dismissed L-1A Case: Food Products

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 02 207 53790 Office: VERMONT SERVICE CENTER Date: UN 0 5 m5 - 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration - 
and Nationality Act, 8 U.S.C. 8 1 101 (a)(15)(L) 
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 inquirq. must be made to that office. 
Administrative Appeals Office 
EAC 02 207 53790 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Vermont Service 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 incorporated in 1999 and - 
claims to be in the busin ing food products. The petitioner claims that the U.S. 
entity is a subsidiary of located in Ahmedabad, India. The petitioner seeks to 
extend its authorization to employ the beneficiary temporarily in the United States as its president for two 
additional years, at an annual salary of $45,000.00. The director determined that the petitioner had not 
submitted sufficient evidence to demonstrate that the beneficiary had been or would be employed in a 
primarily managerial or executive capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties have 
been and will be managerial or executive in nature. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 1 lOl(a)(lS)(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, § 214.2(1)(l)(ii) states, in part: 
Iniracompany 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 fm 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 h~s or her 
services to a branch of the same employer or a parent, aSliate, or subsidiary thereof in a capacity 
that is managerial, executive or involves specialized knowledge. 
The regulation at 8 C.F.R. 6 214.2(1)(3) states tht an individual petition filed on Form 1-129 shIl be 
accompanied by: 
(i) Evidence that the petitioner and the organization wbich employed or will ernploy 
the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this 
section. 
(ii) Evidence that the alien will be epployed 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 with the three years preceding the filing of 
the petition. 
EAC 02 207 53790 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or invoIved specialized knowledge and that the alien's 
prior education, training, and employment qualifies hider 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. 9 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
6) Manages the organization, or a department, subdivision, function, or 
component of the organization; 
(i i) 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 empIoyee 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 Ievel 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. 9 1 10 l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee prirnarily- 
(0 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-mahng; and 
(iv) Receives only general supervision or direction fiom higher level 
executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1101 (a)(U)(C), provides: 
EAC 02 207 53790 
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 hction 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 managerial 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. 
In a letter of support, dated May 23, 2002, the petitioner described the beneficiary's duties as: 
As president of the U.S. subsidiary, [the beneficiary] will direct and manage the operations 
and activities of the company. He will be responsible for executive and managerial duties, 
directing all operations of [the U.S. entity] and will be invested with autonomous 
discretionary decision making authority. 
[The beneficiary] is handling . . . all personnel issues such as hiring and firing of employees, 
compensation Ievels, and related issues. He will continue to meet our goals of hiring staff to 
accommodate our growth. 
in addition to supervising and directing in-house, [the beneficiary] will be responsible for 
retaining and overseeing the services of outsourced professionals such as accountants, 
attorneys, and bankers. 
The president is responsible for forgoing and maintaining contacts with clients and the 
business community in order to expand sales opportunities. 
In response to the director's request for additional evidence on this subject, the petitioner described the 
beneficiary's duties in the United States as follows: 
As president of the [U.S. entity], (the beneficiary] is involved in the development of new 
projects and expanding the business of [the foreign entity] in hdia. . . . His responsibilities 
and functions include: receiving a regular report from the vice president; acting as a main 
liaison between [the] U.S. company and foreign company and providing them with the latest 
information about business development of the U.S. company; overseeing the vice president's 
work in the areas of trading and marketing; concentrating on the research and development 
for new projects and finding out new products for export to hdia; attending trade conferences 
and exhibitions; liaison with executives of battery parts industries as well as auxiliary 
industries for new products; and creating new relations with other buyers and manufacturers 
around the world. 
As president of the U.S. subsidiary, [the beneficiary] will direct and manage the operations 
and activities of the company. He will be responsible for executive and managerial duties, 
directing all operations of [the U.S. entity] and will be invested with autonomous 
discretionary decision making authority. [The beneficiary] will be responsible for all aspects 
of the business including: financial administration; planning and implementing marketing 
strategies (20%); developing long-term business plans for future expansion (30%); 
EAC 02 207 53790 
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negotiating contracts with suppliers and buyers (20%); targeting new clients and interfacing 
with existing clients to ensure client satisfaction (20%); and coordinating activities with 
future employees such as a sales manager and office manager to ensure proper purchasing, 
sales and maintenance of inventory and quality control as well as adherence to office 
management procedures and policies (10%). In administering these key functions, the 
president will confer with a wide array of accounting and marketing professionals, as well as 
industry leaders. 
chart that listed the beneficiary as 
as the manager-s sales person; 
petitioner also submitted a list of 
as the vice 
manager; as a sales person; s a sales person; and s a sales 
person. 
The petitioner described the employees' duties and responsibilities as: 
PRESIOENT - DUITES AND RESPONSIBLLITIES 
To receive a regular report from vice president. 
To receive a regular report from [the foreign entity] 
To assist Vasant Patel managing partner of the [foreign entity] by giving latest information 
and development. 
To assist vice president by giving latest reforms in trading and in marketing. 
To concentrate on the research and development for new project[s] and find out new 
products for export to India. 
To attend the conferences and exhibitions. 
To do liaison with battery parts industries as well as auxiliary industries for new products. 
To create new relations with other buyers and manufacturers around the world. 
VICE PRESIDENT - DUTIES AND RESPONSIBILITIES 
Report to the president by giving information about the business. 
Follow all the instructions given by the president. 
Issue paycheck to the employees. 
Hirindfiring employees. 
To take care of banhng and finance 
To assist manager for sales and purchase. 
To find new business opportunities. 
To attend business meetings and attend visitors in absence of president. 
To comply with all direct and indirect taxes of government. 
MANAGER - DUTIES AND RESPONSIBILITIES 
Follow all the instructions given by the vice president. 
To take the report of market survey and development. 
Find new products for sale. 
EAC 02 207 53790 
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To resolve the problems. 
To deposit money in the bank. 
To prepare accounts regularly and have it audited. 
To review and prepare the monthly progress report. 
Assist other sales persons by guiding them in their daily activity. 
Look after all other employees and maintenance. 
To check the mail, reply [to] the same and inform the vice president if its necessary. 
SALES MANAGER I - DUTIES AND RESPONSIBILITIES 
To prepare the order for purchase and submit to the manager. 
To take counter during the business hours. 
Clearing the paper work and help other staff members 
SALES MANAGER I1 - DUTIES AND RESPONSIBILITIES 
To take the counter. 
Improving the business place by making changes. 
Introduce the customers with new products. 
To check the quality of products. 
Handle the regular paperwork. 
SALES PERSON - DUTIES AND ElESPONSIBILITIES 
To prepare the order for purchase and submit to the manager 
To take counter during business hours 
Cleaning the paper work and help other staff members. 
The petitioner submitted copies of its IRS Forms W-3 and W-2 for 2001 and a copy of its State Income Tax 
Return for 200 1. 
The director determined that the petitioner's description of job duties was insufficient to show that the 
beneficiary's position had been and would be managerial or executive in nature. The director noted that 
based upon salary figures, it appeared that the other employees were employed only on a part-time basis. The 
director concluded that the beneficiary would be engaged in providing sales services rather than directing the 
organization. The director stated that there was insufficient evidence to show that the U.S. entity was able to 
support a managerial or executive position. The director further stated that the petitioner had failed to show 
that the beneficiary would be involved in the supervision and control of the work of other supervisory, 
professional, or managerial employees who would relieve him ?tom performing the day-today services of the 
organization. 
On appeal, counsel argues that the director's decision was wrongfully based upon the notion that the U.S. 
entity did not earn enough to justify the hiring of a multinational manager. Counsel also argues that where the 
number of employees supervised is used to determine visa eligibility, Citizenship and Immigration Services 
(CIS) should also take into consideration the nature of the business and the needs of the organization. 
Counsel reiterates the U.S. entity's employees' position descriptions. 
began hiring employees in October of 2001, and that one of the emplo 
months before talung a leave of absence from the company. Counsel 
EAC 02 207 53790 
Page 7 
addition to operating a convenience store, also provides consultancy services for marketing purposes. Counsel 
contends that the current petition is for an extension of an earlier approved petition, and barring a finding of 
"gross error," should be approved. As evidence on appeal, the petitioner resubmits copies of its business 
plan, company organization chart, employee duty descriptions, and IRS Forms W-2 and W-3 for 2001. The 
petitioner also submits company IRS Fonn 941 for the quarters ending March 31, 2002, June 30, 2002, and 
September 30,2002, and IRS computer printouts for the U.S. entity dated August 13,2002. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been 
employed in a managerial or executive capacity. 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 petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are manageriaI. 
Counsel correctly observes that a company's size alone, without tahng into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See section l01(a)(44)(C), 8 U.S.C. 4 1 101(a)(44)(C). However, it is appropriate for CIS 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 size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
In evaluating the petitioner's eligibility, the AAO will consider on appeal the size of the enterprise, the 
number of staff, as well as the reasonable needs of the enterprise. As required by section lOl(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, 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 two and one-half-year-old import and export company that claimed 
to have a gross annual income of $525,490.00. The firm employed the beneficiary as president, a vice 
president, a manager, one sales manager, one sales person, and one sales manager who was on leave of 
absence. The AAO notes that all but one employee had managerial or executive titles. The petitioner did not 
submit evidence that it employed any subordinate staff members who would perform the actual day-to-day, 
non-managerial operations of the company on a full-time basis. Based on the pet~tioner's representations, it 
does not appear that the reasonable needs of the petitioning company might pIausibly be met by the services 
of four managerial personnel and one subordinate worker. Furthermore, the nature of the entity necessitates 
more than one non-professional worker to assure its viability. Notwithstanding, the reasonable needs of the 
petitioner serves only as a factor in evaluating the Iack 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 (8) or 
the Act. 
The AAO now turns to counsel's assertion that ths petition must be approved because it pertains to the extension 
of the beneficiary's L-1 status. Counsel contends, barring a showing of "gross error," the instant petition should 
EAC 02 207 53790 
Page 8 
be approved where it is an extension of an earlier approved petition. Counsel implies that the director's favorable 
review of the initial L-1 petition is sufficient, by itself, to approve the petition before CIS at the present time. 
?'he AAO does not concur with counsel on this point. The record of proceeding before the AAO at the present 
bme does not contain any of the supporting evidence that was submitted to the Vermont Service Center with the 
initial request for the L-1 petition approval. In the absence of all of the corroborating evidence contained in that 
record of proceeding, the AAO cannot determine whether the L-1A nonirnrnigrant petition initially filed on the 
beneficiary's behalf for the same position as the proffered position was approved in error. 
Nevertheless, it is important to emphasize that each petition filing is a separate proceeding with a separate record. 
See 8 C.F.R. 9 103.8(d). In making a determination of statutory eligibility, CIS is limited to the information 
contained in the record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). Although the AAO may attempt to 
hypothesize as to whether the prior approval was granted in error, no such determination may be made without 
review of the original record in its entirety. If, however, the prior petition was approved based on evidence that 
was substantially similar to the evidence contained in the record of proceeding that is now before the AAO, the 
approval of the initial petition would have been gross error. CIS is not required to approve petitions where 
eligbility 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 (Comrn. 1988). 
On appeal, counsel refers to an unpublished decision in which the AAO determined that a beneficiary was 
serving in an executive capacity for L-1 classification even though he was the sole employee. Counsel has 
furnished no evidence to establish that the facts of the instant petition are analogous to those in the 
unpublished decision. While 8 C.F.R. 9 103.3(c) provides that AAO precedent decisions are binding on all 
CIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
Counsel Wher cites Mars Jewelers, Inc. v. INS, 702 2, Supp. 1570 (N.D.GA. 1988), as support for the 
petitioner's position. Counsel has not established that the facts in the Mars Jewelers case are analogous to the 
facts in the instant case or that the statutory and regulatory provisions used are applicable. In the Mars Jewelers, 
Inc. decision, the court ruled that the size of an organization was not to be considered as a sole factor in 
determining the beneficiary's eligibility. In the current petition, the company size was not the only factor 
considered in determining the beneficiary's ineligibility as an intracompany transferee. Accordingly, counsel's 
reference to Mars Jewelers is not persuasive. 
Counsel also cites to other unpublished decisions to bolster his arguments regarding the beneficiary's status as a 
manager or executive. As noted above, unpublished decisions have no precedential effect and are not binding. 
Furthermore, counsel has not established that the facts of the unpublished cases are parallel to those of the current 
case. Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BL4 1980). 
Although counsel states on appeal that the beneficiary is responsible for retaining and overseeing the services 
of outsourced professionals such as an accountant, attorney, and banker, the petitioner has neither presented 
evidence to document the existence of these employees nor identified the services these individuals provide. 
Additionally, the petitioner has not explained how the services of the contracted employees obviate the need 
for the beneficiary to primarily conduct the petitioner's business. Again, without documentary evidence to 
support its statements, the petitioner does not meet its burden of proof in these proceedings. Matter of 
Treasure CraB of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
EAC 02 207 53790 
Page 9 
The record contains inconsistencies regarding the U.S. entity's employees' job titles and duty descriptions. 
In a letter dated May 23, 2002, the petitioner asserted that it employed a president, vice president, marketing 
officer, and two staff members. In contrast, the company's organization chart lists a president, vice 
president, manager, two sales managers, and a sales person as employees. The petitioner supplied an 
employee list that lists a president, vice president, manager, and three sales persons as employees of the 
company. In response to the director's request for additional evidence, the petitioner submitted position 
descriptions that differ from those initially submitted in support of the petition. In addition, the duties of the 
president, vice president and manager overlap, as do the duties of the sales manager and sales person. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The record as presently constituted is not persuasive in demonstrating that the beneficiary has been or will be 
employed in a primarily managerial or executive capacity. The petitioner indicates that it plans to expand its 
business by hiring 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 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, 8 C.F.R. 9 214.2(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. The petitioner has not reached the point that it can employ the beneficiary in a primarily 
managerial or executive position. 
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. 9 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.