sustained L-1A Case: Food Import And Distribution

U.S. Department of Homeland Security 
20 Mass, Rrn. A3042.425 1 Street. N.W. 
Washingtan. DC 20529 
U.S. Citizenship 
data delekd tu and Immigration 
PRoeot dearly unwamte( 
personal ~rivaev 
FU: Office: VERMONT SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. # 1 IOl(a)(15)(E) 
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 mde to that office. 
obert P. Wiemann. ~irecfor 
Administrative Appeals Office 
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 director's decision will be 
withdrawn and the appeal will be sustained. 
The petitioner filed this nonirnmigrant petition seeking to employ the beneficiary as an L-LA nonirnmigrant 
intracompany transferee pursuant to 5 101(a)(15)(L) of the Immigration and Nationality Act (the Act). 8 
U.S.C. 8 1101(a)(15)(L). The petitioner is a corporation organized in the State of New York that is operating 
as a food import and distribution company. The petitioner claims that it is the subsidiary of the beneficiary's 
foreign employer, located in Pusan, Korea. The petitioner now seeks to employ the beneficiary as its general 
manager for three years. 
The director denied the petition concluding that the petitioner had not established that the beneficiary would 
be employed by the U.S. entity in a primarily managerial or executive capacity. 
On appeal. counsel claims that Citizenship and Immigration Services' (CIS) denial of the nonimmigrant 
petition is "clearly contrary to the facts of this case and to the ample and extensive evidence that has been 
submitted in support of this petition." Counsel explains that as general manager. the beneficiary would 
oversee fifty-three subordinate employees, including three department managers, and would not be 
performing the day-today operations of the U.S. business as determined by the director. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, 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. 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. 5 214.2(13(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 hirnlher 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 issue in the instant proceeding is whether the beneficiary would be employed by the U.S. entity in a 
primarily managerial or executive capacity. 
Section lOi(a)(44)(A) of the Act, 8 U.S.C. 8 1 IOl(aX#)(A), provides: 
The term "managerial capacity" means 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) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; 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-tuday 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 supel-visor's supervisory duties unless the employees supervised 
are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 I lOl(a)(44)(B), provides: 
The term "executive capacity" means 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. 
On the nonimmigrant petition filed on May 16, 2002, the petitioner stated that as general manager, the 
beneficiary would oversee the petitioner's daily business operations, including the planning, developing and 
implementalion of short and long-term goals. financial and budgetary planning, market research, and the 
hiring, firing and promotion of personnel. The petitioner noted on the petition that it employs fifty 
employees. In an accompanying letter dated April 30, 2002, the petitioner provided the following description 
of the beneficiary's responsibilities in the proposed position: 
As general manager of [the petitioning entity. the beneficiary] will have responsibility for 
overseeing, through the administration of subordinates, all aspects of this company's 
operations. This will include establishing hiring and firing and employee promotional 
policies, major financial and budgetary decisions, major decisions concerning advertising, 
marketing, sales and other promotional activities of the corporation to expand upon its market 
share, increase its level and volume of business and increase its corporate income and 
profitability. These activities will be accomplished through the setting and establishment of 
short tenn and long-term corporate goals, policies and objectives that [the beneficiary] will 
develop. 
The petitioner submitted an organizational chart for the U.S. entity identifying the beneficiary's position as 
subordinate only to the petitioner's president and vice-president. The beneficiary's immediate subordinates 
were identified on the organizational chart as the managers of the administration department, import 
department and distribution department. Each department was also shown to have one or two assistant 
managers and support staff, such as administrative assistants, bookkeepers, and secretaries. The petitioner 
also provided Form 941, Employer's Quarterly Federal Tax Return, for the quarters ending Septemhr 19W 
and December 2000, Form W-2, Wage and Tax Statement, for the year 2000, and its year 2000 Form 1120, 
U.S. Corporation Income Tax Return. 
On June 20, 2002, the director issued a notice of action requesting that the petitioner submit the following 
additional evidence: (1) an organizational chart for the U.S. entity identifying the beneficiary's managerial 
position; (2) a comprehensive description of the beneficiary's proposed job duties explaining how the 
beneficiary's job duties would be managerial or executive in nature, and demonstrating that the beneficiary 
would be employed at a senior level with a subordinate staff of professional. managerial. or supervisory 
personnel who would relieve him from performing non-qualifying job duties; (3) a description of the 
positions held by the beneficiary's subordinates; (4) documentation of the subordinates' educational 
credentials; and (5) a breakdown of the number of hours devoted to each of the employees' job duties on a 
weekly basis. 
In a response dated June 28, 2002, the petitioner stated that as general manager of a company with fifty-six 
employees, the beneficiary would be required to apply leadership skills to guide the personnel, evaluate 
employee strengths in order to assign personnel to the appropriate department, act upon subordinate 
managers' recommendations for hiring, firing and promotions, analyze the costs for department operations, 
including labor, facilities, inventory and supply costs, engage in cost analysis, evaluate the products and 
pricing of the petitioner's competitors, and guide the U.S. company so as to ensure its competitiveness and 
profitability. The petitioner explained the beneficiary would fulfill these expectations by performing the 
following job duties: 
The General Manager of [the petitioning organization] will have responsibility, working with 
the three company department managers and this company's senior management, for the 
development and implementation of company budgets and financial objectives, cost controls 
and related plans and programs for an expansion and increase in the ievel of operating 
profitability of this company through greater and more efficient use of company resources 
and the elimination of waste and unnecessary expenditures. This will require continuous and 
constant oversight, monitoring and examination of each department's activities and financial 
performance, including comprehensive internal department inventory, payroll and other 
audits. This will require an examination and analysis of the activities, products, income, 
expenditures and prices of each department of this company so that we can develop, 
implement and revise plans and strategy that will allow this company to operate at the most 
profitable level possible. Upon this analysis, the General Manager will make decisions and 
give instructions and orders to the three company Department Managers where changes in 
operating procedures are required and new procedures and policies are implemented. The 
General Manager will be required to render a comprehensive business and fiscal examination 
and analysis of the activities products, pricing and marketing of this company's competitors, 
from information received from our department staff, and develop and implement instructions 
to our department managers plans and strategies to meet that competition and enlarge our 
market share. 
As General Manager of [the petitioning organization, the beneficiary] will have responsibility 
for overseeing, through the supervision of subordinate department managers, all aspects of 
this company's day-today business operations, including hiring and firing and employee 
promotional policies, major financial and budgetary decisions, major decisions concerning 
advertising. marketing, sales and other promotional activities of the corporation to expand its 
market share, increase its level and volume of business and increase its corporate income and 
profitability, through the setting and establishment of long term and short term company 
goals, policies and objectives. The General Manager will meet with the company President 
and Vice-President on a regular basis to review various problems and issues the company is 
facing, discuss and decide on actions to be taken on both present and new business activities. 
meet with company department managers and assistant managers in group and individual 
meetings and group conferences. The General Manager will provide instruction, guidance 
and supervision to subardinate managerial staff when errors are made or company operating 
procedures should be modified to improve overall company operating efficiency. The 
General Manager will review and approve documentation prepared by subordinates or 
.requiring action or approval at the senior managerial level in accordance with company 
policies. 
The General Manager will meet with government regulatory personnel during company 
inspections. The General Manager will communicate with outside personnel including our 
company attorneys and accountants and financial institutions as necessary in furtherance of 
the company's operations and objectives. 
The petitioner also provided the following allocation for the time the beneficiary would spend on his 
specific job duties: 
1. Meetings with the company President and Vice-President and acting upon those meetings, to 
review various problems the company is facing. discuss and decide on actions to be taken on 
new business activities, maintain and enhance existing business contracts and relationships, 
major budgetary and financial allocation decisions, such as employee hiring and firing and 
promotions, major purchases, such as major capital expenditures. An example of this would 
be a proposed renovation of our corporate premises. the dismissal of a manager or employee 
for misconduct or mismanagement, entering into a major advertising contract, etc.. as well as 
miscellaneous legal, accounting, personnel and other business matter. 10-15 hours per week. 
Page 6 
2. Meeting with this company's staff of department managers, assistant managers, 
administrative assistants and other employees concerning import and distribution activities, 
sales and marketing activities and other company administrative matters, in both group and 
individual meetings and group conferences, to discuss such matters as assignments, review of 
employee performance. communicating to departmental managerial staff and to enlployees 
[sic] decisions that have been made on all aspects of this company's operations; reviewing, 
improving and modifying proposed company expenditures and payments, discussing and 
giving instructions and direction on a variety of company matters, including business ' 
transactions with both present and future customers and clientele companies, marketing and 
advertising activities, company personnel matters and other various administrative matters 
that require implementation through direction and guidance to our company departmental 
staff. 15-20 hours per week. 
3. Communications and meetings with outside business personnel, including our company's 
accountants, attorneys, senior management of major customers and clients, senior advertising 
and marketing personnel, banking and financial institution officials, and reviewing various 
company documents. 10-15 hours per week. 
The petitioner further provided job descriptions for the beneficiary's three lower-level managers, and 
submitted diplomas and certifications of the advanced degrees held by each. 
In a decision dated January 9, 2003, the director concluded that the petitioner had failed to demonstrate that 
the beneficiary would be employed by the U.S. entity in a primarily managerial or executive capacity. The 
director stated that the petitioner's vague description of the beneficiary's job duties "does not expound on the 
day-today activities of the beneficiary," and noted that the petitioner merely paraphrased the regulatory 
definitions of managerial capacity and executive capacity. The director also stated that the beneficiary's three 
subordinate managers do not appear to be professionals, and therefore concluded that the beneficiary would 
not be employed at a senior level in the U.S. organization. The director further noted that it appeared the 
beneficiary would likely be engaged in the non-managerial, daily operations of providing the petitioner's 
products or its services. Accordingly, the director denied the petition. 
In an appeal filed on February 6, 2003, counsel claims that CIS' denial of the instant petition was contrary to 
the facts and evidence submitted in support of the nonjrnmigrant petition. Counsel states that the beneficiary, 
as general manager, would be employed in the petitioner's "third most senior position" with fifty-three 
lower-level employees. Counsel explains that the beneficiary would oversee three department managers, each 
of who are performing a professional function within the overall operations of the petitioning organization. 
Counsel also challenges the director's determination that the record lacked an adequate description of the 
beneficiary's proposed job duties. Counsel states that the petitioner submitted a detailed statement of the 
beneficiary's job duties in response to the director's request for evidence, and restates some of the job duties. 
which counsel asserts the beneficiary would be performing in a managerial capacity. Counsel contends that 
the evidence, including documentation of the petitioner's $26.5 million annual gross revenue and its large 
personnel structure, demonstrates that the beneficiary would be employed in a primarily managerial capacity. 
On review, the record supports a finding that the beneficiary would be employed by the U.S. entity in a 
primarily managerial or executive capacity. 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. 
4 2 14.2(1)(3)(ii). As required in the regulations, the petitioner must submit a detailed description of the executive 
or managerial services to be performed by the benef~iary. Id. 
The job description submitted by the petitioner clearly outlines the job duties to be performed by the 
beneficiary in a managerial and executive capacity. The job description submitted by the petitioner in 
response to the director's request for evidence specifically addresses how the beneficiary would be employed 
in a qualifying capacity. including such job responsibilities as monitoring and analyzing the performance, 
activities. products, income and expenditures of the petitioner's administration, import, and distribution 
departments, instructing his subordinate managers of changes in operating procedures and policies, 
developing programs to increase the petitioner's competitiveness and profitability. and handling all personnel 
matters, such as hiring, firing, and promoting employees. Equally as important, the petitioner sufficiently 
documented the job responsibilities of the petitioner's three lower-level managers, This information is 
relevant and necessary in order to determine whether the beneficiary will, in fact, be relieved from performing 
the nonqualifying daily functions of the petitioning organization. The petitioner's description of the 
managers' job duties and documentation of lower-level employees demonstrate that the three managers and 
each department's support staff would perfonn the daily activities of the business, such as executing daily 
financial transactions, purchasing and importing goods, and conducting sales. The record is therefore 
persuasive in establishing the beneficiary's proposed employment in a primarily managerial and executive 
capacity. The director's decision on this issue will be withdrawn. The appeal will be sustained. 
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, that burden has been met. Accordingly. the 
director's decision will be withdrawn and the petition will be approved. 
ORDER: The appeal is sustained.