dismissed L-1A Case: Furniture

US. DepPrtment ef Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
identifying date deleted to 
prevent clearly unwarranted 
favasjun of personal privacy 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FEE: SRC 03 044 52483 Office: TEXAS SERVICE CENTER Date: JUN 1 0 2005 
IN RE: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section IOl(a)(15)(L) of the 
Immigration and Nationality Act, 8 U. S.C. § 1 10 l(aK1 SXL) 
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. 
bert P. Wiemann, Director 
Administrative Appeals Office 
SRC 03 044 52483 
Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner, International Summit Services, Inc., endeavors to classify the beneficiary as a 
manager or executive pursuant to section lOl(a)(15)(L) of the Immigration and Nationality Act 
. The petitioner claims to be a wholly owned subsidiary of 
located in Colombia and is engaged in the business of 
custom made residential and corporate furniture. The 
initial petition was approved to allow the petitioner to open a new office. The beneficiary was 
subsequentIy granted a two-year extension of stay and the petitioner now seeks to extend his stay 
for an additional two years as the U.S. entity's general manager. The petitioner was incorporated 
in the State of Florida on June 22,1999 and claims to have three employees. 
On April 10, 2003, the director denied the petition because the petitioner failed to establish that 
the beneficiary has been and will be employed in a primarily executive or managerial capacity. 
On appeal, the petitioner's counsel refutes the director's findings and asserts that the director 
placed undue emphasis on the number of employees supervised by the beneficiary. 
To estabIish L-1 eligibility under section 101(a)(lS)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. Furthermore, 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. 
In relevant part, the regulations at 8 C.F.R. 5 214.2(1)(14)(3) state that an individual petition filed 
on Fonn I- 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. 
The issue in this proceeding is whether the beneficiary has been and will be primarily performing 
executive or managerial duties for the United States entity. Section 101(a)(44)(A) of the Act, 8 
U.S.C. $ 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
SRC 03 044 52483 
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(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 1 (a)(44)(B) of the Act, 8 U. S.C. 8 1 10 1 (a)(44)(B), provides: 
The tenn "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. 
On November 29, 2002, the petitioner filed the Form 1-129. On the Form 1-129, the petitioner 
described the beneficiary's proposed U.S. duties as "direct[ing] the management of the company, 
establish goals and policies, as well as negotiate contracts on the clients behalf." Additionally, in 
a supporting letter signed by the U.S. entity's chief financial officer, the petitioner described the 
beneficiary as "establishing the organizational goals and policies, selecting personnel, preparring] 
corporate reports and supervising of corporate operations." 
The petitioner also submitted an the beneficiary as vice 
president, a sales and and two unidentified sales 
representatives, a chief financial officer financial assistant. 
The petitioner indicated on Form 1-129 that it has three employees. The petitioner submitted 
SRC 03 044 52483 
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Forms 941, Employer's Quarterly Federal Tax Return for the last three quarters of 2001 and the 
first quarter of 2002. In each quarter, the petitioner reported one employee and paid wages of 
$3,600, or $1,200 per month. 
On January 20, 2003, the director requested additional evidence. Specifically, the director 
requested an explanation of how the beneficiary is acting in a managerial capacity; the need for 
two managers and one additional employee; the duties that each employee performs and the 
percentages of time spent on those duties; a copy of the petitioner's Form 941, Employer's 
Quarterly Federal Tax Return for the fourth quarter for 2002 with a list of the employees' names; 
and, an explanation as to why the cunent wages do not appear to be sufficient to cover the 
employees' salaries. 
In response, the petitioner's counsel submitted a March 13, 2003 letter explaining that the 
beneficiary's total estimated managerial and executive job duties "ranges between 45-60 hours a 
week." Counsel stated that the beneficiary "conduct[s] a11 hiring, firing and supervision of 
personnel andlor independent contractors. Many times a company will opt to cut payroll records 
by utilizing independent contractors and [the petitioner] has chosen to pursue this method." 
Counsel also claimed, "Most labor is sought through independent contractors as needed and 
funded through parent and subsidiary cashflow." Counsel explained that the company has "3 
professional decorators whom also act as sales representatives on behalf of the company" and 
recently hired a production manager to assist the beneficiary therefore "the company now 
employs two managerial officers with [the beneficiary] maintaining his supervisory capacity." 
Counsel submitted Exhibit A, a U.S. organizational chart indicating the beneficiary's position and 
subordinates and Exhibit B, a copy of the Form 941 and Form 941-C, supporting statement to 
correct information reporting two employees for the quarter ending December 31, 2002. The 
petitioner stated that the other employee is the beneficiary's personal assistant and indicated that 
she was initially not included on the Form 941 due to a clerical error. The petitioner submitted a 
Form W-2c indicating that this employee received total wages of $1,600 in 2002. The U.S. 
organizational chart indicated that the beneficiary oversees a production and a logistics manager 
who, in turn, oversee three sales representatives/decorators, a production supervisor, an import 
freight and delivery coordinator, and the trucking company for deliveries; however, the chart does 
not identify any employees by name or include the claimed personal assistant. Counsel also listed 
the beneficiary's U.S. duties and time allotted to each of the listed duties: 
1. Attend and head weekly staff meetings. 2.0 
2. Review corporate, financial, and operating reports for the Colombian 
corporation and U.S. subsidiary. 3.0 
3. Develop long and short term business plans in corporation with projected 
growth and demand for product 5.0 
4. Review and approve all matters involving import/export documentation, such 
as letters of credit, bills of lading, shipping insurance, and tariffs on imported 
and exported products. 8.0 
5. Prepare marketing and pricing strategies for both the Colombian & U.S. 
subsidiary to market service contracts and sale of products 2.0 
6. Prepare and submit all sales and import tax returns to Colombian government 
for shipments received 3.0 
SRC 03 044 52483 
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7. Create, coordinate, and supervise the production of promotional literature for 
clients & exhibitions both in Colombia & internationally. 3.0 
8. Negotiate large purchase orders with new and established clients to obtain 
the best terms 3.0 
9. Coordinate, authorize, and supervise all shipment products from both 
national and international. 2.5 
10. Attend monthly Chamber of Commerce business meeting for businesses 2.0 
11. Review and authorize all corporate expenditures submitted by 
bookkeeper/accountant, 3.0 
12. Review and authorize international sales orders submitted by U.S. subsidiary. 
1.5 
13. Review accounts receivables and inventory shipments. 1.0 
14. Direct & manage all aspects of company's marketing & product development 
activities, primarily for financial services industry. 5.0 
15. Review weekly corporate expense reports and bank reconciliation statements. 
1 .o 
16. Review and authorize payroll distribution. 1.5 
17. Prepare bank deposits and deposit hnds and checks into accounts. 1.0 
On April 8,2003, the director denied the petition because the petitioner failed to establish that the 
beneficiary has been and will be employed in a primarily executive or rnanagerial capacity. The 
director found that the beneficiary was primarily engaged in the day-to-day operations of the 
business. The director also found that there was insufficient evidence to establish that the U.S. 
company employed additional workers and that these employees were actually paid. The director 
noted that the petitioner failed to submit the requested list of employees7 names. 
On appeal, counsel states that the director "erred in [her] denial on the grounds of lack of 
employees in that this was a business decision of [the petitioner] and does not remove managerial 
capacity of the beneficiary, take note that [the petitioner] is a labor intense company, a part in 
which [the beneficiary] does not participate." Counsel cites an unpublished decision in support of 
his assertion that "a sole employee of the company may qualify as an executive, provided his or 
her purpose is to plan, organize, direct and control the organization's major functions through 
other people." In addition, counsel states that the beneficiary has "[rnlanaged the U.S. 
development including establishing goals, restructuring activities for optimum production, 
locating & employing outside companies to complete labor necessities, keeping corporate records 
& reports." Counsel also states, "In the minimum it is requested that petitioner be granted the 
opportunity to finalize business operations in the U.S." 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). On review, the petitioner 
has not established that the beneficiary has been and will be employed in a primarily executive or 
managerial capacity. The beneficiary's described duties are general and vague. For example, the 
petitioner described the beneficiary's duties as "direct[ing] the management of the company" and 
"[d]evelop[ing] long and short term business plans." However, it is unclear how the beneficiary 
will direct the management or develop long and short-term business plans. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
SRC 03 044 52483 
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proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). 
Further, the petitioner generally paraphrased the statutory definition of executive. See section 
101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(a)(44)(A). For instance, the petitioner depicted the 
beneficiary as "establishing the organizational goals and policies." However, 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. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), af'd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 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. 
Id. 
In addition, the petitioner described the beneficiary as being involved in "[p]repar[ing] marketing 
and pricing strategies for both the Colombian & U.S. subsidiary to market service contracts and 
sale of products." However, although the record indicated that there were two sales 
representatives, no names or a description of their claimed duties were provided in the record. 
Therefore, it is unclear as to who would actually perform the service. The petitioner submitted 
insufficient evidence that it employed workers to perform such duties; therefore, this leads the 
AAO to conclude that the beneficiary himself will be performing the listed sales and marketing 
tasks nor is there any evidence of wages paid to any employees or contractors other than the 
beneficiary and his personal assistant. 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 Scientology International, 19 I&N Dec. 593, 604 (Comrn. 
1988). 
Although the beneficiary is not required to supervise personnel, if it is claimed that the 
beneficiary's duties involve supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See $ 101(a)(44)(A)(ii) of 
the Act. In the response to the director's request for additional evidence, the petitioner claimed 
that the beneficiary oversees a production and a logistics manager who, in turn, oversee three 
sales representatives/decorators, a production supervisor, an import freight and delivery 
coordinator, and the trucking company for deliveries. The AAO notes that the petitioner initially 
submitted a substantially different organizational chart which depicted a Sales and Marketing 
Director, two sales representatives, a chief financial officer, and a financial assistant. However, 
there is insufficient evidence to establish that the petitioner actually employed any of these 
workers. The Forms 941, Employer's Quarterly Federal Tax Return, appear to indicate that at 
most only one employee, the beneficiary is compensated at a rate that would indicate full-time 
employment. It appears that the petitioner hired a single part-time employee during the last 
quarter of 2002, but there is no evidence of wages paid to any other payroll employees. 
Additionally, although the petitioner claimed that "[m]ost labor is sought through independent 
contractors as needed and funded through parent and subsidiary cashflow," the petitioner has 
neither presented evidence to document the existence of these employees nor identified the 
services these individuals provide. The petitioner also has not explained how the services of the 
contracted employees obviate the need for the beneficiary to primarily conduct the petitioner's 
SRC 03 044 52483 
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business. Again, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedingis. Matter of Soflci, 22 I&N Dec. at 
165. 
The AAO notes that the director requested that the petitioner to list the names of the subordinate 
employees and a description of their duties. The regulation states that the petitioner shall submit 
additional evidence as the director, in his or her discretion, may deem necessary. The purpose of 
the request for evidence is to elicit fbrther information that clarifies whether eligibility for the 
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. 
§§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). Without evidence of 
wages paid to employees or job descriptions for the claimed staff, the AAO must conclude that 
the beneficiary does not supervise any managerial, supervisory, or professional subordinate 
employees. 
Moreover, a critical analysis of the nature of the petitioner's business indicates that there are no 
subordinate employees to relieve the beneficiary from perfonning nonqualifymg duties. Rather, 
it appears from the record that the only individual operating the business is the beneficiary. In the 
March 13, 2003 letter, counsel claimed, "Most labor is sought through independent contractors" 
and "the company has 3 professional decorators whom also act as sales representatives on behalf 
of the company and recently hired a production manager to assist the beneficiary." However, in 
the absence of such evidence as pay stubs and payroll records and employee names and job 
descriptions, the petitioner has not established that it employs a subordinate staff that would 
relieve the beneficiary f?om performing nonqualifying duties. 
Counsel Mher refers to an unpublished decision in which the AAO determined that the 
beneficiary met the requirements of serving in a managerial and executive capacity for L-1 
~Iassification even though he was the sole employee. Counsel has hished no evidence to 
establish that the facts of the instant petition are analogous to those in the unpublished decision. 
While 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all CIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
After careful consideration of the evidence, the AAO concludes that the petitioner has failed to 
establish that the beneficiary has been and will be employed in a primarily executive or 
managerial capacity. For this 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. 5 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.