dismissed L-1B Case: Agricultural Equipment

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Avc., N.W.. Rln. A3042 
Washmgton, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: SRC 03 242 50076 Office: TEXAS SERVICE CENTER Date: JUN 2 8 2005 
PETITION: Petition for a Nonimmigrarlt Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(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. 
SRC 03 242 50076 
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DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the evidence contained in the record, the petitioner was established in the United States in 2002 
and claims to be an import and export vender and 
The etitioner claims to be a joint venture created betwee 
located in Greece. The 
ernporan y in t e United States as an operations manager for a period of three years, at a yearly salary of n 
$28,000.00. The director determined that the evidence submitted was insufficient to establish that the 
beneficiary had been or would be employed by the U.S. entity in a specialized knowledge capacity or that the 
position being offered to the beneficiary requires the services of an individual possessing specialized 
knowledge. The beneficiary was initially granted a one-year period of stay as an 1,-1A manager or executive 
to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay as an L- 
1B alien with specialized knowledge. 
On appeal, counsel disagrees with the director's decision and states that the evidence is sufficient to establish 
that the beneficiary has been and will be employed in a specialized knowledge capacity. 
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. Q: 1 10 1 (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. 214.2(1)(l)(ii) states, in part: 
Intrucotnpny transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. tj 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. 
SRC 03 242 50076 
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(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 serves 
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 this proceeding is whether the petitioner has submitted sufficient evidence to establish that the 
beneficiary had been and will be employed by the U.S. entity in a specialized knowledge capacity and that the 
position being offered to the beneficiary requires the services of an individual passessing "specialized 
knowledge" as defined in the Act and the regulations. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 9 1184(c)(2)(B), provides the following: 
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity 
involving specialized knowledge with respect to a company if the alien has a special 
knowledge of the company product and its application in international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 4 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management, or other interests and its application in 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes and procedures. 
In a letter dated August 15, 2002, the petitioner described the beneficiary's position in the United States as: 
[The beneficiary] will serve as the General Manager o In this 
capacity, he will be responsible for the success of the business. In addition to coordinating 
will coordinate the relationship betwee -n 
n the United States an-in Greece and will be 
of the United States business. 
In response to the director's request for evidence on the subject, counsel for the petitioner stated that the 
beneficiary had been employed by the foreign entity from June 1994 through October 2000 as a mechanical 
technician. Counsel further stated that the beneficiary had extensive training and six years of experience as a 
mechanic specializing in servicing and maintaining agricultural equipment and in coordinating sales and 
services. Counsel also stated that the beneficiary had received tcchnical training at the Organization for the 
Training of the Workforce in Greece, from which he received his certificate of completion in 1992. Counsel 
described the beneficiary's current duties as: 
Employee Supervision; 
Mechanical Maintenance; 
Purchase and restoration of cotton pickers: 
Handles all parts and equipment shipping and distribution; [and] 
Responsible for all order processing of new and used parts. 
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Counsel also requested that Citizenship and Immigration Services (CIS) amend the petition to reflect that the 
L-1B classification was the appropriate one sought by the petitioner on behalf of the beneficiary. 
The petitioner submitted copies of the U.S. entity's organizational chart. The chart depicted a general 
manager over the direction of the beneficiary as operations manager and mechanic, who in turn directed the 
services of two machine shop helpers. The chart also showed the general manager over the direction of a 
sales manager, who in turn supervised a secretary. The petitioner also submitted a list of U.S. employees, 
along with their job titles, salaries, and job descriptions. The petitioner described the beneficiary as an 
operations manager and mechanic who earns $600.00 per week overseeing two machine shop helpers, 
purchasing and restoring cotton pickers, and handling ail parts and equipment shipments and distributions. 
The petitioner stated that the beneficiary was also responsible for processing all orders dealing with new and 
used machine parts. The petitioner described the machine shop helpers as assisting the beneficiary with the 
mechanics, cleaning shop, and running machine parts for the company. 
The director subsequently denied the petition, determining that the record was insufficient to establish that the 
beneficiary had been and will be employed by the U.S. entity in a specialized knowledge capacity and that the 
position being offered to the beneficiary requires the services of an individual possessing "specialized 
knowledge." The director noted that the beneficiary's duties outlined by the petitioner did not appear to be 
significantly different from those of any other mechanic in the industry. The director also noted that the 
petitioner had failed to establish that the duties, as described, warranted the expertise of one possessing 
specialized knowledge. 
On appeal, counsel disagrees with the director's decision and asserts the beneficiary possesses specialized 
knowledge and that this knowledge must be considered in relation to his knowledge and expertise with the 
U.S. entity's mechanical equipment, not that of another company or an individual who works for another 
company. Counsel further asserts that the beneficiary performs with specialized knowledge for the U.S. 
entity. Counsel also asserts the beneficiary was employed by the foreign entity for six years, during which 
time he was familiar with and responsible for the entity's mechanical, sales, service, and management 
processes. Counsel asserts the beneficiary was essential to the success of that part of the foreign business' 
operation, and therefore, "a key employee." Counsel cites Matter of Penner to substantiate his claim. 
Counsel claims that with the transfer of much of the mechanical functions of the foreign entity's operation to 
the U.S. entity, the beneficiary is essential to the U.S. business as well. Counsel describes the beneficiary's 
duties as "solely responsible for the maintenance and restoration for the equipment sold to its clientele." 
Counsel contends that the majority of the petitioning entity's clientele is Greek, and that it therefore requires 
the services of an employee who possesses a unique combination of knowledge of the mechanical workings 
of the company's equipment and the Greek language. Counsel further contends no other employee besides 
the beneficiary possesses such unique qualities, and that therefore; his knowledge is "specialized and key." 
Counsel also contends the beneficiary is employed by the U.S. entity in a primarily managerial or executive 
capacity. 
On review, the assertions of counsel are not persuasive. Although counsel states that the petitioner is 
petitioning for L-IB intracompany hansferee (an employee with specialized knowledge) status for the 
beneficiary, the record does not substantiate its claim. Without documentary evidence to support the claim, 
the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do not 
constitute evidence. Matter (~fUbaigbma, 19 I&N Dec. 533, 534 (BIA 1988); Matter Of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter 0J Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Doubt cast on any 
SRC 03 242 50076 
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aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Mutter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
There has been insufficient evidence presented to demonstrate that the beneficiary will be employed in a 
specialized knowledge capacity or that the beneficiary is to perform a job requiring specialized knowledge in 
the proffered position. 
The beneficiary's duties have been described as "employee supervision, mechanical Maintenance, purchase 
and restoration of cotton pickers, handles all parts and equipment shipping and distribution, [and] responsible 
for all order processing of new and used parts." These duties do not involve a specialized knowledge of the 
petitioning organization's product, service, research, equipment, techniques, management, or other interests. 
The petitioner noted that CIS approved other petitions that had been previously filed on behalf of the 
beneficiary. The director's decision does not indicate whether he reviewed the prior approvals of the other 
nonimmigrant pet~tions. If the previous nonimmigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. The AAO is not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that 
may have been erroneous. See, e.g, Matter of Clirtrch Scienrologv hternutional, 19 I&N Dec. 593, 597 
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd v. Monfgornrry, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 
485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. L~uisian~r Philharmonic Orchestru v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
200 I), cert. denied, 122 S.Ct. 5 1 (2001). 
Although not directly addressed by the director, another issue is whether the beneficiary has been and will be 
employed by the U.S. entity in a managerial or executive capacity. 
Counsel asserts on appeal that the beneficiary performs managerial and executive duties as well as duties that 
require specialized knowledge. In response to the director's request for evidence, the petitioner requested that 
the beneficiary be considered as a specialized knowledge employee. On appeal, counsel is requesting that the 
beneficiary also be considered for classification as a managerial or executive employee. 
CIS regulations affirmatively require a petitioner to establish eligibility for the benefits it is seeking at the 
time the petition is filed. See 8 C.F.R. 5 103.2(b)(12). If the petitioner believed that the beneficiary was 
eligible for this nonimmigrant visa classification as an employee who was employed in a managerial or 
executive capacity, the petitioner was required to request such classification when filing the petition. See 
Matter c!f Michelin Tire Corp., 17 T&N Dec. 248, 249 (Reg. Comm. 1978). In this matter, counsel clearly 
indicated that the petitioner sought L-1B classification for the beneficiary. A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Furthennore, the purpose of the request for 
evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. 103.2(b)(8). A visa petition may not be approved at a future date after the petitioner 
or beneficiary becomes eligible under a new set of facts. Matter of Michefin Tire Corp., supra. If the 
SRC 03 242 50076 
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petitioner wishes to seek classification of the beneficiary as an L-1 A intracompany transferee, the petitioner 
must file a new petition rather than seek approval of a petition that is not supported by the facts in the record. 
Even if the beneficiary's eligibility for managerial or executive status where before the AAO, the evidence 
submitted by the petitioner would be insufficient to establish that the beneficiary's duties have been or will be 
primarily managerial or executive in nature. The evidence demonstrates that the beneficiary is a machine 
mechanic who supervises two machine shop helpers and who is involved in the sale and distribution of the 
U.S. entity's agricultural machines. The record does not show that the beneficiary has been or will be 
managing a subordinate staff that is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. A first-line supervisor wiIl not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
professional. Section 10l(a)(44)(A)(iv) of the Act. Because the beneficiary is primarily supervising a staff of 
non-professional employees, the beneficiary cannot be deemed to be primarily acting in a managerial 
capacity. 
Contrary to counsel's contentions, there is no evidence in the record to show that the beneficiary has been or 
will be performing an essential function of the organization. The term "function manager" applies generally 
when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the 
Act, 8 U.S.C. $ 1101(a)(44)(A)(ii). In this matter, the evidence shows that the beneficiary will be performing 
the functions rather than managing the same. Furthermore, even though the petitloner claims that the 
beneficiary is primarily in charge of the maintenance department within the U.S. entity, it does not claim to 
have anyone on its staff to actually perform the maintenance and restoration functions of the organization. 
The petitioner described the shop helper's duties as: "assisting [the beneficiary] with mechanics." Thus, 
either the beneficiary himself is performing the functions or he does not actually manage the functions as 
claimed by the petitioner. For these additional reasons, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought rests solely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.