dismissed L-1A Case: Fashion/Garments

U.S. Department of Homeland Security 
20 Mass. Ave. N.W. Rm. A3042 
Washington, DC 20536 
U.S. Citizenship 
and Immigration 
File: EAC 03 080 52062 Office: VERMONT SERVICE CENTER 
c 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section LOl(a)(lS)(L) of the 
Immigration and Nationality Act, 8 U.S.C. $ i LOl(a)( 15)(L) 
IN BEHALF OF PETITIONER: 
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 
Adrnini strat ive Appeals Office 
EAC 03 080 52062 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative AppeaIs Office (AAO) on appeal. The AAO wilt dismiss the 
appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employrnent of its executive 
manager as an L-1A nonimmigrant intracompany transferee pursuant to section lOi(a)(lS)(L) of the 
immigration and Nationality Act (the Act). 8 U.S.C. 6 1 lOI(a)(lS)(L). The petitioner is a corporation 
organized in the state of New York, which is engaged in the wholesale and import of a wide range of high - - - 
fashion ladies garments. The petitioner claims to be the subsidiary of 
located in New Delhi, India. The beneficiary was previously granted a two year period of stay which the 
petitioner now seeks to extend for an additional two years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary had 
been and will continue to be 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 as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner contends that the 
director erred by denying the petition, citing the "tremendous" amount of evidence that had been 
submitted to date in support of the beneficiary's managerial duties. In addition, counsel points out that 
the previous petition filed on behalf of the beneficiary for his initial stay in the U.S. was granted under 
almost identical circumstances, and therefore contends that the director was in error by failing to follow 
the previously issued decision in that matter. In support of this assertion, the petitioner submits a brief 
and additional evidence. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed 
the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, 
for one continuous year within three years preceding the beneficiary's application for admission into the 
United States. In addition. the beneficiary must seek to enter the United States temporarily to continue 
rendering his or her services to the same employer or a subsidiary or affiliate thereof in a managerial, 
executive, or specialized knowledge capacity. 
The regutation at 8 C.F.R. 5 214.2(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. 
EAC 03 080 52062 
Page 3 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing 
of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the alien's 
prior education, training, and employment qualifies 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. 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 (I)(l)(ii)(G) of this section; 
(b) Evidence that the United States entity has been doing business as defined in 
paragraph (I)( I)(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 managerial or executive 
capacity; and 
(e) Evidence of the financial status of the United States operation. 
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. § 1 IOl(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; 
EAC 03 080 52062 
Page 4 
(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. 4 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 poiicies 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, counsel for the petitioner submitted a detailed letter outlining the beneficiary's 
duties while employed by the U.S. entity. Specifically, counsel alleged that the beneficiary's duties were 
exclusively managerial in nature, and described his duties as follows: 
I. Analyze market conditions under New York and other parts of the 
United States to determine an appropriate marketing policy; determine 
the scope of business operations in the United States and design 
appropriate marketing policy; determine the scope of business operations 
in the United States and design appropriate operational and managerial 
structures in order to get this company to be fully operational and 
successful; 
2. Be responsible for all aspects of operating the company, including 
selection of location, personal matters, pricing policies, determination of 
products to be offered, negotiations with appropriate business partners 
etc. [Tlhe duties will also include overseeing and managing the finances 
of the company, including review and determination of appropriate 
strategies to make the company profitable; 
3. Develop and implement plans for both short-term as well as long term 
growth; determine and set corporate policies, goals, and objectives[:] 
EAC 03 080 52062 
Page 5 
4. As [the beneficiary] is well versed with the working of both 
organizations he manages coordination of production and supply with 
selling i.e. [cloordinating between India office and US office[;] 
5. He also manages invoicing, payment realization and banking aspect of 
the corporation for which an honest and dedicated person is needed[;] 
6. Being both technically and professionally qualified in the garment trade 
he is able to forecast trends and fashion before hand to enable sampling 
and production. 
In addition to the description of the beneficiary's duties, the petitioner submitted an expert opinion from 
mh.~.. an- PL.D., of dated January 3.2003. 
On February 21, 2003, the director requested additional evidence establishing that the beneficiary was 
employed in a capacity that was primarily managerial or executive in nature. The director requested 
specific documentation for the record, including evidence that the beneficiary would be employed in an 
executive capacity,' a breakdown of the beneficiary's hours and the time spent devoted to each particular 
duty, and information regarding the other ernpioyees of the U.S. entity. their positions, duties, and the 
hours they spent performing their duties. 
On April 11, 2003, the petitioner, through counsel, submitted a detailed response accompanied by the 
documentation requested by the director. Counsel's response, which provided a detailed overview of the 
beneficiary's duties and the percentage of time devoted to each of these duties. also included an updated 
expert opinion prepared by Ph.D. 
On May 27, 2003, the director denied the petition. The director detennined that the evidence in the 
record did not establish that the beneficiary would be employed in a primarily managerial or executive 
capacity. Speciftcally. the director found that the evidence in the record did not demonstrate that the 
beneficiary was supervising a subordinate staff of qualifying personnel. 
On appeal, counsel for the petitioner asserts that the director's decision was erroneous. Specifically, 
counsel alleges that the director ignored the expert opinions submitted on behalf of the beneficiary, and 
erred by failing to follow the precedent set by the approvat of the previous petition in this matter. 
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. 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 petitioner must specifically state whether the beneficiary is primarily employed in a 
L 
The AAO notes that the petitioner claimed that the beneficiary was employed in a primarily managerid 
capacity, whereas the director's request for evidence requested evidence of his performance of duties in 
an executive capacity. Despite any labels given to a beneficiary's position, the Service Centers and the 
AAO analyw the beneficiary's duties for eligibility under both definitions. 
EAC 03 080 52062 
Page 6 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be 
employed as a hybrid "executivelmanager" and rely on partial sections of the two statutory definitions. 
Prior to adjudication of the petition, counsel contended that the beneficiary had been employed in a 
capacity that was primarily managerial in nature. In support of these contentions, counsel submitted a 
detailed response to the director's request for evidence, which included an affidavit from Shri Bhanu 
Joshi, the general manager of the foreign entity. The affidavit provided the following description of the 
beneficiary's proposed duties: 
Managing the entire import and wholesale department of our corporation; 
Managing and overseeing the work of other management employees in our 
corporation in the United States; 
Hiring and firing high level employees and supervisors; and handling the day to 
day operations and major responsibilities of [the petitioner]. 
In addition, a letter from the petitioner provided a breakdown of the beneficiary's duties in a forty-eight 
hour workweek. which demonstrated that the majority of his time has been spent coordinating production 
and supply through selling, formulation of all policies regarding import and export sections of the 
business, and planning and forecasting business relations. 
The petitioner additionally provided a detailed description of the subordinate employees and their position 
requirements. The sales manager, who works thirty hours per week, is primarily responsible for going to 
appointments to book new orders and to report to the beneficiary on market timing. The assistant 
manager, who works twenty-five hours per week, is primarily responsible for general office work and 
paper work. There is no mention of the educational background of these employees, nor did the petitioner 
claim that either of these positions required a baccalaureate degree as a prerequisite to employment. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that the 
beneficiary was not employed in a primarily managerial or executive capacity. Specifically, upon review 
of the beneficiary's stated duties and the duties and credentials of his subordinate employees, it appears 
that the beneficiary is merely a first line supervisor. Despite the job titles given to the subordinate 
personnel. the beneficiary does not appear to be supervising other professional, managerial or supervisory 
employees. 
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 Q 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 IOl(a)(32) of the Act, 8 U.S.C. $ 1 lOl(a)(32), states that "[tlhe term profession shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
EAC 03 080 52062 
Page 7 
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. 817 (Comm. 
1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
In the instant case. the petitioner has not, in fact, established that an advanced degree is actually 
necessary, for example, to perform the customer service and administrative work of the assistant manager, 
who is among the beneficiary's subordinates. In addition, there is no mention of any educational 
prerequisite for the sales manager's position, which primarily entails booking new clients. Finally, there 
is no documentation in the record that indicates that these two employees supervise a staff of subordinate 
employees, thereby leading to the conclusion that the beneficiary is not supervising other managerial or 
supervisory employees. Thus, the petitioner has not established that these employees possess or require 
an advanced degree, such that they could be classified as professionals. Nor has the petitioner shown that 
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 
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. 
In addition, whether the beneficiary is a managerial or executive employee turns on whether the petitioner 
has sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(#)(A) and (B) of the Act. Here, the petitioner claims that his duties are "exclusively" managerial, 
yet the list of duties provided includes almost all non-managerial tasks. For example, the petitioner states 
that the beneficiary coordinates production and supply through sales. manages inventory and stocking, 
and is responsible for business expansion. It appears that in lieu of primarily performing managerial or 
executive functions, the beneficiary is in fact performing many of the same day-to-day tasks as his alleged 
subordinates. Although the assistant manager's position includes in its responsibilities the general office 
work and paper work, he is only employed with the U.S. entity for twenty-five hours per week and. of 
those hours, he devotes only sixteen hours to general clerical work. It is questionable, therefore, as to 
who conducts the general office duties during the sales manager's absence, since the sales manager is 
primarily out of the office at appointments. 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 Scientologv International, 19 I&N Dec. 593.604 (Comm. 1988). 
A managerial or executive employee must have authority over day-today operations beyond the level 
normally vested in a first-line supervisor, unless the supervised employees are professionals. See Id In 
this case, the supervised employees are not professional or managerial employees. as reflected by the 
record of proceeding. Accordingly, the petitioner has not established that the beneficiary will be 
employed in a primarily executive or managerial capacity. as required by 8 C.F.R. 5 214.2(1)(3). For this 
reason, the petition may not be approved. 
In addition, counsel for the petitioner asserts that the small number of employees in the U.S. entity 
unfairly prejudiced the director's decision. Although the director based his decision partially on the size 
of the enterprise and the number of staff. the director did not take into consideration the reasonable needs 
EAC 03 080 52062 
Page 8 
of the enterprise. As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive capacity, Citizenship and 
Immigration Services (CIS) must take into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. 
At the time of filing, the petitioner was a Cyear-old import and export company that claimed to have a 
gross annual income of $394,226.00. The firm employed the beneficiary as presidenttexecutive manager, 
plus a sales manager and an assistant manager. The AAO notes that all of the employees have managerial 
or executive titles. The petitioner did not submit evidence that it employed any additional subordinate 
staff members who would perform the actual day-to-day, non-managerial operations of the company. 
Based on the petitioner's representations, it does not appear that the reasonable needs of the petitioning 
company might plausibly be met by the services of the beneficiary as president and two managerial 
employees. Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack 
of staff in the context of reviewing the claimed managerial or executive duties. The petitioner must still 
establish that the beneficiary is to be employed in the United States in a primarily managerial or executive 
capacity. pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has 
not established this essential element of eligibility. 
Counsel for the petitioner also alleges that CIS approved other petitions that had been previously filed on 
behalf of the beneficiary. The director's decision does not indicate whether he reviewed the prior 
approvals of the other nonimmigrant petitions. If the previous nonimmigrant petitions were approved 
based on the same unsupported and contradictory assertions that are contained in the current record, the 
approval would constitute material and gross error on the part of the director. The AAO is not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See, e.g. Mutter of Church Scientologv Internationrrl. 19 I&N 
Dec. 593, 597 (Cornm. 1988). It would be absurd to suggest that CIS or any agency must treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 F.2d 1084, 1090 (6th 
Cir. 1987). cert. denied. 485 U.S. ioO8 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the beneficiary. the AAO would not be bound to follow the contradictory decision 
of a service center. Louisianu Philharmonic Orchestrn v. INS, 2000 WL 282785 (E.D. La.), am, 248 
F.3d 1 139 (5th Cir. 2001 ), cert. denied, 122 S.Ct 5 1 (2001). 
Finally, counsel contends that the director's disregard of the expert opinions submitted in support of the 
petition was erroneous. The AAO disagrees. While the opinions provided certainly show a diligent effort 
on behalf of the petitioner to provide a complete and thorough overview of the beneficiary's duties and 
his level of employment, the conclusion made by the doctors at Educated Choices LLC are merely 
persuasive, not definitive. Specifically, the expert opinions' conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co.. Ltd. v. Strvcr, 724 F. Supp. 
EAC 03 080 52062 
Page 9 
1103, 1108 (E.D.N.Y. 1989). afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates. Inc. v. Meissner, 1997 
WL 188942 at *5 (S.D.N.Y.). 
Upon review of the evidence in the record, the AAO concludes that the beneficiary will not be employed 
in a capacity that is primarily managerial or executive in nature. For this reason, the petition may not be 
approved. 
Although not discussed by the director, the AAO notes that the record contains insufficient evidence that 
the petitioner has a qualifying relationship with the foreign entity. The stock certificate submitted 
indicates that is the owner of the U.S. entity. This document contradicts the claim in the 
petition that is the sole owner of the U.S. entity. Moreover, as general 
evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the 
exact number issued to the shareholder, and the subsequent percentage ownership and its effect on 
corporate control. Additionally, a petitioning company must disclose all agreements relating to the voting -. . - 
of shares, the distribution of profit, the management and direction of the subsidiary, and any other factor 
affecting actual control of the entity. See Mutter of Siemens Medical Systems. Inc., 19 l&N Dec. 362 (BIA 
1986). Without full disclosure of all relevant documents, CIS is unable to determine the elements of 
ownership and control. Therefore, for this additional reason the petition may not be approved. 
In addition, the AAO notes that the stock certificate submitted is filled out incorrectly and is not 
supported by additional corroborating evidence. Doubt cast on any aspect of the petitioner's proof may, 
of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
Finally, the AAO notes that the petitioner submitted its Forms 1120, Corporate Tax Returns, for the years 
2000, 2001, and 2002. As required under 8 C.F.R. 8214.2(1)(14)(ii)(d) and as requested by the director, a 
petitioner is required to submit evidence of wages paid to its employees in order to be eligible for a visa 
extension. The tax returns for all three years indicated that no wages or salaries were paid to any 
employees during these years, yet the petitioner claims that the beneficiary and two additional employees 
have been working for the U.S. entity in managerial capacities. These documents are contradictory and 
inconsistent with the petitioner's claim that the U.S. entity employs three individuals. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). For this additional reason. the petition may not be approved. 
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. 8 1361. Here, that burden has not been met. 
Accordingly, the director's decision will be affirmed and the petition will be denied. 
EAC 03 080 52062 
Page 10 
ORDER: The appeal is dismissed.