dismissed L-1A Case: Beauty Salon

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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P 
"-$*- 
.% F 
File: SRC-04-080-5 15 16 Office: TEXAS SERVICE CENTER Date: 0 9 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 I Ol(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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The Director, Texas 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 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. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of Florida that 
operates as a beauty salon and spa. The petitioner claims that it is the subsidiary of Secretos del Maquillaje 
97, located in Caracas, Venezuela. The beneficiary was initially granted a one-year period of stay to open a 
new office in the United States and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that: (1) the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity, and (2) the petitioner has 
been doing business for the previous year. 
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 asserts that the petitioner 
has submitted sufficient evidence to show that the beneficiary will be employed in a primarily managerial or 
executive capacity. In support of this assertion, counsel submits a statement on Form I-290B, additional 
evidence, and previously submitted documents. 
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 qualifj4ng 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. $ 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 
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education, training, and employment qualifies hidher 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. 
The regulation at 8 C.F.R. tj 214.2(1)(14)(ii) also provides that a visa petition, 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 (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(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 management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first 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. tj 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 
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(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 Erom higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition filed on January 23, 2004, the petitioner described the beneficiary's job duties as follows: 
[The beneficiary] has been responsible for the overall continuing development of the 
[petitioner]. Her duties and responsibilities have included the hiring and firing of all 
personnel. Revision of all financial contracts and business relationships with suppliers, in 
order to assess the validity of these contracts. She has had total discretionary authority to 
reduce costs, so as to improve profits. Her years of management and executive level 
experience in this field, has given her the latitude to make these decisions without having to 
consult with any other person or entity. Her position is at the executive level since she 
formulates policies and has the ultimate discretionary authority to make necessary changes in 
the structure of the business. Her functions with the organization are purely executive since 
she performs only those executive functions and leaves the daily tasks to the company 
employees. [The beneficiary] has also had the discretionary authority to seek the purchase of 
any existing business and/or enter into negotiations of such an entity. Her executive level 
position permits her to do so and therefore creates a value for the subsidiary and parent 
company. 
The petitioner submitted an organizational chart that reflects that it employs four individuals including the 
beneficiary, in positions including administrative manager, certified cosmetologist, and therapist. The chart 
further shows that the petitioner utilizes the services of contract employees, including a head stylist, 
manicurist, receptionist/secretary, and cleaning crew. The petitioner provided its Florida Department of 
Revenue Employer's Quarterly Report for the fourth quarter of 2003 that reflects that the petitioner employed 
the four staff members named on the organizational chart during the covered period. On Form 1-129, the 
petitioner indicated that it employs seven individuals. 
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On January 3 1, 2004, the director requested additional evidence. In part, the director instructed the petitioner 
to submit evidence as follows: 
A definitive statement describing the United States employment of the beneficiary, including: 
Executive or Managerial Positions (please provide) 
a. position title; 
b. a list of all duties; 
c. percentage of time spent on each duty; 
d. number of subordinate managers/supervisors or other employees who report directly 
to the beneficiary; 
e, a brief description of their job duties; if the beneficiary does not supervise other 
employees, specify what essential function within the organization helshe manages; 
f. specific date that hisker employment began and ended in each position with your 
company; 
$5 indicate the qualifications required for the position; 
h. indicate whether or not the beneficiary functions at a senior level within the 
corporation; 
1. specify hisher position within the organizational hierarchy; 
j. indicate who provides the product sales/services or produces the product of the 
business. 
In a response dated April 7, 2004, the petitioner further described the beneficiary's duties as follows: 
Percentage of time spent on each dutv: 
(35%) Managing the overall activities of the company including administrative and financial 
aspects; working closely with the company's accountant, financial consultant, and attorney. 
(20%) Monitoring the activities of all employees including managers and employees. 
(15%) Maintaining regular communications (via phone and e-mail) with the foreign parent 
company, including assisting as board meetings and phone-conferences with the foreign 
board of directors on behalf of the [petitioner]. 
(1 0%) Identifying new markets and developing new marketing strategies. 
(5%) Networking with businesses in the community to identify and cultivate new 
information sources; attending trade shows and other events to keep abreast of industry 
changes. 
(5%) Traveling nationwide to communicate with suppliers and potential clients. 
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(5%) Preparing a budget for new operations and marketing plan in conjunction with the 
company's CPA and financial consultant. 
(5%) Evaluating and reviewing the services to be provided by the company. 
The petitioner provided that it employs six individuals that report to the beneficiary, including an 
administrative manager, a certified cosmetologist, a therapist, a head stylist, a manicurist, and a 
receptionistlsecretary. 
On April 28, 2004, the director denied the petition. In part, the director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. The director stated that the petitioner did not establish that the beneficiary will supervise other 
supervisory, managerial, or professional employees who will relieve her fiom performing the services of the 
business. The director observed that some of the petitioner's invoices bear the beneficiary's name, and 
concluded that the fact that the beneficiary handles invoices suggests she is not performing managerial 
functions. 
On appeal, counsel asserts that the petitioner has submitted sufficient evidence to show that the beneficiary 
will be employed in a primarily managerial or executive capacity. Counsel states that "[tlhere is ample 
evidence to support the Beneficiary's role as a management employee, including the assertion that she is in a 
supervisory capacity." Counsel further asserts that "an employee with [a] clearly Executive/Managerial title 
as President, should have wide powers possessed by [the beneficiary] in the operations of [the petitioner.]" 
Counsel states that the petitioner employs seven individuals. Counsel explains that the appearance of the 
beneficiary's signature on several invoices is only indicative of her role in providing customer service when a 
supervisor is required. 
Upon review, counsel's assertions are not persuasive. 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. 
214.2(1)(3)(). 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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant case, the petitioner initially asserted that the beneficiary is primarily engaged with executive 
duties. Yet, on appeal counsel refers to the beneficiary as a management employee and asserts that she has 
supervisory authority. Thus, it appears that the petitioner intends to represent that the beneficiary is primarily 
engaged with both managerial and executive duties. To sustain such an assertion, the petitioner must 
establish that the beneficiary meets each of the four criteria set forth in the statutory definition for executive 
duties under section 10l(a)(44)(B) of the Act, and the statutory definition for managerial duties under section 
101(a)(44)(A) of the Act. At a minimum, the petitioner must establish that the beneficiary is primarily 
employed in one or the other capacity. See 8 C.F.R. 3 214.2(1)(3)(ii). 
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The breakdown of the beneficiary's duties fails to establish that she will be employed in a primarily 
managerial or executive capacity, For example, the petitioner provided that the beneficiary will devote 35 
percent of her time to "[mlanaging the overall activities of the company including administrative and financial 
aspects." Yet, this statement is vague, providing little insight into the true nature of the tasks the beneficiary 
will perform in the United States. The petitioner indicated that the beneficiary will devote ten percent of her 
time to "[ildentifying new markets and developing new marketing strategies." However, without further 
explanation, this appears to be a non-qualifying marketing and sales function. The petitioner stated that the 
beneficiary will devote five percent of her time to "[tlraveling nationwide to communicate with suppliers and 
potential clients." Without further explanation, these appear to be a sales and purchasing functions that are 
not managerial or executive in nature. 
The petitioner indicated that the beneficiary will commit 20 percent of her time to "[mlonitoring the activities 
of all employees including managers and employees." Yet, as will be discussed fully below, the petitioner has 
failed to show that any of the beneficiary's subordinates will be professional, managerial, or supervisory 
employees. Thus, this portion of the beneficiary's time is devoted to acting as a first-line supervisor. 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, managers, or supervisors. 
See Matter of Church Scientology International, 19 I&N Dec, 593, 604 (Comm. 1988); section 
lOl(a)(44)(A)(ii) of the Act. The portion of the beneficiary's time devoted to acting as a first-line supervisor 
is not deemed time acting in a managerial or executive capacity. 
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. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). As discussed above, the breakdown of the beneficiary's duties 
shows that she will spend as much as 70 percent of her time performing non-qualifying duties. 
The organizational chart submitted with the initial petition reflects that the petitioner employs four individuals 
including the beneficiary, in positions including administrative manager, certified cosmetologist, and 
therapist. The chart further shows that the petitioner utilizes the services of contract employees, including a 
head stylist, manicurist, receptionist/secretary, and cleaning crew. On Form 1-129, the petitioner indicated 
that it employs seven individuals. However, the petitioner has only documented that it employs the 
administrative manager, certified cosmetologist, and therapist as the beneficiary's subordinates. The 
petitioner's Florida Department of Revenue Employer's Quarterly Report for the fourth quarter of 2003 shows 
that the petitioner employed the three individuals named on the organizational chart in the positions of the 
administrative manager, certified cosmetologist, and therapist. The petitioner failed to submit any 
documentation to establish that it employs independent contractors. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of Calfornia, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
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Although the beneficiary is not required to supervise personnel, if it is claimed that her 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. 
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 10l(a)(32) of the Act, 8 U.S.C. 1101(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 
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. 8 17 (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 a subordinate employee. 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 established that a bachelor's degree is actually 
necessary to perform the duties of the administrative manager, certified cosmetologist, or therapist. While the 
petitioner provided documentation to show that the cosmetologist is certified, the petitioner has not shown 
that a bachelor's degree is prerequisite for such certification. 
Nor has the petitioner shown that any of the beneficiary's subordinates supervise other staff members or 
manage a clearly defined department or function of the petitioner, such that they could be classified as 
managers or supervisors. While the organizational chart shows that the administrative manager has authority 
over the certified cosmetologist and the therapist, the description of his duties does not include supervising 
subordinates. The fact that he has a managerial title does not, by itself, establish that he is a manager. A 
review of his job description shows that he is primarily engaged with general clerical duties associated with 
running an office, and thus he is not deemed a managerial employee. Accordingly, the petitioner has not 
shown that the beneficiary's subordinate employees are supervisory, professional, or managerial, as required 
by section 101(a)(44)(A)(ii) of the Act. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United 
States operation one year within the date of approval of the petition to support an executive or managerial 
position. There is no provision in CIS regulations that allows for an extension of this one-year period. If the 
business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an 
extension. In the instant matter, the petitioner has not established that it has reached the point that it can 
employ the beneficiary in a predominantly managerial or executive position. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. 
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The second issue in this proceeding is whether the petitioner has established that it has been doing business 
for the previous year. See 8 C.F.R. $ 2 14.2(1)(14)(ii)(B). 
In denying the petition, the director concluded that the petitioner did not establish that it has been doing 
business for the previous year. Counsel and the petitioner failed to address this ground for denial on appeal. 
Thus, the petitioner concedes this point and the director's determination will not be disturbed. For this 
additional reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying relationship with 
the beneficiary's foreign employer as required by 8 C.F.R. 5 214.2(1)(l)(ii)(G), as the petitioner has failed to 
establish that the foreign entity is a qualifying organization engaged in the regular, systematic, and continuous 
provision of goods and/or services pursuant to 8 C.F.R. $ 214.2(1)(l)(ii)(H). The regulation at 8 C.F.R. 
5 214.2(l)(ii)(G)(2) reflects that, in order for an entity to be considered a qualifying organization, the 
petitioner must show that it: 
Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and at least one other country directly or through a parent, branch, affiliate, 
or subsidiary for the duration of the alien's stay in the United States as an intracompany 
transferee . . . . 
The regulation at 8 C.F.R. 5 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods and/or services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(A) requires the petitioner to submit "[elvidence that the United 
States and foreign entities are still qualifying organizations." The petitioner submitted numerous untranslated 
documents purportedly relating to the foreign entity's business operations. Because the petitioner failed to 
submit certified translations of the documents, the AAO cannot determine whether the evidence supports the 
petitioner's claims. See 8 C.F.R. $ 103.2(b)(3). Accordingly, the documents are not probative and will not be 
accorded any weight in this proceeding. The remaining evidence is not sufficient to show that the foreign 
entity was engaged in "the regular, systematic, and continuous provision of goods and/or services" as of the 
date the petition was filed. See 8 C.F.R. 3 214.2(l)(ii)(H). Thus, the petitioner has failed to show that the 
foreign entity is a qualifying organization. See 8 C.F.R. 3 214.2(l)(ii)(G)(2). Accordingly, the petitioner has 
not established that it has a qualifying relationship with the foreign entity. See 8 C.F.R. 5 214.2(1)(14)(ii)(A). 
For this additional reason, the petition may not be approved. 
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), afd. 345 F.3d 683 
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(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). 
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. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.