dismissed L-1A Case: Dry Cleaning

ldentilying data to 
plvmmt-y-kd 
~~penoadphnwy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rm. A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
I 
/ 
mE1c COPY 
F~le SRC 04 066 52298 Office: TEXAS SERVICE CENTER Date: I\(o\Y' 1 4, 2M5 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Thls is the decision of the Administrat~ve Appeals Office in your case. All documents have been returned to 
the office that onginally declded your case. Any further inquiry must be made to that office. 
<---' 
I, Robert P. Wiemann, Director 
\\ Administrative Appeals Office 
SRC 04 066 52298 
Page 2 
- DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant vlsa. 'The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petltion seeking to employ the beneficiary as an'L-lA nonimmlgrant 
lntracompany transferee pursuant to sectlon 10 1 (a)(l S)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1 lOl(a)(lS)(L). The petitioner, a Georgia corporation, operates a dry cleaning store. The petttioner 
claims that it is the subsidlay oflocated in Kolol, India. The petitioner seeks to change the 
beneficlay's status from that of a B-2 visitor so that he may serve as its general manager for a three-year 
period. , 
The director 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. 
The petitioner subequently 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 t~at the director 
erroneously concluded that the beneficiary would be engaged in non-managerial duties, and failed'to consider 
the reasonable needs of the petitioner's small business when analyzing its staffing levels. In support of this 
assertion, the petitioner submits additional evidence. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must mtjet 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 capac&, or in a specialized knowledge cabacity, for one 
continuous year within three years preceding the beneficiary's application for admission iito 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. 5 214.2(1)(3) states that an individual petition filed on Foh 11129 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 sedtion. 
(ii) Evidence that the alien will be employed in an executive, managerial, or speciqllzed 
knowledge capacity, including a detailed description of the services to be perforrhed. 
(iii) Evidence that the alien has at least one continuous year of full time employtnent 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evldence that the ahen's pnor year of employment abroad was tn a posltion that was 
managerial, executive or involved spec~ahzed knowledge and that the allen's pr~or 
education, tramlng, and employment qualifies hrrn/her to perfom the mtehded 
SRC 04 066 52298 
Page 3 
services in the United States; however, the work in the Unlted 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. 
Sectlon 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), defines the term "managerial capac~ty" as an 
asstgnment wlthin an organization in which the employee pnmarily: 
(I) manages the organizatlon, or a department, subdivision, functton, or component of 
the organlzation; 
(n) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential funct~on wlthln the organlzation, or a department 
or subdrvlsion of the organlzat~on; 
(iii)' if another employee or other employees are directly supervised, has the authdrity to 
hire and fire or recommend those as well as other personnel actions (sich 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)(~) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(I) d~rects the management of the organizatlon or a major component or functlon of the 
organizatlon; 
(11) establishes the goals and pollcles of the organlzatlon, component, or functlon; 
(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 a December 16, 2003 letter submitted with the inltial petition, the petitloner described the beneficiary's 
proposed job duties as follows: 
SRC 04 066 52298 
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I 
As General Manager [the beneficlaryj wlll plan, develop, and establish policics and 
object~vcs $of [the forelgn company] In the Unlted States. He wlll dlrect and coord~nate 
buslness contracts in the entire operation of the subsidiary's market, and develdp other 
relevant policies and procedures ~mplement~ng the overall objectives of [the forelgn etltity]. 
The petitioner furti-ier stated on the Form 1-129 Petition that the beneficlary "wlll seek to expalpld the company 
whlle overseeing alil daily operations, mclud~ng accounts, personnel, and vendor contact." OnlForm 1-129, the 
petlt~oner 1ndlcated"hat it had four employees. 
On January 10, 2004, the dlrector requested addltlonal evidence. In part, the dlrector requested a copy of the 
current organizational chart for the United States entlty. In a response dated February 10, 2004, the pethoner, 
through counsel, submitted the following description of ~ts staffing: 
i 
1. Position: Vice President'General Manager 
~ist All Duties: Conduct all business accounting activities, banking, bill payment, 
salary, and insure funds availability; Marketing and sale of sbices; 
Negotiate cost of goods and merchandise purchases to assurd timely 
and economic resupply [sic] of merchandise; Oversee dispky and 
pricing of goods; Insure facilities comply with state and 10cai safety 
and operational requirements; Provide overall supervision .for all 
subordinates. 
2. Posit~on: Store Manager 
List All Duties: Oversee dally store activities, including work schedules, flayroll, , daily bank transactions, and customer service. 
3. POSI tion: Pressers (2 employees) 
Llst All Duties: Responsible for provld~ng front-end customer service, lncludiqg dry- 
cleanlng services. 
The pehtioner also submitted coples of ~ts Forms 941, Employer's Quarterly Federal Tax Return and ~ts 
Georgla Employer's Quarterly Wage and Tax Report for all four quarters of 2002 and the firstithree quarters 
of 2003. The most recent report reflected total wage payments of $6,194.25 to three employ$es dunng the 
thlrd quarter of 2003. Based on the wages reported over the seven quarters, the buslnesb consistently 
employed one full-t~me and two part-time employees. 
On March 4,2004, the d~rector denled the petit~on conclud~ng that the beneficlary would not be employed in a 
managerla] or executive capacity. The director specifically stated "the beneficlary wlll have to engage In [the] 
Y day to day business giyen the current structure of the company," notlng that the petitioner only had three other 
employees at the tlmelof fihng. 
I 
SRC 04 066 52298 
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On appeal, counsel for the petitioner asserts that the dlrector erred by conclud~ng that the benefictary would 
engage In non-managenal dutles, not~ng that the business employs a sufficient staff to relleve the beneficiary 
from performing operational functions. Counsel further describes the beneficiary's proposed dut~es as 
follows: 1 
[The beneficiary] is responsible for establishing policies and procedures. for the U.S. 
subsidiary, (as well as for all personnel decisions. He reports back to the Board of [the foreign 
entity] in India, but all [sic] [the beneficiary] makes all decisions for [the ~etitionef) taking 
into account the best interests of the Parent and U.S. companies. The Store Manager assists 
[the beneficiary] in his executive/management duties, including performing ani work 
,necessary in the marketing,inventory, and accounting fields. The two pressers at ;the dry 
cleaning sthre .function as sales clerks while also undertalcing, pressing duties. Fortvnitely, 
[the beneficiary] is not called upon to perfonn any nonmanagerial functions in the dag-to-day 
i 
ninning of 'ithe company, due to the nature of the small. business that is currently being 
operated. A': dry cleaning store needs only one clerk on duty at any given time, and that clerk 
is supervised by the Store Manager, leaving [the beneficiary] free to pursue other b,usiness I/ matters and opportunities. 
I 
1 
~h'e [benefiLiary9s] job duties include negotiating all contracts with suppliers,. as well as 1 scouting for additional investment opportunities. He also is in charge of accounts and ' 
marketing, duties similar to those he performed in India. 
Upon review, counskl's assertions are not persuasive. when examining the executive or managerial capacity 
, of the beneficiary, ihe AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2(1)(3)(i). The petitioner's description of the job duties must clearly describe thi duties to be 
performed by the beneficiary and indicate whether such duties ate either in an executive or managerial 
capacity. Id. The pltitioner does not clarify whether the beneficiary is claiming to be primaflily engaged in 
managerial duties under section 101(a)(44)(A) of the Act,.or primarily executive duties ;under section 
101(a)(44)(B) of thel~ct. A beneficiary may not claim to be employed as a hybrid "executivelmanager" and 
.rely on partial sections of the two statutory definitions. A petitioner must establish that a beqeficiary meets 
each of the four crit~ria set forth in the statutory definition for executive and thk statutory. definition for 
manager if it is representing the beneficiary is both an executive and a manager. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiaq's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states that 
the beneficiary will "plan, develop and establish policies and objectives," and "direct and coordinate business 
contracts." The petitibner did not, however, define the beneficiary's goals or policies, or clari$ the types of 
contracts to be coordiinated by the beneficiary, such that the AAO could determine whether such duty can be 
considered managerial. The petitioner also asserts that the beneficiary, is "in charge" of marketing and 
accounts, but did not identify any subordinate employees who perform routine day-lo-day marketing or 
booeeeping duties.  ina all^, the petitioner asserts that the beneficiary is "scouting for additional investment 
opportunities" but provided no additional explanation as to the specific duties involved within this broad 
responsibility. 
I 
SRC 04 066 5229d1 
Page 6 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require' a detailed description of the beneficiary's daily job duties. The petitioner has failed to 
answer a critical qiestion in this case: What does the beneficiary primarily do on a daily basis'?. The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co.,-Ltd. v. ~aka, 724 F. Supp. 
1 l03,, 1108 (E.D.N/Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Counsel is required to subst4ntiate his vague 
claims with a detiiled description of how the beneficiary's responsibility of running and managing the 
company would sat',sfy the requirements of either managerial or executive capacity. Going orb record without i supporting documentary,evidence is not sufficient for purposes of meeting the burden o$ proof in these 
proceedings. ~offe! of Sofici, 22 I&N Dec 158, 165 (Comm. 1998) (citing Matter of T+asure Crop of 
California, 14 I&N~ Dee. 190 (Reg. Comm. 1972). The provided job descriptions do not allbw the AAO to 
.determine the actual tasks the beneficiary will perform such that they can be classified a$ managerial or . 
executive. See 8 C.F.R. 5 214.2(1)(3)(ii). 
Whether the beneficiary is a managerial or executive employee turns on whether the petition4r has sustained 
its burden of provit& that his duties are 'primarily" managerial or gxecutive. See sections lOl(a)(44)(A) and 
(B) of the Act. ~ek, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial function's and what proportion would be non-managerial: The petitioner lists t~e beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends & them. This failure of documentation is important because several of tne beneficiary's 
proposed tasks, such as direct responsibility for marketing and sale of services, banlung, bill payment and !. 
purchasing, do not fall directly under traditiolial managerial or executive duties as defined in he statute. For 
this reason, the A40 cannot determine whether the beneficiary is primarily performing the duties of a 
manager. See IKEA \US, hc. v US. Depr of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
1 
As noted by cbunseljon appeal, although the director based his decision partially on the size of the enterprise 
and the number of sthff, the director did not take into consideration the reasonable needs of the ienterprise. As 
required by section i01(a)(44)(~) of the Act, if staffing levels are used as a factor indetermining whether an 
individual is acting i; amanagerial or executive capacity, CIS must fake into account the reashable needs of 
the organization, in light of the overall purpose and stage of development of the organization. 1 
Atthe time of filiig,'ithe petitioner was a two-year-old company operating a dry cleaning estab!ishment. The 
company claimed to employ. a store manager, plus two pressers. The petitioner's quarterly: wage reports 
establish that it condistently employed one full time and two part-time employees in the rieven quarters 
preceding the filing of this petition. In the most recent quarter, the two part-time employees, whose job titles 
have not been identified, worked, respectively, 16 and 24 hours per week on average, assuming that they 
received minimum wige. The petitioner submitted a copy of an advertisement for its store that jstates that the 
business is open six days a week for a total of 68 hours. The petitioner, although it has sugge'pted that only 
two employees are needed in the store at one time, has not explained who would perform dry cleaning 
services, handle customer transactjons, receive deliveries, and perform other operational duties during the ' 
many .hours when these part-time employees are not avail'able. Collectively, acritical analysis of the nature of I the petitioner's business brings into question how much of the beneficiary's time would actually be devoted to 
managerial or executive duties. Furthermore, the petitioner bears the burden of documenting what portion of 
the beneficiary's duties will be'managerial or executive and what proportion will be non-managerial or non- 
? 
SRC 04 066 52298 
Page 7 
executive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the lack of these 
percentages, the record does not demonstrate that the beneficiary will function primarily as a manager or 
executive. Rather, based on the record of proceeding, the beneficiary's job duties wilt principally be 
composed of non-qualifying duties related to the daily operations of the dry cleaning establishment. Such 
duties -would necessarily preclude him from functioning in a primarily managerial 'or exeautive role. An 
employee who primarily performs the tasks necessary to produce, a product or to providei services is not 
considered to be em+loyed in a managerial or executive capacity. Matter of Church ~cibntologbi International, 
19 I&N Dec. 593,604 (Comm. 1988). 
Furthermore, the reasonable needs of the petitioner w~ll not supersede the requirement that the beneficiary be 
"pr~mar~ly" employed In a managerial or executlve capaclty as required by the statute. See sectlons 
lOl(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1101(a)(44). The reasonable needs of the petltldner may just~fy 
a beneficiary who allocates 5 1 percent of his dutles to managerial or executlve tasks as opposetl to 90 percent, 
but those needs will not excuse a beneficiary who spends the majonty of hls or her t~me on non-qualifying 
duties. 
Finally, although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial ebployees. See 
section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees isupervised are 
professional. Section 101 (a)(44)(A)(iv) of the Act. Because the beneficiary is primarily supentising a staff of 
non-professional employees, the beneficiary cannot be deemed to be primarily acting in\ a managerial 
capacity. Although one of the petitioner's employees is designated "store manager" the petltioner has not 
established that this is, in fact, managerial or even supervisory in nature. Again, g$ing on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burdkn of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. ,at 165. 
. The record is not persuasive in demonstrating that the beneficiary has been or will be employed/ in a primarily 
managerial or executive capacity. The beneficiary's vaguely defined responsibilities and lack o%a subordinate , 
staff to perform n~n~qualifying duties preclude. CIS from classifying the beneficiary as manager or 
executive. The petitioner's evidence is not sufficient in establishing that the beneficiary will be primarily 
directing the management of the organization; establishing the goals and policies of thel organization; 
exercising wide latitude in discretionary decision-making; or receiving only general supervisic$ or direction 
from higher level executives. See section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B). : 
Furthermore, the record does not establish that the beneficiary will be primarily managing a function of the 
organization or functioning at a senior level within an organizational hierarchy other than in position title. See 
section 101(a)(44)(A), of the Act, 8 U.S.C. 4 1 101 (a)(44)(A). The beneficiary's job descriptibns depict an 
individual in charge of the day-to-day services of the organization, not that of a functional mana$er. , 
The petitioner indicates that it plans to hire additional employees in the future. However, 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 
SRC 04 066 52298 
Page 8 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Accordingly, the petltloner has not establ~shed 
that the benefic~ary wlll be employed m a primarily or managerlal capacity, as requ~red by 8 C.F.R. 9 
214.2(1)(3). For th~s reason the appeal w~ll be dlsmlssed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains dntirely 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.