dismissed L-1A Case: Art Gallery

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 02 284 55201 Office: CALIFORNIA SERVICE CENTER Date: NOV 2 8 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101 (a)(15)(L) 
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. 
0 Administrative Appeals Ofire 
WAC 02 284 55201 
Page 2 
DISCUSSION: 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 petitioner filed this nonimmigrant petition seeking to extend the employment of its president and general 
manager as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 3 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of California that operates a small gallery a 
and collectibles. The petitioner claims that it is the subsidiary of 
Fukuoka, Japan. The beneficiary was initially granted a one-year period of stay to open a new office and was 
subsequently granted a two-year extension of stay. The petitioner now seeks to extend the beneficiary's stay 
for an additional three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary has been or 
would 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, counsel for the petitioner disputes the findings of the 
director's decision and asserts that the director did not include an adequate analysis of the reasons for denial. 
Counsel further states that the evidence submitted clearly demonstrates that the beneficiary serves in a 
managerial and executive capacity. In support of these assertions, the petitioner submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(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. 4 214.2(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. 
WAC 02 284 55201 
Page 3 
(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. 
At issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(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. 1101(a)(44)(B), defines the term "executive capacity" as 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. 
WAC 02 284 55201 
Page 4 
In the initial petition, the petitioner submitted a letter dated September 20, 2002, which described the 
beneficiary's job duties as follows: 
(1) General Management: As a major strategic move, [the beneficiary] directed to lease a retail space 
for Gallery Tokusa within the grounds of Hawaii's venerable "five star" hotel, the Halekulani, located 
in Waikiki. . . .Under the direction of [the beneficiary], certain internationally recognized artists have 
been featured at Gallery Tokusa such as the world famous imari ceramist, Imaizumi Imaemon XIII, a 
national living treasure of Japan, and other similar events involving Japanese antique ceramics and 
collectibles. 
(2) Marketing Management: In the past year, [the beneficiary] has done much in the marketing 
infrastructure area. Most recently, under an ambitious corporate strategic plan, [the beneficiary] 
expanded the business of [the petitioner] by creating and directing a website for antiques to be sold to 
a worldwide market. 
(3) Personnel Management: [The beneficiary] continues to hold the company's highest position and 
will have full authority, without direct supervision, to make day-to-day decisions. Since 
commencement of operation in 1999, [the petitioner] has hired five employees whom are all citizens 
and/or lawful permanent residents of the U.S. At this time, [the beneficiary] continues to exercise her 
daily discretion of personnel management to hire, tram and direct the activities of the employees 
while maintaining her other responsibilities as follows: 
(a) Analyzing planning, directing and coordinating all operational, administrative and financial 
activities, including capital expenditures and payroll budgets; 
(b) Appraising and purchasing antiques and collectibles sold at Gallery Tokusa from various 
sources in Japan; 
(c) Planning and implementing [the petitioner's] proposed plans in relation to its overall business 
goals and its long-term planning andlor modification of the same as required by [the foreign 
entity]; 
(d) Formulating and implementing standards, policies and procedures in line with [the foreign 
entity]; 
(e) All other duties incidental to (a) thorough (e). 
The petitioner also noted the company's achievement of gross income of $1 19,566 and $66,852 for 2000 and 
2001, respectively, as evidence of the beneficiary's financial management duties and overall responsibility for 
the company's performance. 
On November 5, 2002, the director requested additional evidence to establish that the beneficiary is employed 
as a manager or executive. Specifically, the director requested (1) the U.S. company's organizational chart 
clearly identifying all employees, along with a brief description of job duties, educational level, annual 
saleslwages and ~mmigration status, and source of remuneration (salary, wage or commission) for all staff 
supervised by the beneficiary; and (2) a more detailed description of the beneficiary's job duties, including the 
percentage of time spent in each duty. 
WAC 02 284 5520 1 
Page 5 
In response, the petitioner submitted a letter dated January 11, 2003, which included the following description 
of the beneficiary's job duties: 
[The beneficiary] currently serves as [the petitioner's] president in charge of general 
operations. As President, [the beneficiary] not only directs the management of [the 
petitioner], but she also supervises and controls the work of five (salary + commission) 
employees. . . . [The beneficiary] has authority to hire, fire and recommend personnel actions 
as [the petitioner's] president and exercises discretion over the day-to-day operations 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 distributors, 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 petitioner's additional staff includes: (1) a manager responsible 
for general administration and sales, who receives a salary of $6,500; (2) an assistant manager responsible for 
administration, scheduling and sales, who receives a salary of $5,500; and (3) three sales staff who are 
responsible for sales, merchandise display, inventory and customer list maintenance, who receive salaries 
ranging from $1,000 to $5,500. An organizational chart submitted with the letter depicts these employees 
Duties 
Analyzing, planning, directing and coordinating all operational, administrative and 
financial activities, including capital expenditure and payroll budgets 
Appraising and purchasing antiques and collectibles sold at Gallery Tokusa from 
various sources in Japan 
Personnel management, including Training staff in the specialized knowledge and 
history of techniques. 
Planning and implementing [the petitioner's] proposed plans in relation to its overall 
business goals and its long-term planning and/or modification of the same as 
required by Tajima Japan 
Meeting and discussing legal and financial matters with [the petitioner's] attorney 
and accountant on all important legal and financial matters; attending meetings at 
"Society of Asian Arts of Hawaii", offering lectures at Honolulu Academy of Arts. 
Formulating and implementing standards, policies and procedures in line with 
Taj ima Japan 
Oh 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 is noted 
that the individuals identified as vice presidents are shareholders of the foreign entity. 
On September 18, 2003, the director denied the petition concluding that the beneficiary's duties will not be 
primarily managerial or executive in nature. The director specifically noted that the beneficiary's subordinate 
staff is not comprised of managers or professionals, and that she would perform non-qualifying duties in her 
capacity as the petitioner'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. Counsel 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 1-129 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 a certified public accountant who states that he 
has served as the non-salaried vice president of the petitioner since 1999. In the statement, dated November 5, 
2003, Mr.-further 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. tj 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 beneficiary performs the high- 
level responsibilities that are specified in the definitions. Second, the petitioner must prove that the 
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her time 
on day-to-day functions. Charnpion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th 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 performs 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. First of all, the 
petitioner indicated that the beneficiary devotes a full 25 percent of her time 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 
directly responsible for ordering the merchandise that is displayed and sold in the petitioner's retail store. It is 
noted that 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 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Second, the record indicates that the 
beneficiary is also responsible for "maintaining inventory, ordering from various distributors, handling special 
orders, Internet research of merchandise, fielding questions about products, completing mark-downs of retail 
prices, keeping competitive watch over educational market, and meeting with vendors," as well as "creating 
and directing a website." However, these duties, which are not inherently managerial or executive in nature, 
are not included in the petitioner's breakdown of the beneficiary's duties. Since the petitioner clearly failed to 
include many of the beneficiary's non-qualifying tasks in the chart describing the allocation of the 
beneficiary's duties, this evidence will not be given significant weight in determining what percentage of the 
beneficiary's duties are actually managerial or executive in nature. 
On appeal, the petitioner submits a letter from its non-salaried vice presidentlaccountant who describes 
various duties performed by the beneficiary that were not previously included in her various job descriptions. 
However, where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time 
on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofobaigbena, 19 I&N Dec. 
533 (BIA 1988). If the petitioner had wanted the additional evidence to be considered, it should have 
included these additional job duties in response to the director's request for evidence. Id. Under the 
circumstances, the AAO need not and does not consider the sufficiency of the evidence submitted on appeal. 
Furthermore, on appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a 
position's title, its level of authority within the organizational hierarchy, or the associated job responsibilities. 
The AAO notes that the job description submitted on appeal attributes all of the day-to-day operations of the 
petitioner's gallery to the store manager (whose duties were previously described as "administration and 
sales") and describes additional responsibilities that are absent from all previous descriptions of the 
beneficiary's duties. However, the petitioner must establish that the position offered to the beneficiary when 
the petition was filed merits classification as a managerial or executive position. Matter of Michelin Tire 
Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes to a petition 
in an effort to make a deficient petition confirm to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 
176 (Assoc. Comm. 1998). 
Although the record reveals that the beneficiary allocates a significant portion of her time to non-qualifying 
duties, the AAO will consider whether the beneficiary may qualify as a manager based on her supervision of 
supervisory, professional or managerial employees. See section 10 I(a)(44)(A)(ii) of the Act, and whether the 
petitioner employs a sufficient subordinate staff to relieve the beneficiary from performing primarily non- 
qualifying duties. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10 1 (a)(32) of the Act, 8 U.S.C. 8 1 10 1 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
WAC 02 284 55201 
Page 8 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (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 required by the position, rather than the degree held 
by the subordinate employees. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary, for example, to perfom the claimed administrative and sales work of the petitioner's other 
employees. Nor has the petitioner established, based on the minimal job descriptions provided, that the 
beneficiary's subordinates could be considered managers or supervisors. 
Further, contrary to counsel's assertions on appeal that responsibility for the entire sales function is delegated 
to the store manager and petitioner's previous assertions that the beneficiary manages the company's 
marketing activities, a critical analysis of the nature of the petitioner's business undermines the contention 
that subordinate employees relieve the beneficiary from performing non-qualifying duties. Rather it appears 
from the record that the only individual performing marketing-related functions is the beneficiary, which 
would leave her to perform all managerial and non-managerial tasks associated with this function. In 
addition, the petitioner has stated that its store manager, assistant manager and sales staff receive salaries 
ranging from $1,000 to $6,500. If all employees are earning minimum 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 18 hours per week, and the three sales people worked approximately four hours per week, 15 hours 
per week, and 18 hours per week. The petitioner's lease agreement indicates that the business is required to 
operate between the hours of 9 a.m. and 9 p.m. daily, or 84 hours per week. Even if the petitioner did come to 
an agreement with the lessor to reduce its operating hours, it is evident that as the only full-time employee, 
the beneficiary would be required to engage in sales and customer service activities, particularly at times 
when the part-time manager and part-time assistant manager are not present in the petitioner'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 petitioner's products. The AAO acknowledges that 
the beneficiary functions at the top of the petitioner's organizational hierarchy and exercises discretionary 
decision-making authority 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. Suva, 724 F. Sup. 1 103, 1 108 (E.D.N.Y. 1989), affii, 905 
F.2d 41 (2d Cir. 1990). 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 4 IOl(a)(44)(C) of the Act, 8 U.S.C. 4 1101(a)(44)(C). However, it is appropriate for CIS to consider the 
WAC 02 284 5520 1 
Page 9 
size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, 
e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As already discussed, based on the 
petitioner's representations, it does not appear that the reasonable needs of the petitioning company might 
plausibly be met by the services of the beneficiary as president, and several part-time employees who clearly 
do not work sufficient hours to perform all of the day-to-day, non-managerial operations of the company. 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the 
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
sections 101(a)(44)(A) and (B) of the Act. As discussed above, the petitioner has not established this essential 
element of eligibility. 
The AAO recognizes the petitioner's submission of two opinion letters written by individuals representing the 
Honolulu Academy of the Arts and the Honolulu Japanese Chamber of Commerce. However, the letters do 
not discuss the beneficiary's duties in light of the relevant regulations, but rather state that the beneficiary is a 
successful businesswoman with expertise in fine arts of Japan, and that the petitioner is an asset to Hawaii's 
artistic community. Thus, while the AAO respects the opinions of these writers and the qualifications and 
achievements of the beneficiary, the letters have no evidentiary weight in this proceeding. 
Finally, counsel noted that CIS approved other petitions that had been previously filed on behalf of 
beneficiary for the same position. It must be emphasized that each nonimmigrant petition filing is a separate 
record of proceeding with a separate burden of prooc each individual petition must stand on its own merits. 
If the previous nonimrnigrant 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 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). The prior approvals do not preclude 
CIS from denying an extension of the original visa based on reassessment of the beneficiary's qualifications. 
Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Based on the lack of 
evidence of eligibility in the instant record of proceeding, the director was justified in departing from the prior 
approvals and denying this petition. 
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. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
As stated above, the fact that an individual manages a small business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of section 
10 l(a)(44) of the Act. The record does not establish that a majority of the beneficiary's duties have been or will 
be primarily directing the management of the organization. The record indicates 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 Scientology International, 19 I&N Dec. 593, 
604 (Cornrn. 1988). The petitioner has not demonstrated that the beneficiary will be primarily supervising a 
subordinate staff of professional, managerial, or supervisory personnel who relieve her from performing non- 
qualifying duties. The petitioner has not demonstrated that it has reached or will reach a level of organizational 
complexity wherein the hiringtfiring of personnel, discretionary decision-making, and setting company goals and 
policies constitute significant components of the duties performed on a day-to-day 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 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, the petitioner has not sustained that burden. 
Accordingly, the director's decision will be affirmed and the petition will be denied. , 
ORDER: The appeal is dismissed.