dismissed L-1A Case: Dry Cleaning

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tmarlondmphaey 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rni. A3042 
Wash~ngton, DC 20429 
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File: SRC 04 066 52298 Office: TEXAS SERVICE CENTER Date: 1 0 2~5 
IN RE: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the I migration 
and Nationality Act, 8 U.S.C. $ 1101(a)(15)(L) 1 
IN BEHALF OF PETITIONER: I 
INSTRUCTIONS: 1 
This is the decision of the Administrative Appeals Office in your case. All documents have be 
the office that originally decided your case. Any further inquiry must be made to that office. 
I-- "-4 . -q 
Robert P. Wiemann, Director 
I\ Administrative Appeals Office 
i 
SRC 04 066 52298 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant isa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss th 1 appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
U.S.C. § 1101(a)(15)(L). The petitioner, a Georgia corporation, operates a dry 
claims that it is the subsidiary of Pravin Builders located in Kolol, India. The 
beneficiary's status from that of a B-2 visitor so that he may serve as its 
period. 
The director denied the petition concluding that the petitioner did not establish that the ben 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner 
erroneously concluded that the beneficiary would be engaged in non-managerial 
the reasonable needs of the petitioner's small business when analyzing its 
assertion, the petitioner submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must 
beneficiary in a qualifying managerial or executive capacity, or in a specialized 
continuous year within three years preceding the beneficiary's application 
States. In addition, the beneficiary must seek to enter the United States 
or her services to the same employer or a subsidiary or affiliate 
specialized knowledge capacity. 
The regulation at 8 C.F.R. tj 214.2(1)(3) states that an individual petition filed on Form I 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will empl 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this se 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
knowledge capacity, including a detailed description of the services to be 
(iii) Evidence that the alien has at least one continuous year of full time 
abroad with a qualifying organization within the three years preceding 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
managerial, executive or involved specialized knowledge and that the 
education, training, and employment qualifies himlher to perform 
SRC 04 066 52298 
Page 3 
services in the United States; however, the work in the United States need n 
same work which the alien performed abroad. 
The primary issue in the present matter is whether the beneficiary will be employed by 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or compo 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or ma 
employees, or manages an essential function within the organization, or a 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the auth rity to 
hire and fire or recommend those as well as other personnel actions (s ch as 
promotion and leave authorization), or if no other employee is directly supe ised, 
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 
which the employee has authority. A first line supervisor is not 
acting in a managerial capacity merely by virtue of the 
duties unless the employees supervised are professional. 
Section 10 l(a)(44)(B) of the Act, 8 U.S.C. 9 1 10 1 (a)(44)(B), defines the term "executive c 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 1 
(iii) exercises wide latitude in discretionary decision making; and I 
(iv) receives only general supervision or direction fiom higher level executives, the oard 
of directors, or stockholders of the organization. n 
In a December 16, 2003 letter submitted with the initial petition, the petitioner described the 
proposed job duties as follows: 
SRC 04 066 52298 
Page 4 
As General Manager [the beneficiary] will plan, develop, and establish poli 
objectives of [the foreign company] in the United States. He will direct and 
business contracts in the entire operation of the subsidiary's market, and 
relevant policies and procedures implementing the overall objectives of [the 
The petitioner further stated on the Form 1-129 Petition that the beneficiary "will seek to exp d the company 
while overseeing all daily operations, including accounts, personnel, and vendor contact." On Form 1-129, the 
petitioner indicated that it had four employees. 9' 
On January 10, 2004, the director requested additional evidence. In part, the director 
current organizational chart for the United States entity. In a response dated February 
through counsel, submitted the following description of its staffing: 
1. Position: Vice PresidentlGeneral Manager 1 
List All Duties: Conduct all business accounting activities, banking, bill p yrnent, 
salary, and insure funds availability; Marketing and sale of s rvices; 
Negotiate cost of goods and merchandise purchases to assur timely 
and economic resupply [sic] of merchandise; Oversee disp y and 
pricing of goods; Insure facilities comply with state and loca safety 
and operational requirements; Provide overall supervision for all 
subordinates. 1 
2. Position: Store Manager 1 
List All Duties: Oversee daily store activities, including work schedules, ayroll, 
daily bank transactions, and customer service. d 
3. Position: Pressers (2 employees) 1 
List All Duties: Responsible for providing front-end customer service, includi 
cleaning services. 
The petitioner also submitted copies of its Forms 941, Employer's Quarterly Federal Tax 
Georgia Employer's Quarterly Wage and Tax Report for all four quarters of 2002 and the 
of 2003. The most recent report reflected total wage payments of $6,194.25 to three 
third quarter of 2003. Based on the wages reported over the seven quarters, the 
employed one full-time and two part-time employees. 
On March 4,2004, the director denied the petition concluding that the beneficiary would not be imployed in a 
managerial or executive capacity. The director specifically stated "the beneficiary will have to e 
day to day business given the current structure of the company," noting that the petitioner only 
employees at the time of filing. 
SRC 04 066 52298 
Page 5 
On appeal, counsel for the petitioner asserts that the director erred by concluding that the b 
engage in non-managerial duties, noting that the business employs a sufficient staff to 
from performing operational functions. Counsel further describes the 
follows: 
[The beneficiary] is responsible for establishing policies and procedures for 
subsidiary, as well as for all personnel decisions. He reports back to the Board of 
entity] in India, but all [sic] [the beneficiary] makes all decisions for [the 
into account the best interests of the Parent and U.S. companies. The 
[the beneficiary] in his executive/management duties, including 
necessary in the marketing, inventory, and accounting fields. The 
cleaning store function as sales clerks while also undertaking 
[the beneficiary] is not called upon to perform any 
running of the company, due to the nature of 
operated. A dry cleaning store needs only one 
is supervised by the Store Manager, leaving 
matters and opportunities. 
The [beneficiary's] job duties include negotiating all contracts with suppliers, as 
scouting for additional investment opportunities. He also is in charge of accou 
marketing, duties similar to those he performed in India. 
On review, the petitioner has provided a vague and nonspecific description of the beneficia 
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the 
the beneficiary will "plan, develop and establish policies and objectives," and "direct and 
contracts." The petitioner did not, however, define the beneficiary's goals or policies, 
contracts to be coordinated by the beneficiary, such that the AAO could determine 
considered managerial. The petitioner also asserts that the beneficiary is "in 
accounts, but did not identify any subordinate employees who perform 
bookkeeping duties. Finally, the petitioner asserts that the beneficiary is 
opportunities" but provided no additional explanation as to the specific 
responsibility. 
Upon review, counsel's assertions are not persuasive. When examining the executive or 
, of the beneficiary, the AAO will look first to the petitioner's description of the job duties. 
mandgerial capacity 
See 8 C.F.R. 
242()(3)(ii). The petitioner's description of the job duties must clearly describe th. duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive 
capacity. Id. The petitioner does not clarify whether the beneficiary is claiming to be primarily 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties 
101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid "executive~manager" 
rely on partial sections of the two statutory definitions. A petitioner must establish that a 
each of the four criteria set forth in the statutory definition for executive and the statutory 
manager if it is representing the beneficiary is both an executive and a manager. 
or managerial 
engaged in 
under section 
and 
beneficiary meets 
definition for 
SRC 04 066 52298 
Page 6 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is 
regulations require a detailed description of the beneficiary's daily job duties. The petit 
answer a critical question in this case: What does the beneficiary primarily do on a daily 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
1 103, 1 108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Counsel is required to su 
claims with a detailed description of how the beneficiary's responsibility of running 
company would satisfy the requirements of either managerial or executive capacity. Goin 
supporting documentary evidence is not sufficient for purposes of meeting the burde 
proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). The provided job descriptions do n 
determine the actual tasks the beneficiary will perform such that they can be classi 
executive. See 8 C.F.R. $ 214.2(1)(3)(ii). 
Whether the beneficiary is a managerial or executive employee turns on whether the 
its burden of proving that his duties are "primarily" managerial or executive. See 
(B) of the Act. Here, the petitioner fails to document what proportion of the 
managerial functions and what proportion would be non-managerial. The 
duties as including both managerial and administrative or operational tasks, 
beneficiary spends on them. This failure of documentation is important 
proposed tasks, such as direct responsibility for marketing and sale of 
purchasing, do not fall directly under traditional managerial or executive 
this reason, the AAO cannot determine whether the beneficiary is 
manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
As noted by counsel on appeal, although the director based his decision partially on the size 
and the number of staff, the director did not take into consideration the reasonable needs of 
required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in 
individual is acting in a managerial or executive capacity, CIS must take into account 
the organization, in light of the overall purpose and stage of development of the organization. 
At the time of filing, the 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 consistently employed one full time and two part-time employees in the even quarters 
preceding the filing of this petition. In the most recent quarter, the two part-time employees, w ose job titles 
have not been identified, worked, respectively, 16 and 24 hours per week on average, assu ing that they 
received minimum wage. The petitioner submitted a copy of an advertisement for its store that states that the 
business is open six days a week for a total of 68 hours. The petitioner, although it has sugge ted that only 
two employees are needed in the store at one time, has not explained who would perform dry cleaning 
services, handle customer transactions, receive deliveries, and perform other operational duti s during the 
many hours when these part-time employees are not available. Collectively, a critical analysis o the nature of 
the petitioner's business brings into question how much of the beneficiary's time would actually, 1 e 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-manaderial or non- 
SRC 04 066 52298 
Page 7 
executive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given t 
percentages, the record does not demonstrate that the beneficiary will function primarily 
executive. Rather, based on the record of proceeding, the beneficiary's job duties 
composed of non-qualifying duties related to the daily operations of the dry cleaning 
duties would necessarily preclude him from functioning in a primarily managerial or 
employee who primarily performs the tasks necessary to produce a product or to 
considered to be employed in a managerial or executive capacity. Matter of Church 
19 I&N Dec. 593,604 (Comm. 1988). 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that 
"primarily" employed in a managerial or executive capacity as required by the 
10 l(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1 10 1 (a)(44). The reasonable needs of the 
a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as 
but those needs will not excuse a beneficiary who spends the majority of his or her 
duties. 
Finally, although the petitioner asserts that the beneficiary is managing a subordinate staff, 
establish that the subordinate staff is composed of supervisory, professional, or 
section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be 
managerial capacity merely by virtue of his or her supervisory duties unless 
professional. Section 101(a)(44)(A)(iv) of the Act. Because the beneficiary is 
non-professional employees, the beneficiary cannot be deemed to be 
capacity. Although one of the petitioner's employees is designated 
established that this position is, in fact, managerial or even 
without supporting documentary evidence is not sufficient 
these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
The record is not persuasive in demonskating that the beneficiary has been or will be 
managerial or executive capacity. The beneficiary's vaguely defined responsibilities 
staff to perform non-qualifying duties preclude CIS fiom classifying the 
executive. The petitioner's evidence is not sufficient in establishing that the 
directing the management of the organization; establishing the goals and 
exercising wide latitude in discretionary decision-making; or receiving only 
from higher level executives. See section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B). 
Furthermore, the record does not establish that the beneficiary will be primarily managing a 
organization or functioning at a senior level within an organizational hierarchy other than in 
section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A). The beneficiary's job 
individual in charge of the day-to-day services of the organization, not that of a 
The petitioner indicates that it plans to hire additional employees in the future. However, 
establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition 
at a future date after the petitioner or beneficiary becomes eligible under a new set of 
SRC 04 066 52298 
Page 8 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Accordingly, the 
that the beneficiary will be employed in a primarily or managerial capacity, as 
2 14.2(1)(3). For this reason the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 1