dismissed L-1A Case: Floral Design

U.S. Department of Homeland Security 
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U.S. Citizenship and Immigration Services 
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FILE: WAC 08 144 54748 OFFICE: CALIFORNIA SERVICE CENTER Date: ApR 2 7 2009 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
Appeals Office 
WAC 08 144 54748 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 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 employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. €j 1 101(a)(15)(L). The petitioner, a Hawaii corporation, states that it is engaged in designing and 
selling floral arrangements. The petitioner states that it is an affiliate of) located in 
Yokohama, Japan. It seeks to employ the beneficiary as its general manager for a period of three years. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary will 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. On appeal, counsel for the petitioner asserts that the director placed undue 
emphasis on the small size of the petitioning corporation in determining that the beneficiary will not be 
employed in a qualifying managerial or executive capacity. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a 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 the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. €j 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training and employment qualifies himther 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. 
. WAC 08 144 54748 
Page 3 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 9 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means 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 10 l(a)(44)(B) of the Act, 8 U.S.C. 9 1 101(a)(44)(B), provides: 
The term "executive capacity" means 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. 
WAC 08 144 54748 
Page 4 
The petitioner filed the Form I- 129, Petition for a Nonimmigrant Worker, on April 2 1, 2008. The petitioner 
indicated on Form 1-129 that the U.S. company was established in 2003 and stated that its current number of 
employees is "Four (projection)." In a letter dated April 1, 2008, the petitioner explained that the company 
provides "floral design and arrangement related services for Japanese wedding couples at their wedding 
ceremonies in Hawaii." The petitioner stated that the Hawaiian company has been operating without a 
manager on site, but that, due to an increase in sales and clientele, it has recently made the decision to assign 
the beneficiary to the United States to serve as general manager. 
The petitioner described the beneficiary's proposed duties as follows: 
Recruiting and hiring all initial employees including flower designers and marketing 
personnel; 
Conducting meetings with tour companies, wedding chapels, and wholesalers in 
Hawaii to introduce and promote the company's services and to enter into business 
partnerships; 
Establishing financial objectives of the company based on market conditions; 
Establishing annual budgets for the Hawaii affiliate; 
Authorizing the purchase of all necessary equipment; and 
Serving as liaison between the Hawaii and Japan operations. 
The director issued a request for additional evidence on April 28, 2008. The director instructed the petitioner 
to provide, inter alia: (1) a more detailed description of the beneficiary's proposed duties, indicating the 
percentage of time she would devote to each listed duty; (2) a copy of the U.S. company's organizational chart 
clearly identifying the beneficiary and all of her proposed subordinates by name and job title; (3) a brief 
description of job duties, educational level, annual salarieslwages, and immigration status for all employees 
who will work under the beneficiary's supervision; (4) copies of state quarterly wage reports for the last four 
quarters; and (5) copies of the U.S. company's payroll summary and IRS Forms W-2 and W-3. 
In a response dated May 21, 2008, counsel for the petitioner submitted the following description of the 
beneficiary's duties: 
Review current operation data of the Hawaii operations, and establish attainable long 
and short range goals for the company's future operations based on economic 
conditions and customer demands. (5%) 
Plan and implement marketing strategies to effectively promote the company's flower 
products to local wedding and tour operators to increase sales and market share. (5%) 
Recruit, and train additional personnel including designers and sales persons to ensure 
that the company has sufficient man power to provide quality products to meet the 
increased demands. (1 5%) 
Establish budgets of the Hawaii operations, and monitor spending to ensure efficiency 
of operations including reviewing and authorizing all major spending such as purchase 
of inventories and advertisement. (15%) 
WAC 08 144 54748 
Page 5 
Manage daily activities of the restaurant including making shift assignments, 
supervising designers in creating new flower designs to cater to customers' needs, and 
resolving customer complaints. (50%) 
Prepare agenda and preside at weekly staff meetings to improve quality of products, 
service, and to increase sales and profits. (5%) 
Conduct annual employee evaluations, and make decisions regarding employees' 
promotion, bonus, and increase of compensation. (5%) 
The petitioner submitted a copy of the U.S. company's organizational chart, which shows that the company 
currently has two employees, a sales manager and a flower designer. The petitioner submitted copies of its 
state quarterly wage reports and IRS Forms W-2 confirming payments to these employees in 2007. Both 
employees earned less than $20,000. 
The director denied the petition on June 19, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. In denying 
the petition, the director found that the job duties, as stated in counsel's letter dated May 21, 2008, "strain 
credulity," given the nature of the petitioner's business and the company's current staffing levels. The director 
found that it is more likely than not that the beneficiary will be involved in designing floral arrangements and 
otherwise performing many aspects of the day-to-day operation of the business. The director acknowledged 
that the beneficiary would supervise two subordinate employees, but found insufficient evidence to establish 
that they occupy professional positions. The director concluded that the petitioning company has not 
established that it requires the services of an employee who would perform primarily managerial or executive 
duties given its current stage of development. 
On appeal, counsel for the petitioner asserts that the beneficiary will serve as the top manager in the United 
States and also serve as an executive because she will be in charge of the U.S. company's direction, will 
establish its goals and policies, will exercise wide latitude in discretionary decision-making, and will only 
receive general direction from the president and the Board of Directors. 
Counsel asserts that the director placed undue emphasis on the fact that the petitioner has only two 
employees, thus contradicting USCIS's own guidance for L-1 petitions filed by small- and medium-sized 
organizations. Counsel emphasizes that USCIS should encourage and facilitate the growth of small businesses 
such as the petitioning company. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 214.2(1)(3)(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. In addition, the definitions of executive and managerial 
capacity each 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 show that the beneficiary 
primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to- 
day functions. Champion World, Inc, v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9'h Cir. July 30, 
1991). 
, WAC 08 144 54748 
Page 6 
Here, the record indicates that the beneficiary will devote 50 percent of her time to "manage the daily 
operations of the restaurant including making shift assignments, supervising designers in creating new flower 
designs to cater to customers' needs, and resolving customer complaints." Since the petitioner does not 
operate a restaurant, the credibility of the position description is questionable. 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). 
Nevertheless, the petitioner has not shown how the beneficiary's responsibility for supervising a floral 
designer or performing customer-service duties, would rise to the level of managerial or executive capacity as 
those terms are defined in the statute. 
The beneficiary will also be responsible for marketing the company products to local wedding and tour 
operators, training any new salespeople and floral designers hired by the company, and monitoring the 
company's spending. The petitioner has not articulated how these duties would qualify as managerial or 
executive in nature pursuant to the statutory definitions. Overall, based on the position descriptions 
submitted, the amount of time the beneficiary would devote to performing first-line supervisory, marketing, 
training and administrative duties would exceed the amount of time she would devote to potentially 
qualifying duties such as establishing short- and long-range goals for the company; recruiting and hiring 
personnel; establishing budgets, running a weekly staff meeting, and performing annual employee 
evaluations. The petitioner has the burden of establishing that the beneficiary is "primarily" performing 
managerial or executive duties. Sections 101(a)(44)(A) and (B) of the Act. 
 Here, it is evident that the 
beneficiary would be performing primarily non-qualifying duties; therefore it cannot be concluded that she 
would be employed in a primarily managerial or a primarily executive capacity. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. tj 1 10 1 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. 3 2 14.2(1)(1)(ii)(B)(2). 
The petitioner indicates that the beneficiary would serve as first-line supervisor for one sales employee and 
one flower designer. 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 10 1 (a)(32) of the Act, 8 U.S.C. tj 1 10 1 (a)(32), states that "[tlhe term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." The term "profession" contemplates 
knowledge or learning, not merely skill, of an advanced type in a given field gained by a prolonged course of 
specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into 
the particular field of endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of Ling, 13 I&N 
Dec. 3 5 (R.C. 1968); Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
WAC 08 144 54748 
Page 7 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. Although requested by the director, the petitioner did not provide the level of education 
required to perform the duties of its sales employee or flower designer, and it has thus not established that the 
beneficiary would manage professionals. 
Moreover, the petitioner's description of the beneficiary's duties cannot be considered in the abstract. When 
examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the record, 
including descriptions of a beneficiary's duties and those of his or her subordinate employees, the nature of 
the petitioner's business, and any other facts contributing to a complete understanding of a beneficiary's actual 
role in a business. 
Pursuant to section lOl(a)(44)(C) of the Act, 8 U.S.C. $ 1 10 l(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, USCIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family Inc. v. US. Citizenship and Immigration 
Services 469 F. 3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 
175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The petitioner operates a three-year-old floral design business that appears to have been operating with one 
flower designer and one sales employee. Based on the lease and photographs provided, the petitioner 
currently operates from a 328 square foot office with one computer workstation, shelves to hold supplies, and 
a table on which the flower arrangements are prepared. Although requested by the director, the petitioner has 
opted not to provide job descriptions for its two employees, and it is therefore unclear who is responsible for 
duties such as purchasing materials, issuing invoices, day-to-day administrative and bookkeeping tasks, and 
delivering floral arrangements to customers. 
While the petitioner claims that it now requires the services of a manager due to an increase in its level of 
sales and number of clients, and based on a desire to further expand its business, it has submitted no evidence 
in support of its claim. The petitioner has only provided its financial results for the fiscal year ended on 
August 3 1,2006, at which time it reported net income of $0. The petitioner has not provided a business plan, 
financial projections or any other evidence in support of its claim that it can currently support the hiring of 
additional staff, a budget or projected expenses for the U.S. company, or a clear timeline for hiring additional 
staff in the future. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Cra3 of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
WAC 08 144 54748 
Page 8 
Regardless, 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 Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
 The petitioner must 
establish that the beneficiary would be performing primarily managerial or executive duties immediately upon 
assuming her role as general manager of the U.S. company, not at some future date when the petitioner hires 
additional employees and expands the scope of its operations. Until such employees are hired, it is reasonable 
to believe that the beneficiary herself would assist the sales person and floral designer in taking and filling 
customer orders. It is not clear based on the evidence submitted that the company has an immediate need for 
an employee who would perform primarily managerial or executive duties. As discussed above, the 
beneficiary's proposed duties, as described by the petitioner, would not be primarily managerial or executive 
in nature. 
The reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily" 
employed in a managerial or executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) 
of the Act, 8 U.S.C. 8 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who 
allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 90 percent, but those needs 
will not excuse a beneficiary who spends the majority of his or her time on non-qualifying duties. 
Even though the petitioning enterprise still appears to be in an early stage of organizational development and 
anticipates additional growth, the petitioner is not relieved from meeting the statutory requirements. Again,a 
visa petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or medium- 
size businesses. However, the AAO has consistently required the petitioner to establish that the beneficiary's 
position consists of primarily managerial or executive duties and that the petitioner will have sufficient 
personnel to relieve the beneficiary from performing operational andlor administrative tasks. The AAO's 
holding is based on the conclusion that the petitioner failed to establish that the beneficiary will be primarily 
performing managerial or executive duties, rather than on the size of the petitioning entity. The beneficiary 
will not be considered to be employed in a managerial capacity simply because she has been given a 
managerial job title and placed at a senior level in the petitioner's organizational chart. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1 108. 
Based on the foregoing discussion, the petitioner has failed to establish that the beneficiary will be employed 
in the United States in a primarily managerial or executive capacity. The petitioner has not submitted 
additional evidence on appeal to overcome the director's determination. Accordingly, the appeal will be 
dismissed. 
Beyond the decision of the director, the AAO finds that the record as presently constituted does not establish 
that the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity, 
as required by 8 C.F.R. fj 214.2(1)(3)(iv). The petitioner indicate that the beneficiary's duties as general 
manager for the foreign entity include: recruiting, hiring and training employees; directing designers engaged 
in designing and producing flower arrangements; planning and preparing work schedules and assignments; 
WAC 08 144 54748 
Page 9 
establishing annual operating budgets and monitoring expenses; implementing marketing strategies to 
increase sales volume; reviewing and approving major spending; attending trade shows and conferences to 
promote the company's services; and reviewing and signing major contracts. Based on this description, it 
appears that the beneficiary likely performs a combination of managerial, first-line supervisory and non- 
qualifying marketing and promotion duties. However, the AAO is unable to determine whether the claimed 
managerial duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily 
performs non-managerial administrative or operational duties. The petitioner's description of the beneficiary's 
job duties does not establish what proportion of the beneficiary's duties is managerial in nature, and what 
proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
The organizational chart for the foreign entity shows that the beneficiary reports to the ownerlpresident of the 
company and supervises two designers, one sales manager and one sales representative. The record does not 
contain job descriptions for the other employees or indicate the ownerlpresident's level of involvement in the 
company's operation, and it is not clear who performs the company's purchasing, finance, and administrative 
functions. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 165. 
Overall, the evidence of record is not persuasive in establishing that the beneficiary has performed primarily 
managerial or executive duties in her role as general manager of the foreign entity. For this additional reason, 
the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if he or she shows that the AAO abused its discretion 
with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. 
Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.