dismissed L-1A Case: Bakery Equipment Distributor

idend@ing dsra deleted to 
prevent clearly unwarranted 
hion of pcnonal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave, N.W. Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUSLIC COPY 
File: WAC 04 139 52007 Office: CALIFORNIA SERVICE CENTER Date: Af R 0 3 lllnfi 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN 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. 
- ,"= "-- 
4-"" 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 139 52007 
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 seeks to employ the beneficiary temporarily in the United States as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)( 15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 8 1101(a)(15)(L). The U.S. petitioner, a corporation organized in the State of California that is 
described as a bakery equipment distributor, seeks to employ the beneficiary as its president. The petitioner 
claims that it is the subsidiary o f located in Goes, The Netherlands. 
The director denied the petition, determining that the petitioner had failed to establish that (1) the beneficiary 
would be employed in a managerial or executive capacity; or (2) the petitioner was currently doing business 
as defined by the regulations. 
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 submits a brief and alleges 
that key evidence was overlooked and misinterpreted in evaluating the petition. 
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. 8 214.2(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. 
(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 himlher 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. 
WAC 04 139 52007 
Page 3 
The primary issue in the present matter is whether the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity as required by 8 C.F.R. 9 214.2(1)(3)(ii). 
In this case, the director found that the petitioner had not established that the beneficiary would 
in a primarily managerial or executive capacity. In an affidavit dated February 11, 2004 fro 4mb 
Executive Vice President of the petitioner, the beneficiary's proposed duties in the U.S. were described as 
follows: 
Defining the long-term business objectives for [the petitioner] and developing strategic 
performance targets for subordinate areas of responsibility, while ensuring that functional 
strategies are developed, evaluated in and implemented. 
Translating the annual overall performance targets of the company into objectives for the 
operative plan of the subordinate functions, monitoring the achievement of objectives and 
introducing corrective steps in the event of budget variances. 
Ensuring the development and implementation of marketing and sales strategies in 
accordance with the business strategy of [the petitioner] while taking into account the 
global customer segment strategies, the selection of target markets and the pricing policy 
for the brands. 
Defining the financial, accounting, liquidity and fiscal policy in accordance with 
corporate guidelines, and ensuring that it is implemented in order to optimize the rate of 
return of [the petitioner's] investments. 
Developing a strategy-oriented and efficient organization structure with a view to 
introducing structural and process adjustments in the event of organizational deficits. 
Ensuring the procedure of qualitative and quantitative information on market conditions 
and market trends in the USA, with a view to initiating projects to develop a new type of 
[service] or to enhance existing services. 
Developing sales development measures based on the business strategy of [the 
petitioner], and defining and initiating sales development projects in order to expand and 
further develop the business. 
Establishing and maintaining contacts with the company's top customers in order to 
improve customer relations and to assert the list prices and pricing policy in the trade. 
The director found this initial evidence to be insufficient to establish that the beneficiary would be employed 
abroad in a primarily managerial or executive capacity. Consequently, in a request for evidence issued on 
May 17, 2004, further information regarding the beneficiary's proposed employment was requested. In a 
response dated July 23, 2004, the petitioner submitted additional evidence in support of the claimed 
managerial andlor executive employment, including a personnel chart, a new description of duties and the 
percentage time spent thereon, and copies of its quarterly wage reports for the previous four quarters. The 
most recent report, for the quarter ending 313 112004, documented the petitioner's employment of only two 
WAC 04 139 52007 
Page 4 
Counsel's letter alleged that based on the beneficiary's work experience with the foreign entity abroad as 
general manager, he would be well qualified as the president of the U.S. operation. The newly submitted list 
of the beneficiary's duties was virtually identical to the original list of duties submitted. The only differences, 
highlighted in bold type below, were the percentages of time devoted to each identified duty and a new claim 
that the beneficiary supervised subordinate staff: 
Defining the long-term business objectives for [the petitioner] and developing strategic 
performance targets for subordinate areas of responsibility, while ensuring that functional 
strategies are developed, evaluated in and implemented (10% of time spent). 
Translating the annual overall performance targets of the company into objectives for the 
operative plan of the subordinate functions, monitoring the achievement of objectives and 
introducing corrective steps in the event of budget variances (10% of time spent). 
Ensuring the development and implementation of marketing and sales strategies in 
accordance with the business strategy of [the petitioner] while taking into account the 
global customer segment strategies, the selection of target markets and the pricing policy 
for the brands (10% of time spent). 
Defining the financial, accounting, liquidity and fiscal policy in accordance with 
corporate guidelines, and ensuring that it is implemented in order to optimize the rate of 
return of [the petitioner's] investments (10% of time spent). 
Developing a strategy-oriented and efficient organization structure with a view to 
introducing structural and process adjustments in the event of organizational deficits, 
overseeing the work of employees under the beneficiary's supervision (25% of time 
spent). 
Ensuring the procedure of qualitative and quantitative information on market conditions 
and market trends in the USA, with a view to initiating projects to develop a new type of 
[service] or to enhance existing services (10% of time spent). 
Developing sales development measures based on the business strategy of [the 
petitioner], and defining and initiating sales development projects in order to expand and 
further develop the business (10% of time spent). 
Establishing and maintaining contacts with the company's top customers in order to 
improve customer relations and to assert the list prices and pricing policy in the trade 
(5% of time spent). 
The director denied the petition on August 5, 2004, finding that the petitioner had failed to demonstrate that 
the beneficiary would be employed in a capacity that was primarily managerial or executive. Specifically, the 
director found that the beneficiary would be primarily performing the necessary services of the business, and 
furthermore, that the beneficiary was not overseeing a subordinate staff of professionals, managers, or 
supervisors so that he was relieved from performing his non-qualifying duties. Upon review of the record, the 
AAO concurs with the director's decision. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Here, the petitioner provides a vague description of duties that seem to indicate that the 
WAC 04 139 52007 
Page 5 
beneficiary will play a key role in the production and distribution of the petitioner's products. The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). In this case, the majority of the beneficiary's tasks 
involve first-hand participation in developing sales strategies and contacts. These duties are essential to the 
establishment of the petitioner's business and incorporate the crucial daily services necessary for the business 
to become viable. 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). 
Furthermore, the petitioner seems to rely on the beneficiary's managerial title abroad as a basis for his 
qualifications as a manager or executive. However, the evidence contained in the record does not support this 
contention. A managerial or executive employee must have authority over day-to-day operations beyond the 
level normally vested in a first-line supervisor, unless the supervised employees are professionals. See Matter 
of Church Scientology International, 19 I&N Dec. at 604. In this case, although the petitioner claims that the 
beneficiary will serve as president and will oversee a staff of four subordinates, the record indicates that at the 
time of filing, only two other employees worked for the petitioner, and that neither qualified as a managerial, 
professional, or supervisory employee. Although the beneficiary is not required to supervise personnel, if it is 
claimed that his duties involve supervising employees, the petitioner must establish that the subordinate 
employees are supervisory, professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. 
 Since the 
response to the director's request for evidence indicated that the beneficiary would spend 25% of his time 
supervising personnel, this issue must be explored. 
While an organizational chart lists five subordinate employees under the beneficiary, the wage reports and 
payroll summaries submitted indicate that at the time of filing, only the CEO and Customer Service employee 
were employed by the petitioner. Though requested by the director, the petitioner did not provide the level of 
education required to perform the duties of these positions, but merely provided their salary amounts and 
position titles. Any failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). Thus, the petitioner has not established that these 
employees possess or require an advanced degree, such that they could be classified as professionals. Nor has 
the petitioner shown that either of these employees supervise subordinate staff members or manage a clearly 
defined department or function of the petitioner, such that they could be classified as managers or supervisors. 
Finally, since the petitioner provided no description of the duties of these two employees, the petitioner has 
not shown that the beneficiary's subordinate employees are supervisory, professional, or managerial, as 
required by section 10 1 (a)(44)(A)(ii) of the Act. 
On appeal, counsel relies on his July 23, 2003 letter, and alleges that the beneficiary is the engineer who 
created the petitioner's chief product, namely, a glaze spraying machine. Since the beneficiary, according to 
counsel, is not ready and willing to transfer the drawings and designs for this machine to the U.S. unless he is 
there to personally supervise its production, counsel contends that the beneficiary's transfer is necessary. 
Once he obtains his visa, according to counsel, he will be in the position to hire five new employees and 
subsequently manage the organization. 
WAC 04 139 52007 
Page 6 
These assertions are not persuasive. 
 The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. 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 Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). Furthermore, as the petitioner has not claimed that it is a new office, it cannot be deemed a 
new office under 8 C.F.R. § 214.2(1)(3)(v)(C) and is thus not afforded a start-up phase in which to hire 
additional employees in order for the business to become operational. The petitioner has failed to establish 
that the beneficiary will be coming to the United States to render his services in a primarily managerial or 
executive capacity. For this reason, the petition may not be approved. 
The second issue raised by the director is whether the petitioner has been doing business as required by the 
regulations for the previous year. The director concluded that the petitioner had not been engaged in "the 
regular, systematic, and continuous provision of goods andlor services by a qualifying organization" as required 
by the regulation at 8 C.F.R. §214.2(1)(1)(ii)(H), which defines the term "doing business." 
Upon review, the director's treatment of this issue is inappropriate. The instant petition is an initial petition to 
classifL the beneficiary as an L-1A nonimmigrant intracompany transferee. Since the petition does not involve 
an L-1 extension, there is no requirement that the petitioner demonstrate that it was doing business during the year 
prior to the petition's filing. Specifically, proof that a petitioner has been doing business for the previous year is 
required under 8 C.F.R. § 214.2(1)(14)(ii)(B) when a petitioner seeks to extend a petition which involved the 
opening of a new office. In this case, however, the petitioner is not seeking an extension, but rather is filing an 
initial petition. The AAO notes that the director may erroneously have treated the petition as an immigrant 
petition and relied on the regulation at 8 C.F.R. 9 204.56)(3)(i)(D), which requires that a petition for an 
immigrant worker demonstrate that the petitioner had been doing business for one year prior to the petition's 
filing. Since this petition pertains to a nonimmigrant intracompany transferee, the requirement that the petitioner 
be doing business during the previous year is not applicable. The decision of the director with regard to this issue 
is hereby withdrawn. 
Beyond the decision of the director, the petition also may not be approved because there is insufficient 
evidence of a qualifying relationship between the petitioner and the Dutch entity. The petitioner claims that it 
is a subsidiary of the foreign entity by way of the foreign entity's 51% ownership of the U.S. entity. The 
petitioner submitted a copy of a U.S. Income Tax Return for an S Corporation (Form 1120s). To qualify as a 
subchapter S corporation, a corporation's shareholders must be individuals, estates, certain trusts, or certain 
tax-exempt organizations, and the corporation may not have any foreign corporate shareholders. See Internal 
Revenue Code, § 1361(b)(1999). A corporation is not eligible to elect S corporation status if a foreign 
corporation owns it in any part. Accordingly, since the petitioner would not be eligible to elect S-corporation 
status with a foreign parent corporation, it appears that the U.S. entity is owned by one or more individuals 
residing within the United States rather than by a foreign entity. This conflicting information has not been 
resolved. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). 
WAC 04 139 52007 
Page 7 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.