dismissed L-1A Case: Clothing Sales And Marketing

U.S. Department of Homeland Security 
20 Mass, N.W., Rrn A3042 
Washington, DC 20529 
E&td b U.S. Citizenship 
i.r.*t q* am& and Immigration 
~vl&!&molpef~8~~~3 
FILE: EAC-02-268-5 1 173 Office: VERMONT SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(] 5)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
'1 Administrative Appeals Office 
EAC-02-268-5 1 173 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its President and Chief 
Executive Officer (CEO) as an L-1A nonimmigrant intracompany transferee pursuant to section 
101 (a)(] 5)(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 New York that is engaged in clothing sales and marketing. The 
petitioner claims that it is the subsidiary of Webpulse Consulting (India).com Limited, located in New Delhi, 
India. 
On February 7, 2003, the director initially denied the petition concluding that the petitioner did not establish 
that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. On 
March 6, 2003, the petitioner filed a Motion to Reopen and Reconsider, accompanied by additional evidence. 
On June 5, 2003, the director granted the motion and reopened the matter for further consideration. The 
director ultimately denied the petition, again concluding that the petitioner did not establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. On appeal, the petitioner asserts that the beneficiary will be 
employed in a primarily managerial or executive capacity, and that the director did not understand the 
beneficiary's position or the petitioner's outsourced labor. In support of these assertions: the petitioner 
submits a brief. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section IOl(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. tj 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 (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. 
(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 
EAC-02-268-5 1 173 
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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. 
The primary 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. 3 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1 101(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. 
In the initial petition filed on August 21, 2002, in an attached support letter the petitioner stated that "the 
beneficiary is responsible for managing U.S. marketing & Importing for ready to wear apparel manufactured 
in India." 
EAC-02-268-5 1 173 
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On September 30, 2002, the director requested additional evidence. In part, the director requested a list of the 
petitioner's employees, including their names, job titles, Social Security numbers, immigration status, and 
compensation amount and source, with an indication of whether each employee is on salary, wage, or paid by 
commission. The director further requested an organizational chart for the petitioner that includes the current 
names of all executives, managers, and supervisors, and the number of employees in each department or 
subdivision. The director instructed the petitioner to clearly identify the beneficiary's position in the chart and 
list all employees under the beneficiary's supervision by name and job title. The director requested a brief 
description of the job duties and educational level for all employees under the beneficiary's supervision. The 
director requested a more detailed description of the beneficiary's duties, including the percentage of time he 
devotes to each task, and an explanation of how the beneficiary's duties differ from those of current managers 
or executives. The director finally instructed the petitioner to provide its Form 941, Quarterly Wage Report, 
for the first quarter of 2002, and copies of the petitioner's payroll summary and 2001 W-2s and W-3s. 
In a response dated December 11, 2002, in part the petitioner submitted: (1) an organizational chart for the 
petitioner; (2) a statement describing the beneficiary's duties in the United States; (3) a statement discussing 
the duties of the petitioner's four employees; and (4) the petitioner's Form 941, Quarterly Wage Report, for 
the third quarter of 2002. In the statement discussing the beneficiary's duties, the petitioner provided the 
following: 
[The beneficiary] is the Chairman of this corporation and is involved in the day to day affairs 
of the company. His basic duty is to grow business. He makes all the plans, takes all the 
important decisions and all the employees of this corporation report to him . . . . [The 
beneficiary] reports to the Board of its Holding company in India. 
In the statement discussing the duties of all of the petitioner's employees, the petitioner provided that: 
[The beneficiary] is heading the company and is responsible for the final results of the 
company. He plans and supervise [sic] the execution of the work and also look [sic] after 
banking personally. He travel [sic] overseas to make new contacts for supplies. 
The petitioner described the duties of the beneficiary's subordinates as follows: 
ads the marketing division of the company. He is working with the 
of years as salesperson. His major duties are to promote the sales 
of the cotnpany and to support the exiting customers . . . . 
utsourses [sic] the products from overseas and is in charge of the timely 
supplies of the merchandises . . . . 
looks after the administration of the company and also is in charge of its 
accounts and finance[.] She reports to [the beneficiary] and works from time to time . . . . 
On February 7, 2003, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or execiltive 
capacity. Specifically, the director stated that three of the petitioner's claimed employees are not listed on the 
EAC-02-268-5 1 173 
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petitioner's Form 941, Quarterly Wage Report, for the third quarter of 2002, calling into question the number 
of employees available to relieve the beneficiary from performing non-qualifying sales tasks. The director 
further noted that the petitioner failed to provide complete position descriptions for its employees, or a 
breakdown of the percentage of time the beneficiary devotes to each of his tasks. The director found that the 
description of the beneficiary's duties is vague, and that the petitioner failed to establish that he will function 
at a senior level within the organizational hierarchy other than in position title. The director stated that the 
petitioner failed to show that the beneficiary's subordinates will be supervisory, professional, or managerial. 
On March 6, 2003, the petitioner filed a Motion to Reopen and Reconsider. In pertinent part, the petitioner 
explained that it relies on outside contract sales services, as well as independent shipping, receiving and 
warehousing through two separate companies. The petitioner asserted that using outside contractors would 
"allow the beneficiary to focus on exclusively managerial activities." The petitioner further indicated that it 
will provide consulting services to two different companies in developing call centers for telemarketing. In 
an attached letter, the petitioner's counsel provided the following description of the beneficiary's duties: 
The beneficiary is responsible for setting business policy, retaining the services of companies 
and directing and reviewing the work of sales agent [sic] and the receiving, warehousing, 
shipping and fulfillment agents. He confers with the sales agents regarding customers 
demands and trends in ordering, to anticipate customer needs, and to plan and organize 
pricing, delivery schedules and the selection of products offered to best serve customers, and 
to attract new customers. 
He also considers the prices, delivery schedules and reliability of contractors to make 
decisions on changing or negotiating different arrangements. 
He budgets, plans fulfillment and negotiates financing. He decides to extend or refuse further 
credit to customers. His duties are strictly managerial, and of approximately a 40-hour week, 
about 10 to 12 hours are spent on developing sales and marketing policies including pricing 
and product selection in consultation with the sales agents, about 10 to 12 hours per week in 
reviewing financial and credit reports, consulting with the petitioner's CPA and making 
budgeting decisions, planning and negotiating financing for the business, and deciding on 
extensions and terminations of credit to [the petitioner's] customers. Another 8 hours are 
devoted to review of the receiving, importing and inventory control and all fulfillment work 
done by [the shipping, receiving, and warehousing contractor.] 
A further 10 to 14 hours is [sic] spent in planning and guiding the staffs of the consulting 
clients in setting up, modifying and maintaining telemarketing systems, including reviewing 
hardware an8 software options and advising on the best choices for the business applications 
needed . . . . [The beneficiary] is now devoting his fuli time to the American enterprise. 
In support of these assertions, the petitioner provided: (I) a statement discussing payments made to two 
companies for marketing, finishing, shipping. and warehousing services; (2) an agreement between the 
petitioner and a company titled Yankee Clipper, dated December 12, 2000, in which Yankee Clipper agrees to 
services; (3) an agreement between the petitioner and a company titled 
ne 1. 2000, in which provide marketing services in 
EAC-02-268-5 1 173 
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exchange for a commission; (4) a statement describing sources of income for the petitioner; (5) an agreement, 
dated October 25, 2002, in which the petitioner agrees to provide consulting services for a company titled I- 
Connexion, LLC; (6) an agreement, dated June 25, 2002, in which the petitioner agrees to provide consulting 
services for a company titled Wireless Solutions NY; and (7) the petitioner's 2001 IRS Form 1120, U.S. 
Corporate Income Tax Return. 
On June 5, 2003, the director granted the motion and reopened the matter for further consideration. The 
directly ultimately denied the petition, again concluding that the petitioner did not establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
Specifically, the director stated that "the record does not currently demonstrate that the beneficiary functions 
at a senior level within an organizational hierarchy other than in position title, [or that] the beneficiary will be 
managing a subordinate staff of professional, managerial, or supervisory personnel who will relieve him from 
performing non-qualifying duties." The director further noted that, "[wlhile a manager or executive may 
manage or direct a function within an organization, it must be clearly demonstrated the executive does not 
directly perform the function. The evidence of record in the instant petition does not appear to indicate that 
the executive is not directly performing the function he should be overseeing." 
On appeal, the petitioner asserts that the beneficiary will be employed in a primarily managerial or executive 
capacity, and that the director did not understand the beneficiary's position or the petitioner's outsourced 
labor. The petitioner states that "there is no time frame for [a] CEO and no breakup of duties . . . . [I]t is very 
hard to give [a] breakup of the duties and numbers of hours of the CEO because the only . . . objective of any 
CEO is to maximize the wealth of the shareholders." In support of these assertions, the petitioner submits a 
brief. 
Upon review, the petitioner'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. 5 214.2(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 
The initial job description submitted by the petitioner was brief and vague, providing little insight into the true 
nature of the tasks the beneficiary will perform in the United States. For example, the statement that the 
beneficiary "makes all the plans, takes all the important decisions and all the employees of this corporation 
report to him" does not indicate what actual tasks the beneficiary will perform on a daily basis. Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The actual duties 
themselves reveal the true nature of the employment. Id. 
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 primwily 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). In the Motion to Reopen and Reconsider, the petitioner provided a 
breakdown of the percentage of time the beneficiary will devote to his various duties. This breakdown 
EAC-02-268-5 1 173 
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suggests that the beneficiary will invest the majority of his time in non-managerial and non-executive tasks, 
as discussed below. 
Counsel for the petitioner stated that, during a 40 hour week, the beneficiary will spend " 10 to 14 hours . . . 
planning and guiding the staffs of the consulting clients." Thus, the beneficiary will spend this time directly 
providing the petitioner's consulting services to other companies. 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). 
Accordingly, this 10 to 14 hour portion ofthe beneficiary's time is invested in non-qualifying tasks. 
Counsel for the petitioner stated that the beneficiary will take "8 hours . . . to review . . . the receiving. 
importing and inventory control and all fulfillment work done by [the shipping, receiving, and warehousing 
contractor.]" The agreement between the petitioner and the shipping, receiving, and warehousing contractor 
reflects that the contractor's services are approximately equivalent to two in-house employees that the 
petitioner would otherwise have to employ. The contractor will perform tasks such as receiving and storing 
shipments, preparing an inventory system, shipping merchandise, submitting records to the petitioner, sorting 
and counting merchandise, creating inventory records, and processing returns. Thus, the agreement reflects 
that the contract work will be largely clerical and manual labor. It is assumed that the employees to perform 
the contract work will not be professionals, managers, or supervisors. Accordingly, the beneficiary's review 
of the work of these employees is equivalent 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. See Matter of Church Scientology 
Inlernational, 19 I&N Dec. 593, 604 (Comm. 1988). If the contract workers were in fact in-house employees 
of the petitioner, the evidence of record reflects that the beneficiary would directly serve as their first-line 
supervisor. The fact that the workers are hired through a contractor does not render the beneficiary's 
supervision of their work to be a managerial task as contemplated by section 101(a)(44)(A) of the Act. 
Therefore, the eight hours the beneficiary spends reviewing the work of the shipping, receiving, and 
warehousing contractor are invested in non-qualifying tasks. 
Counsel for the petitioner stated that the beneficiary will spend "10 to 12 hours per week in reviewing 
financial and credit reports, consulting with the petitioner's CPA and making budgeting decisions, planning 
and negotiating financing for the business, and deciding on extensions and terminations of credit to [the 
petitioner's] customers." The petitioner further provided that the beneficiary "look[s] after banking 
personally." Thus, within this category of tasks, it appears that the beneficiary will perform numerous non- 
qualifying duties such as reconciling a checking account, paying routine bank deposits. The 
petitioner states that it employs an individual on a part-time basis, name who "looks after the 
administration of the company and also is in charge of its accounts description of this 
employee's duties suggests that she would perform routine banking functions. However, the petitioner has 
failed to document that she is in fact employed with the company, as she is not listed on the petitioner's Form 
941, Quarterly Wage Report, for third quarter of 2002, and the record contains no further evidence to reflect 
her employment. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of Calijornia, 14 I&N Dec. 190 
(Reg. Comm. 1972). Though counsel referenced the petitioner's CPA, the petitioner has provided no 
documentation to support that it employs an accountant on an ongoing basis who would assist the beneficiary 
in preparing forms and performing non-qualifying duties. Again, going on record without supporting 
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documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. at 190 (Reg. Comm. 1972). Thus, the 10 to 12 hours the 
beneficiary commits to financial matters appears to include non-qualifying tasks. 
Based on the foregoing, the evidence of record reflects that the majority of the beneficiary's time will be spent 
performing non-managerial and non-executive tasks. See section 101 (a)(44)(A) and (B) of the Act. 
Though the petitioner has not expressly asserted that the beneficiary is a "function manager," by raising the 
fact that the beneficiary manages independent contractors the petitioner suggests that the beneficiary may 
qualify as an intracompany transferee in accord with the relevant portion of section 101(a)(44)(A)(ii) of the 
Act. The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" within 
the organization. See section 101 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 101(a)(44)(A)(ii). If a petitioner 
claims that the beneficiary is managing an essential function, the petitioner must identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential function. In addition, the petitioner must provide a 
comprehensive and detailed description of the beneficiary's daily duties demonstrating that the beneficiary 
manages the function rather than performs the duties relating to the function. Again, 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 Scientolo~y International, 19 I&N Dec. at 
604 (Comm. 1988). Whether the beneficiary is an "activity" or "function" manager turns in part on whether 
the petitioner has sustained its burden of proving that his duties are "primarily" managerial. As discussed 
above, in this matter the petitioner has not established that the majority of the beneficiary's time will be 
invested in managerial or executive tasks. 
The petitioner's organizational chart represents that the beneficiary has three subordinate employees. The 
petitioner further provided a brief position description for each subordinate. However, the petitioner's Form 
94 1, Quarterly Wage Report, for third quarter of 2002, which covers the date of filing the petition, indicates 
that the petitioner only employs the beneficiary and one other individual who is not named on the petitioner's 
organizational chart. 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 (RIA 1988). The petitioner has provided no additional evidence to reflect the number 
of staff members in its employ, or to clarify this inconsistency. 
Further, 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 § 101(a)(44)(A)(ii) of the Act. Despite the director's request, the petitioner 
failed to submit the educational level of each of these employees, thus the AAO cannot determine whether 
they are professionals as contemplated by section 101(a)(44)(A)(ii) of the Act. See also section 10l(a)(32) of 
the Act; Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter cfLing, 13 I&N Dec. 3 5 (R.C. 1968); Matter 
of Shin, 11 I&N Dec. 686 (D.D. 1966). 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). Nor has the petitioner 
shown that any of the 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. Thus, the 
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petitioner has not shown that the beneficiary's alleged subordinate employees are supervisory, professional, 
or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
or managerial capacity, as required by 8 C.F.R. tj 214.2(1)(3). For this reason, the appeal will be dismissed. 
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. The petitioner has not met this burden. 
ORDER: The appeal is dismissed.