dismissed L-1A Case: Art Gallery

U.S. Department of Homeland Seeurit? 
20 Mass Ave . N W . Rm. A3042 
LVash~ngion. DC 20529 
~&glt&@dstadM to 
pl!wabarlg~ U.S. Citizenship 
iymdabdm- and Immigration 
Services 
F~le: WAC 02 284 55201 Office: CALFORNIA SERVICE CENTER Date. NOV 2 8 200/ 
IN RE: Petttioner. 
Benefic~ary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigrat~on 
and Nationality Act, 8 U.S.C. 8 I I0 1 (a)(lS)(L) 
INSTRUCTIONS: 
Thts IS the declslon of the Administrative Appeals Office in your case. All documents have been returned to 
I 
the office that orlgtnally dectded your case. Any further lnqulry must be made to that office. 
k] Adrnlnlstrat~ve Appeals Office 
WAC 02 284 55201 
Page 2 
DTSCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss.the appeal. 
The petrtloner filed thls non~mm~yant petltion seek~ng to extend the employment of its president and general 
manager as an L-1A nonlmmlgrant intracornpany transferee pursuant to sect~on 101(a)(15)(L) of the 
Irnmlgrat~on and Nationality Act (the Act), 8 U.S.C. 8 1 101(a)(15)(L). The petitloner 1s a corporation 
organized in the State of Califomia that operates a.smal1 gallery 
and collectibles. The petitioner claims that it is the subsidiary of 
Fukuoka, Japan. The beneficiary was initially granted a one-ye 
subsequently granted a two-year extension of stay. The petitioner now seeks to extend the beneficiary's stay 
for an additional three-year per~od. 
The d~rector denied the pet~t~on conclud~ng that the petltloner dld not establish that the beneficiary has been or 
would be employed in the Un~ted States In a pnmanly managerial or executrve capaclty. 
The petitloner subsequently filed an appeal. The director decllned to treat the appeal as a motion and 
forwarded the appeal to the AAO for revlew. On appeal, counsel for the petit~oner disputes the find~ngs of the 
director's declston and asserts that the dlrector did not include an adequate analysrs of the reasons for dental. 
Counsel further states that the evrdence submitted clearly demonstrates that the benefic~ary serves In a 
managerial and executive capaclty. In support of these assertions, the petltloner submlts add~t~onal evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must .meet the criteria 
outlined i'n' 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 io continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive; or 
specialized knowledge capacity. 
Thc regulation at 8 C.F.R. § 214.2(1)(3) states that an indibidual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ ;he 
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. 
(111) Ev~dence that the ahen has at least one contmuous year of full trme employment 
abroad with a quahfying organlzatlon wrthin the three years preced~ng the fillng of 
the petition. 
WAC 02 284 55201 
Page 3 
(IV) Ev~dence that the alien's pnor year of employment abroad was In a posltlon that was 
manager~al, execut~ve or involved spec~allzed knowledge and that the allen's prlor 
educat~on, tralnlng, and employment qual~fies hlmker to perform the Intended 
servlces tn the Un~ted States; however, the work m the Unlted States need not be thc 
same work whlch the allen performed abroad. 
At issue in the present matter 1s whether the benefic~ary wlll be employed by the Unlted States entity m a 
pr~marily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 6 1101(a)(44)(A), defines the term "manager~al capac~ty" as an 
assignment wtthln an organlzation m whlch the employee primarily: 
(I) manages the organlzatlon, or a department, subd~vision, function, or component of 
the organlzatlon; 
(11) supervises and controls the work of other supervisory, profess~onal, or managerial 
en~ployees, or manages an essential functton w~thln the organlzatlon, or a department 
or subdiv~s~on of the organ~zat~on; 
(111) ~f another employee or other employees are dlrectly supervlsed, has the authority to 
hlre and fire or recommend those as well as other personnel actlons (such as 
promotion and leave authorizat~on), or ~f no other employee IS dlrectly supervlsed, 
functions at a senlor level wlthln the organlzat~onal hierarchy or w~th respect to the 
funct~on 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 profess~onal. 
Sect~on 101(a)(44)(B) of the Act, 8 U.S.C. 1101(a)(44)(B), defines the term "executive capac~ty" as an 
assignment w~thln an organlzat~on rn whlch the employce prlmar~ly: 
(I) directs the management of the organlzation or a major component or functlon of the 
organlzation; 
(11) establishes the goals and policies of the organizat~on, component, or funct~on; 
(iii) exercises widelatitude in discretionary decision making; and 
(IV) receives only general supervlslon or direction from h~gher level execuhves, the board 
of d~rectors, or stockholders of the organlzat~on. 
WAC 02 284 55201 
Page 4 
In the ln~tial petition, the pet~tioner submitted a letter dated September 20, 2002, whlch described the 
benefic~ary's job duties as follows: 
(1) General Mana~ement: As a major strategic move, [the benefic~ary] directed to lease a retall space 
for Gallery Tokusa w~thln the grounds of Hawall's venerable "five star" hotel, the Halekulan~, located 
In Wa~k~ki. . . .Under the dlrectlon of [the beneficiary], certain lnternat~onally recognized artlsts have 
been featured at Gallery Tokusa such as the world famous rmarr ceramist, Imaizum~ Imaemon XIII, a 
nat~onal llvmg treasure of Japan, and other s~mllar events lnvolvrng Japanese antique ceramlcs and 
collectibles. 
(2) Marketing Management: In the past year, [the benefic~ary] has done much In the marketing 
~nfiastructure area. Most recently, under an amb~t~ous corporate strategic plan, [the beneficiary] 
expanded the busmess of [the petitioner] by creatrng and d~rectrng a websrte for antrques to be sold to 
a worldw~de market. 
(3) Personnel Mana~ement: [The beneficiary] contlnues to hold the company's highest position and 
w~ll have full authority, without dlrect supervlslon, to make day-to-day decisions. Slnce 
commencement of operation In 1999, [the pet~tioner] has hued five employees whom are all citizens 
andlor lawful permanent residents of the U.S. At this time, [the benefic~ary] contlnues to exerclse her 
dally discret~on of personnel management to hrre, tram and direct the act~vltres of the employees 
while malntalning her other responsib~lities as follows. 
(a) Analyzing planning, dtrecting and coordinating all operational, adm~nistrative and financial 
actlvitles, lncludlng capltal expenditures and payroll budgets; 
(b) Appraisrng and purchas~ng antiques and collect~bles sold at Gallery Tokusa from various 
sources m Japan; 
(c) Planning and implementing [the pet~t~oner's] proposed plans in relatron to ~ts overall business 
goals and ~ts long-term planning andlor mod~ficat~on of the same as required by [the fore~gm 
entity]; 
(d) Formulating and implementing standards, pol~c~es and procedures In line w~th [the forelgn 
entltyl. 
(e) All other dutles Incidental to (a) thorough (e). 
The pet~tioner also noted the company's achievement ofgross Income of $1 19,566 and $66,852 for 2000 and 
2001, respect~vely, as ev~dence of the beneficiary's financ~al management dutres and overall responslbll~ty for 
the company's performance. 
On November 5, 2002, the director requested additional evrdence to establ~sh that the beneficiary 1s employed 
as a manager or executive. Spec~fically, the d~rector requested (1) the U.S. company's organ~zatronal chart 
clearly ~dent~fytng all employees, along with a br~cf descrrpt~on of job duties, educat~onal level, annual 
sales/wages and ~mmlgratlon status, and source of remunerat~on (salary, wage or commission) for all staff 
supervrsed by the beneficiary; and (2) a more detalled description of the benefic~ary's job dut~es, ~ncluding the 
percentage of time spent In each duty. 
WAC 02 284 55201 
Page 5 
In response. the pet~tloner submrtted a letter dated January 1 1, 2003, wh~ch Included the following descnptlon 
of the beneficlary's job duties: 
1 
fThe benefic~ary] currently serves as [the petltloner's] president In charge of general 
operatlons. As President, [the beneficlary] not only dlrects thc management of [the 
petitloner], but she also supervises and controls the work of five (salary -t commlss~on) 
employees. . . . [The beneficlary] has authority to hlre, fire and recommend personnel actlons 
as [the pet~t~oner's] prestdent and exercises discret~on over the day-to-day operatlons of the 
company 
As an executive, [the beneficiary] is also responsible for establishing goals and policies of 
[the petitioner]. Discretionary decisions concerning [the petitioner] are exercised entirely by 
[the beneficiary]. The only general direction [the beneficiary] receives is from [the foreign 
entity] and its shareholders, of which [the beneficiary] is among one of the four shareholders. 
In addition, (the beneficiary] serves as [the petitioner's] buyer. 'Her duties as buyer include 
maintaining inventory, ordering from various dis&ibutors, handling special orders, Internet 
research of merchandise, fielding questions about products, completing mark-down of retail 
prices, keeping competitive watch over educational market, and meeting with vendors. . 
The percentage of time [the beneficiary] spends in each of her duties are: 
As stated In the January 11, 2003 letter, the pet~tloner's additional staff ~ncludes: (1) a manager respons~ble 
for general adrn~nlstration and sales, who receives a salary of $6,500; (2) an assistant manager responstble for 
admln~stratlon, scheduling and sales, who rece~ves a salary of $5,500; and (3) three sales staff who are 
respons~ble for sales, merchandise d~splay, Inventory and customer llst rnamtenance, who receive salanes 
ranglng from $1,000 to $5,500. An organizational chart submitted w~th the letter depicts these employees 
Duties 
Analyzing, planning, directing and coordinating all operational, adminlstrattve and 
financial actlv~hes, ~ncludlng cap~tal expenditure and payroll budgets 
Apprais~ng and purchasing antlques and collect~bles sold at Gallery Tokusa from 
various sources In Japan 
Personnel management, lncludlng Traln~ng staff in the special~zed knowledge and 
hlstory of techn~ques. 
Plann~ng and ~mplementing [the petitloner's] proposed plans In relatlon to ~ts overall 
busmess goals and ~ts long-term plannlng andlor mod~licat~on of the same as 
requlred by Tallma Japan 
Meetlng and d~scussing legal and financial matters with [the petitioner's] attorney 
and accountant on all Important legal and financ~al matters; attending meetings at 
"Soclety of As~an Arts of Hawan", offerlng lectures at Honolulu Academy of Arts. 
Formulating and ~mplementlng standards, pollcies and procedures In hne w~th 
Tajlma Japan 
% of Time 
25% 
25% 
20% 
15% 
14% 
1% 
WAC 02 284 55201 
Page 6 
along with two vice presidents, who do not appear to receive a salary or report to the beneficiary. It isnoted 
that the individuals identified as vice presidents are shareholders of the foreign entity. 
On September 18, 2003, the dlrector denled the petltlon concluding that the beneficlary's dutles wlll not be 
prlmarlly managerla1 or executive In nature. The director specifically noted that the beneficlary's subordinate 
staff 1s not comprised of managers or professionals, and that she would perfom non-qualifying dutles In her 
capac~ty as the petitloner's buyer. 
On appeal,. counsel for the petitioner asserts that the director's denial consists of mere conclusions without 
analysis of the facts or relevant statute. Counscl contends that the evidence submitted prior to adjudication is 
sufficient to demonstrate that the beneficiary is employed as both a manager and 'an executive. Counsel also 
notes that the beneficiary has two previous L-1A approvals based on the same facts, and submits copies of the 
supporting letters which accompanied the previous 1-1 29 petitions submitted on behalf of the beneficiary. In 
support of the appeal. the petitioner also submits two letters from individuals who are acquainted with the 
beneficiary in .a professional capacity, attesting to her success as the petitioner's manager. Finally, the 
petitioner submits the sworn statement of ~r a certitied public accountant who states that he 
has served as the non-salaried vice pesident of the petitioner since 1999. In the statement, dated ~ovember 5, 
2003, Mrfurther describes the beneficiary's specific duties within the petitioner's organization. 
Upon reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been 
or will be employed In a 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. 3 214.2(1)(3)(ii). The petitioner's description of the .job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. In this case, the petitioner claims that the beneficiary qualifies as both a manager and an 
executive. However, the petitioner cannot rely on partial sections of the.'two statutory definitions under 
sections 101(a)(44)(A) and (B) of the Act. The petitioner must establish that the beneficiary meets each of the 
"four criteria set forth in the statutory definition for executive and the statutory definition for manager if it, is 
representing that the beneficiary is both an executive and a manager. In addition, the definitions of executive 
and managerial capacity have two parts. First the petitioner must show that the bcneficib perfornis the high- 
level responsibilit~cs that are specified in the definitions. Second, the petitioner must prove .that the 
benefic~ary primarily performs these specified responsibilities and does not spend a majority of his or her time 
on day-to-day functions. Chatnpion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470.(9"' Cir. July 
30, 1991). 
Based on the current record, the AAO is unable to determine whether the claimed managerial and.executive 
duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily'perforrns non- 
managerial operational duties required for the day-to-day operation of the business. Although the petitioner 
complied with the director's request that it assign a percentage of time to each duty performed .by the 
beneficiary, the breakdown of responsibilities provided by the petitioner raises questions as to whether the 
beneficiary could be performing primarily qualifying managerial or executive duties. Fwt of all, the 
petitioner indicated that the beneficiary devotes a full 25 percent of her t~me to "appraising and purchasing 
antiques and collectibles sold at Gallery Tokusa from various sources in Japan." In other words, she is 
WAC 02 284 55201 
Page 7. 
dlrectly responstble for ordering the merchandtse that is displayed and sold tn the petitioner's retall store It is 
noted that an employee who prlmartly performs the tasks necessary to produce a product or to prov~de 
servlces IS not considered to be employed in a managerial or executive capacity. Matter of Chzrrch 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Second, the record indicates that the 
beneficiary is also responsible for "maintainmg inventory, ordenng from varlous d~stributors, handllng speclal 
orders, Internet research of merchandise, fieldlng questions about products, completing mark-downs of retail 
prices, keeping competitive watch over educational market, and meetlng wlth vendors," as well as "creatmg 
and dtrect~ng a webslte." However, these duties, which are not inherently managerla1 or executive in nature, 
are not included in the petitioner's breakdown of the benefic~ary's dutles. Since the petltloner clearly failed to 
include many of the beneficiary's non-quallfy~ng tasks in the chart descnblng the allocation of the 
beneficiary's duties, this evidence will not be given slgnlficant welght in determining what percentage of the 
benefic~ary's dutles are actually managerlal or executive In nature 
On appeal, the petitloner submits a letter from its non-salar~ed vice pres~dent/accountant who descnbes 
varlous duties performed by the benefic~ary that were not prevlously Included In her various job descriptions. 
However, where, as here, a petltioner has been put on notice of a deficiency in the evtdence and has been 
given an opportunity to respond to that deficiency, the AAO wlll not accept evldence offered for the first t~me 
on appeal. See Malter of Soriano, 19 I&N Dec. 764 (BIA 1988), see also Mntter ofobaigbena, 19 I&N Dec. 
533 (BIA 1988) If the petitloner had wanted the additional ev~dence to be considcred, ~t should have 
included these additional job duties In response to the director's request for evidence. Id. Under the 
clrcumstances, the AAO need not and does not consider the sufficiency of the ev~dence submltted on appeal. 
Furthermore, on appeal, a petltioner cannot offer a new posltlon to the beneficlary, or materially change a 
position's tltle, ~ts level of authority within the organizational hierarchy, or the associated job responsib~llt~es 
The AAO notes that the job descr~ption submltted on appeal attr~butes all of the day-to-day operations of the 
petitioner's gallery to the store manager (whose duties were prevlously descnbed as "administratlon and 
sales") and descr~bes additional respons~bilit~es that are absent from all previous descnptrons of the 
benefictary's duties. However, the petlhoner must establish that the posrtlon offered to the benefic~ary when 
the petition was filed merits classification as a managerial or executive position. Mriitcr of Mrckellrz Tire 
Corp.. 17 I&N Dec. 248, 249 (Reg Comm. 1978). A petitioner may not make material changes to a petltlon 
in an effort to make a deficient petltion confirm to CIS requirements See Matler ofhrrtztni, 22 I&N Dec. 169, 
176 (Assoc Comm. 1998). 
Although the record reveals that the benefictary allocates a significant portlon of her tlme to non-qual~fying 
dut~es, the AAO wlll cons~der whether the beneficlary may qualify as a manager based on her supervision of 
supervisory, professlonal or managerlal employees. See section 101(a)(44)(A)(l1) of the Act, and whether the 
petitioner employs a sufficient subordinate staff to relieve the beneficlary from perform~ng primarily non- 
quallfy~ng dutres. 
In evaluating whether the beneficlary manages professlonal employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minlmum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 3 11Ol(a)(32), states that "[tlhe termprofessron shall include but not 
be limited to arch~ects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
WAC 02 284 55201 
Page 8 
schools, colleges, academ~es, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely sk~ll, of an advanced type In a glven field gained by a prolonged course of spec~al~zed rnstruct~on and 
study of at least baccalaureate level, which is a realistic prerequisite to entry Into the particular field of 
endeavor Matrer of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of ling. 13 I&N Dec 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education requ~red by the poslt~on, rather than the degree held 
by the subordinate employees. The possession of a bachelor's degree by a subordlnate employee does not 
automatically lead to the conclusion that an employee IS employed In a professional capacity as that term rs 
defined above. In the instant case, the petitloner has not, m fact, established that a bachelor's degree is 
actually necessary, for example, to perform the cla~med administrative and sales work of the pet~t~oner's other 
employees. Nor has the petitioner established, based on the mln~mal job descnptions provided, that the 
beneficiary's subordinates could be considered managers or supervisors. 
Further, contrary to counsel's assertions on appeal that respons~b~lity for the entlre sales function IS delegated 
to the store manager and pet~tioner's prevlous assertions that the beneficiary manages the company's 
marketing acttvities, a cntlcal analys~s of the nature of the petltloner's buslness undermmes the contention 
that subord~nate employees relleve the benefic~ary from perfonn~ng non-qualifying duties. Rather it appears 
from the record that the only ind~v~dual performing market~ng-related functions is the benefic~ary, whrch 
would leave her to perform all managerla1 and non-managenal tasks associated w~th th~s function. In 
addition, the pet~tloner has stated that rts store manager, asslstant manager and sales staff recelve salanes 
ranglng from $1,00O,to $6,500. If all employees are eamlng mrnimum wage, it can be assumed that the 
manager worked on average no more than 22 hours per week, the assistant manager worked on average no 
more than I8 hours per week, and the three sales people worked approxrmately four hours per week, 15 hours 
per week, and 18 hours per week. The pet~tloner's lease agreement ind~cates that the buslness IS requ~red to 
operate between the hours of 9 a.m. and 9 p.m. dally, or 84 hours per week Even if the petitioner d~d come to 
an agreement with the lessor to reduce ~ts operating hours, rt is ev~dent that as the only full-tlme employee, 
the benefic~ary would be requrred to engage In sales and customer servlce activities, particularly at times 
when the part-time manager and part-tlme ass~stant manager are not present in the pet~tioner's store 
Collectively, the evidence discussed above brings into question how much of the beneficiary's time can 
actually be devoted to managerial and executive duties, when she clearly performs many non-qualifying 
duties related to purchasing, sales and marketing of the products. The AAO acknowledges that 
the beneficiary functions at the top of the petitioner's organizational hierarchy and exercises discretionary 
decision-making auth&ty with respect to the company's overall operations. However, the fact that the 
beneficiary successfully manages a small business and holds an executive job title does not compel CIS to 
deem her a manager or executive as defined by the regulations. The actual duties themselves reveal the true 
nature of the employment. Fedin Bros. Co. Ltd. v. Savn, 724 F. Sup. 1103, 1108 (E.D.N.Y. 1989), aff'd. 905 
F.2d 41 (2d Cir. 1990). 
Counsel correctly observes that a company's slze alone, wlthout taklng into account the reasonable needs of 
the organ~zation, may not be the determining factor m denylng a vrsa to a multlnat~onal manager or executive. 
See 8 101(a)(44)(C) of the Act, 8 U.S.C. 9 1101(a)(44)(C). However, it is appropriate for CIS to constder the 
WAC 02 284 5520 1 
Page 9 
slze of the petitlonlng company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerla1 or non-executive operatlons 
of the company, or a "shell company" that does not conduct busmess in a regular and continuous manner. See, 
e g. Systroi~rcs Corp. v INS, 153 F. Supp. 2d 7, 15 (D D.C. 2001). As already d~scussed, based on the 
pehtioner's representations, it does not appear that the reasonable needs of the petltlonlng company might 
plausibly be met by the servlces of the beneficiary as president, and several part-tlme employees who clearly 
do not work sufficient hours to perform all of the day-to-day, non-managerla1 operatlons of the company 
Regardless, the reasonable needs of the petitloner serve only as a factor in evaluating the lack of staff rn the 
context of reviewing the claimed managerla1 or executive duties. The petitioner must st111 establish that the 
beneficiary is to be employed in the United States In a primarily managerla1 or executive capacity, pursuant to 
sections 101(a)(44j(~) and (B) of the Act. As discussed above. the petitloner has not established th~s essential 
element of eligibll~ty. 
The AAO recognizes the pet~t~oner's submission of two opinion letters wr~tten by tndlvtduals represent~ng the 
Honolulu Academy of the Arts and the Honolulu Japanese Chamber of Commerce. However. the letters do 
not discuss the benefic~ary's dut~es In light of the relevant regulations, but rather state that the beneficiary is a 
successful businesswoman wlth expertise m fine arts of Japan, and that the petit~oner is an asset to Hawall's 
artlstic community. Thus, whlle the AAO respects the oprnlons of these writers and the qualifications and 
achievements of the benetic~ary, the letters have no evidentiary welght In th~s proceed~ng. 
Flnally, counsel noted that CIS approved other petitions that had been prev~ously filed on behalf of 
benefic~ary for the same position. It must be emphasized that each nonimrnlgant petitlon filing is a separate 
record of proceed~ng with a separate burden of proof; each ~ndividual pet~t~on must stand on ~ts own merlts. 
If the previous nonlmmlgrant petitions were approved based on the same unsupported and contrad~ctory 
assertions that are contalned In the current record, the approval would constitute matenal and gross error on 
the part of the director. The AAO IS not requlred to approve appl~catlons or pet~tions where eligibll~ty has not 
been demonstrated, merely because of pnor approvals that may have been erroneous. See, eeg Matter of 
Church Screntology Iniernational, 19 I&N Dec 593,597 (Comm. 1988). The prior approvals do not preclude 
CIS from denylng an extens~on of the onglnal vlsa based on reassessment of the beneficiary's qualifications 
Texns A& U?rzv v. Upchurch, 99 Fed Appx. 556,2004 WL 1240482 (5th Cir. 2004). Based on the lack of 
evldence of ellglbll~ty In the Instant record of proceeding, the director was justified in departing from the prior 
approvals and denying this petitlon. 
Furthermore, the AAO's authority over the servlce centers IS comparable to the relationship between a court 
of appeals and a dlstrict court. Even if a service center dlrector had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contrad~ctory decls~on of a servlce 
center. Loursiana Phrlharrnonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 11 39 (5th Clr. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
As stated above, the fact that an individual manages a small buslness does not necessarily establlsh ellglb~llty for 
classification as an intracompany transferee in a managenal or executtve capacity wlthin the meaning of section 
10 l(a)(44) of the Act. The record does not establlsh that a majonty of the beneficiary's dutles have been or wlll 
be pnmanly directing the management of the organizatton. The record mdicates that a preponderance of the 
WAC 02 284 55201 
Page 10 
beneficiary's duties have been and will be directly providing the services of the business. An employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter of Church Scie?ztolua Inter-r~ationul, 19 I&N Dec. 593, 
604 (Comm. 1988). The petitioner has not demonstrated that the beneficiary will be prim&ly s~ipervising a 
subordinate staff of professional, managerial, or supervisory personnel who relieve her from performing non-' 
qual~fying duties. The petitioner has not demonstrated that it has reached or wi11,reach a level of organizational 
complexity wherein the hirindfiring of personnel, discretionary decisikmaking, and setting company goals and 
policies constitute significant components of the duties performed on a day-today basis. Based on the evidence 
furnished, it cannot' be found that the beneficiary has been or will be employed primarily in 'a qualifying 
managerial or executive capacity. For this reason, the petition may not be approved. 
In wsa petit~on proceedings, the burden of provlng ellgiblhty for the benefit sought remalns entirely with the 
pettt~oner. Sectlon 291 of the Act, 8 U.S.C. 8 1361. Here, the petitioner has not sustained that burden. 
Accordingly, the d~rector's decision w~ll be affirmed and the petit~on will be denled. 
ORDER: The appeal 1s dism~ssed.