaluating whether the beneficiary manages professional employees, the AAO must 
subordinate positions require a baccalaureate degree as a minimum for entry into 
Section 101 (a)(32) of the Act, 8 U.S.C. fj 1 10 1 (a)(32), states: "The term 'profession' 
limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
schools, colleges, academies, or seminaries." The term "profession" contemplates 
merely skill, of an advanced type in a given field gained by a prolonged course of 
study of at least baccalaureate level, which is a realistic prerequisite to entry 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter of Ling, 13 
Matter ofshin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than 
by a subordinate employee. The possession of a bachelor's degree by a subordinate 
automatically lead to the conclusion that an employee is employed in a professional 
defined above. In the instant case, the petitioner has not established that a 
necessary, for example, to serve as a reading or math instructor in a learning 
music studio. 
WAC 04 130 5069 1 
Page 9 
Nor has the petitioner shown that the beneficiary manages subordinates who supervise 
members or manage a clearly defined department or function of the petitioner, such 
classified as managers or supervisors. As discussed above, the petitioner has not 
it employed its claimed staff at the time of filing, and therefore the AAO cannot 
two claimed managers. Thus, the petitioner has not shown that the 
supervisory, professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
The petitioner's claims in this matter are hindered by a lack of evidence. As the 
provided the comprehensive job description requested by the director, nor provided 
of its actual staffing levels, the AAO cannot conclude that the beneficiary will be 
managerial or executive capacity. For this reason, the appeal will be dismissed. 
An application or petition that fails to comply with the technical requirements of the law may 
AAO even if the Service Center does not identify all of the grounds for denial in the 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
appeals on a de novo basis). 
Beyond the decision of the director, the petitioner has not established that it maintair.~ 
relationship with the foreign entity as required by 8 C.F.R. 3 214.2(1)(3)(i). The petitioner 
subsidiary of the beneficiary's foreign employer, Yong Kang Ryu Tong Co. Ltd. The petitioner 
minutes of a special meeting of the board of directors dated December 1, 1999, which 
company issued 1,000 shares of stock to Yong Kang, Inc., a Korean corporation, for consideration 
in cash. The petitioner also submitted a stock certificate number one issued to Yong Kang, Inc. 
has not, however, established that "Yong Kang, Inc." and "Yong Kang Ryu Tong Co., Ltd 
company. The petitioner also submitted its 2003 IRS Form 1120, U.S. Corporation Inconle 
which indicates on Schedule K that no corporation owns 50 percent or more of its stock. 
petitioner submitted its 2003 Form 100, California Corporation Franchise or Income Tax 
indicates that the beneficiary owns 100 percent of the petitioner's stock. It is incumbent upon 
resolve any inconsistencies in the record by independent objective evidence. Any attemp: 
reconcile such inconsistencies will not suffice unless the petitioner submits competent 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
conflicting information, the AAO cannot conclude that the petitioner has a qualifying 
beneficiary's foreign employer. For this additional reason, the appeal will be dismissed. 
The petition will be denied for the above stated reasons, with each considered as an in ependent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility or the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, t at burden has 
not been met. 
i 
a qualifying 
claims to be a 
submitted the 
indicate that the 
of $50,000 
The petitioner 
" are the same 
Tax Return, 
Finally, the 
Return, which 
the petitioner to 
to explain or 
objective evidence 
Based on this 
relationship with the 
ORDER: The appeal is dismissed. 1