dismissed L-1A Case: Food Industry

US. Department of Homeland Security 
20 Massachusetts Ave.. N.W., Rm. A3042 
Washiilgton, DC 20529 
W.S. Citizenship 
and Immigration 
Services 
FILE: EAC 03 196 53 125 Office: VERMONT SERVICE CENTER ~ate;jUM 1 a 2x5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 11 01 (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 ariginally decided your case. Any further inquiry must be made to that office. 
P. Wiemann, Director 
dministrattve Appeals Office 
EAC 03 196 53 125 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Senice Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 2001 and 
kish and Mediterranean based foods. The petitioner claims to be a 
located in Mersin, Turkey. The petitioner's initial petition was 
approved allowing the beneficiary to enter the United States to operate its new office in an L-1A 
classification. The petitioner now seeks to extend its authorization to employ the beneficiary temporarily in 
the United States as its president for three years, at an annual salary of $35,000.00. The director determined 
that the petitioner had failed to submit sufficient evidence to establish that (1) there was a qualifying 
relationship between the U.S. and foreign entities; (2) the beneficiary had been employed by the foreign entity 
in a primarily managerial or executive capacity; and (3) the beneficiary would be employed by the US, entity 
in a primarily managerial or executive capacity. 
On appeal, counsel disagrees with the director's decision and asserts that the beneficiary will be employed by 
the U.S. entity in a primarily managerial or executive capacity. 
To establish L-1 eligibility under section 10l(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 2 14.2(1)( I)($ states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or 
her application for admission into the United States, has been employed abroad continuously 
for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to render his 
or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in 
a capacity that is managerial, executive, or involves specialized knowledge. 
The regulation 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 
alren are qualifying organizations as defined in paragraph (l)(I)(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 fulI-time employment 
abroad with a qualifying organization with the three years preceding the filing of the 
petition. 
EAC 03 196 53 125 
Page 3 
(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 himher to perform the intended serves 
in the United States; however, the work in the United States need not be the same 
work which the alien performed abroad. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 6 110l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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 empIoyees are directly supewised, 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 
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 1 10 1 (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. 
Section 10 1 (aM4)(C) of the Act, 8 U.S.C. 1 10 1 (a)(44)(C), provides: 
EAC 03 196 53125 
Page 4 
If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, the Attorney General shall take into account the reasonable 
needs of the organization, component, or function in light of the overall purpose and stage of 
development of the organization, component, or function. An individual shall not be considered 
to be acting in a manageria1 or executive capacity (as previously defined) merely on the basis of 
the number of employees that the individual supervises or has supervised or directs or has 
directed. 
The director determined that the petitioner had failed to submit requested evidence to show that the foreign 
entity had paid for its stock ownership in the U.S. entity as reported in the amount of $15,300.00. The 
director also determined that the petitioner had failed to submit sufficient evidence to reconcile the 
discrepancies noted in the petitioner's tax documents and other business records. The director concluded that 
the petitioner had failed to establish that the US. entity and the foreign company continued to be qualifying 
organizations as required by the regulations. Counsel fails to address the director's objections on appeal. 
Therefore, the director's decision with regard to the nonexistence of a qualifying relationship between the 
U.S. and foreign entities is affirmed. 
The director stated that the petitioner had failed to submit sufficient evidence to establish that the beneficiary 
had been employed by the foreign entity in a primarily managerial or executive capacity. The director noted 
that the petitioner failed to subrntt as requested an organizational chart, foreign employee's job descriptions, 
and a list of the sl~bordinate managers under the direction of the beneficiary. On appeal, counsel fails to 
address the director's objections. Therefore, the director's decision with regard to the lack of evidence to 
demonstrate that the beneficiary had been employed by the foreign entity in a primarily managerial or 
executive capacity will be affirmed. 
In a letter of support, dated June 23,2003, counsel described the beneficiary's duties as: 
The beneficiary has been working for the petitioner company as president . . ..In this position 
the beneficiary has been responsible for expanding the petitioner company's business in the 
United States. In fulfilling his job duties the beneficiary is responsible to and answers only to 
the parent company Board of Directors .... Due to the work of the beneficiary the petitioner 
company has also hired staff - which now consist of five employees.. .. 
The beneficiary shall continue to work for the petitioner company as president. In this 
capacity he shall continue with his executive efforts for the petitioner company. He shall 
develop the policy, monitor the staff in import & export issues, negotiate with new vendors 
and ensure that the company to [sic] continues to expand and has enough adequate trained 
staff to meet the growing needs of the clients. 
In the request for evidence, dated July 2, 2003, the director requested that the petitioner: 
Submit a comprehensive description of the beneficiary's proposed duties. Also indicate how 
the beneficiary's duties will be managerial or executive in nature. For executive or 
managerial consideration, you must also: (1) demonstrate that the beneficiary will function at 
a senior level within an organizational hierarchy as well as in position title; or (2) 
demonstrate that the beneficiary will be managing a subordinate staff of professional, 
EAC 03 196 53125 
Page 5 
managerial, or supervisory personnel who will relieve himlher from performing non- 
qualifying duties, if appropriate. 
Submit a list of your United States employees that identifies each employee by name and 
position title. In addition, submit a complete position description for each of these 
employees, including the beneficiary. Submit a breakdown of the number of hours devoted 
to each of the employee's job duties on a weekly basis, including one for the beneficiary. 
Submit copies of Form 941 and Form WR-30, with all attachments, for the two most recent 
quarters available. 
In response to the director's request for evidence, counsel stated: 
Presently there are five people that work for the US Company. The beneficiary is the highest 
executive of the US Company. The beneficiary hired the four other persons to work for the 
US Company. The beneficiary hired [two] management positions and three sales and 
administrative positions .... We expect that in 2004 we will hired [sic] an additional staff of 
four to five persons. 
The petitioner submitted as evidence copies of the U.S. entity's IRS Form 1120, U.S. Corporation Income 
Tax Return for 2002, and Form 941, Employer's Quarterly Federal Tax Return for the quarters ending March 
3 1,2003, and June 30,2003. There's also a Form WR-30 for the quarter ending March 3 1,2003. 
The director noted that there existed ~nconsistencies in the number of employees employed by the U.S. entity. 
The director also noted that the petitioner had failed to submit job descriptions or a breakdown of the 
employee's duties on a weekly basis. The director stated that based upon evidence in the record, it appeared 
that the petitioning entity was a "grocery store" and that as such, with the limited number of employees, the 
beneficiary would be engaged primarily in the day-to-day non-managerial operational duties of the 
organization. The director also stated that the petitioner had failed to demonstrate that the entity had grown to 
a point where it would be able to support a managerial or executive position. 
On appeal, counsel argues that the evidence of record is sufficient to establish that the U.S. entity has 
conducted sufficient business to support an executive position in that it has realized over one rnlllion dollars 
in sales and trade. Counsel also argues that the petitioning entity employs five individuals and that the 
business will continue to expand. Counsel further argues that it would be illogical for Citizenship and 
Immigration Services (CIS) to deny the instant petition where it has approved a previous petition submitted 
by the petitioner. 
Counsel's argument is 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. $ 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 actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Suva, 724 F. Supp. 1 103,1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The petitioner must show 
that the beneficiary performs the high level responsibilities that are specified in the definitions, and that the 
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her 
time on day-today functions. Champion World. Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. 
EAC 03 196 53125 
Page 6 
July 30, 1991). Although the petitioner describes the beneficiary's duties as being managerial or executive in 
nature, a review of the record demonstrates that the petitioning entity is still in its developmental stages and 
that as such the beneficiary will primarily perform the day-to-day business activities of the organization rather 
than primarily performing the high level responsibilities that are specified in the definitions. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties wilt include developing policy. The petitioner did not, however, define the poIicies of 
the organization. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). Specifics are clearly an important Indication of whether a beneficiary's duties are 
primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. , 724 F. Supp. at 1103. 
The petitioner noted that CIS approved other petitions that it had filed on behalf of the beneficiary. The 
director's decision does not indicate whether he/she reviewed the prior approvals of the other nonirnmigrant 
petitions. If the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approvals would constitute material and 
gross error on the part of the director. The AAO is not required to approve appl~cations or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgornely, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (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. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1 139 (5th Cir. 
2001), cert, denied, 122 S.Ct. 5 1 (2001). 
In the request for evidence, the director requested that the petitioner submit a comprehensive description of 
the beneficiary's proposed duties, a list of U.S. employees including their names, titles, position descriptions, 
and a breakdown of the number of hours devoted to each task. The petitioner failed to submit this evidence in 
response. This evidence was critical, as it would have established whether the beneficiary would be 
employed by the U.S. entity in a primarily managerial or executive capacity. The purpose of the request for 
evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. 4 103.2(b)(8). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). 
In the response to the director's request for evidence, counsel implies that the beneficiary manages or 
supervises two managers and three sales and administrative personnel. However, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section lOl(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 supervised are 
professional. Section 101(a)(44)(A)(iv) of the Act. Because the beneficiary is primarily supervising a staff of 
non-professional employees, the beneficiary cannot be deemed to be primarily acting in a managerial 
capacity. 
EAC 03 196 53125 
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On review, the record as presently constituted is not persuasive in demonstrating that the U.S. entity has 
reached a level of complexity sufficient to support a managerial or executive position. The petitioner 
indicates that it plans to hire additional managers and 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 
Michelin Tire Corp., 17 l&N Dec. 248 (Reg. Comm. 1978). Furthermore, 8 C.F.R. 4 214.2(1)(3)(v)(C) allows 
the intended United States operation one year within the date of approval of the petition to support an 
executive or managerial position. There is no provision in CIS regulations that allows for an extension of this 
one-year period. If the business is not sufficiently operational after one year, the petitioner is ineligible by 
regulation for an extension. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. $ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.