remanded L-1B Case: Computer Storage Systems

TN RE: Petitioner: 
Beneficiar: 
Petition: Petition fo 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(li)(L) 
IN BEHALF OF PETITIONER: 
:R Date: 
~f the Immigra 
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. 
Robert P. Wiernann, Director 
Administrative Appeals Office 
WAC 04 075 52806 
Page 2 
DISCUSSION: The Directoe California Service- Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be remanded to the 
director to request additional evidence and entry of a new decision. 
The petitioner seeks to change the beneficiary's status from manager or executive (L-IA) to specialized 
knowledge worker (L-IB) and extend his period of stay as a nonimmigrant intracompany transferee pursuant 
to section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L). The United 
States petitioner, a corporation organized in the State of California, is engaged in research, development, and 
sale of computer storage systems and claims to be the subsidiary of, located in Seoul, Korea. 
The beneficiary was initially granted a one-year period of stay as an L-1A nonirnmigrant manager or 
executive to open a new office in the United States. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erroneously 
based his decision on an incorrect standard. Specifically, the petitioner alleges that it filed a petition to 
change the beneficiary's status from manager or executive (L-1A) to specialized knowledge worker (L-1B) 
and extend his period of stay as a nonimmigrant intracompany transferee, but the director treated the petition 
as a request for an extension of the beneficiary's stay as a manager or executive. The petitioner concludes that 
the director's determination that the U.S. entity did not support a managerial or executive position was 
inapplicable to the evidence presented regarding the beneficiary's qualifications as an intracompany transferee 
with specialized knowledge and therefore requests reconsideration of the petition in relation to the applicable 
regulation. In support of this assertion, counsel submits a brief statement on the Form I-290B and additional 
evidence. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering 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. 3 214.2(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. 
WAC 04 075 52806 
Page 3 
(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 himher 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. 
In addition, the regulahon at 8 C.F.R. $ 214.2(1)(14)(ii) provides that a visa petition under section lOl(a)(lS)(L) 
which involved the opening of a new office may be extended by filing a new Form 1-129, accompanied by the 
following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (I)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
parapph (I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and 
the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number 
of employees and types of positions held accompanied by evidence of wages 
paid to employees when the beneficiary will be employed in a managerial or 
executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 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. 5 214.2(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. 
WAC 04 075 52806 
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The L Supplement to Form 1-129 clearly indicates that the petitioner is seeking to employ the beneficiary as 
an intracompany transferee with specialized knowledge.' As set forth above, the proper standard for 
determining whether the petitioner is qualified for the benefit sought is whether the beneficiary possesses 
specialized knowledge 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. The director, however, reviewed the petition as a 
request to extend the beneficiary's status as an L-1A manager or executive and relied on the definitions of 
managerial and executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
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. 5 1101(a)(44)(3), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
1 Although the petitioner indicated on the L Supplement to Form 1-129 that it sought to employ the 
beneficiary as an intracompany transferee with specialized knowledge, the petitioner failed to indicate that a 
change of status from L-1A to L-1B was being requested. In fact, in Part 2 of Form 1-129, the petitioner 
indicated that (1) "L-1" classification was requested, without specifying which specific L status was being 
petitioned for; (2) it sought a continuation of the beneficiary's "previously approved employment without 
change;" and (3) it was requesting an extension and not a change of the beneficiary's current status. Despite 
the petitioner's apparent errors in its completion of Form 1-129, however, it did clearly indicate on the L 
Supplement to Form 1-129 and Iater in its response to the request for evidence that a change to L-IB 
classification was being requested. 
WAC 04 075 52806 
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(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. 
The director denied the petition, finding that the evidence in the record did not support a finding that the 
beneficiary would be employed in a primarily managerial or executive capacity. The director noted that the 
beneficiary would be performing many of the duties necessary to providing the service of the business, and 
further found that the beneficiary would not be supervising a staff of subordinate managers, professionals, or 
supervisors who would relieve him from performing non-qualifying duties. 
In this case, the director clearly treated the petition as a request for an extension of a new office based on the 
beneficiary's continued status as an L-1A manager or executive. However, the record indicates that the 
petitioner filed an extension request while simultaneously requesting to change the beneficiary's status from 
an L-IA manager or executive to an L-1B intracompany transferee with specialized knowledge. The director, 
however, failed to review the petition for compliance with the regulatory definition of specialized knowledge 
set forth at 8 C.F.R. 8 214.2(1)(l)(ii)(D). The director requested additional evidence in support of the 
beneficiary's qualifications as a manager or executive on February 12, 2004. Despite the petitioner's 
response, which clearly stated that the issue of whether the beneficiary was functioning as a manager or 
executive was not relevant since the petitioner was seeking classification of the beneficiary as an 
tntracompany transferee with specialized knowledge, the director denied the petition based on the 
insufficiency of the evidence to establish that the beneficiary was qualified as a manager or executive. On 
appeal, counsel for the petitioner reiterates once again that the petitioner is seelung to change the beneficiary's 
classificat~on to an intracompany transferee with specialized knowledge, and requests consideration of the 
evidence submitted which counsel asserts establishes that the beneficiary possesses specialized knowledge of 
the company's products and procedures. 
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is remanded to 
the director for consideration of the issue stated above. The director may request any additional evidence 
considered pertinent. Similarly, the petitioner may provide additional evidence within a reasonable period of 
time to be determined by the director. Upon receipt of all the evidence, the director will review the entire 
record and enter a new decision. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further action in 
accordance with the foregoing and entry of a new decision, which, if adverse to the petitioner, is to be 
cert~fied to the AAO for review.