dismissed L-1A Case: Furniture Import/Export

U.S. Depsrtment of Itomeland Security 
20 Massachusells Avc.. N.W., Rm. A3042 
Washioglon. DC 20529 
U.S. Citizenship 
and Immigratmn 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101(a)(1 S)(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. 
Robert P. Wiemann, Director 
'Administrative Appeals Office 
SRC 03 159 52074 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to documentary evidence contained in the record, the petitioner was established in 1999 and is 
described as a busmess encraeed in the imnort and exoort of furniture and constructed closets. The ~etitioner 
one employee with a gross annual income under $79,000.00. It seeks to extend its authorization to employ 
the beneficiary temporarily in the United States as its president and general manager for two years, at an 
annual salary of $108,000.00. The director determined that the petitioner had not submitted sufficient 
evidence to demonstrate that the U.S. entity employed the beneficiary primarily in a managerial or executive 
capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary primarily 
performs executive duties at the U.S. entity. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 I 10 1 (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. kj 214.2(1)(1)(ii) states, in part: 
/ntracompany 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 1n 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. 4 214.2(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 (1)(1)(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 
SRC 03 159 52074 
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education, training, and employment qualifies hidher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that the 
beneficiary is employed by the U.S. entity primarily in an executive capacity. 
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- 
(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 
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)(#)@) of the Act, 8 U.S.C. 4 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; 
(i i) Establishes the goals and policies of the organization, component, or 
function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervis~on or direction from higher-level 
executives, the board of directors, or stockhoIders of the organization. 
SRC 03 159 52074 
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Section 101(a)(44)(C) of the Act, 8 U.S.C. 9 110 1 (a)(44)(C), provides: 
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 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. 
The petitioner initially described the beneficiary's job duties in the petition as: "in charge of marketing for 
wholesale line of closets and furniture. In charge of all hiring and firing decisions, set salaries, etc." 
In a letter of support, dated May 12,2003, the beneficiary described his job duties as: 
Since arriving in the US, [the beneficiary] has worked to establish [the U.S. entity] in the US 
market, and he has been in charge of marketing a line of closets and furniture imported from 
Mexico. He has been in charge of hiring workers to install and transport the closet line and 
salesmen to market and sell the imported furniture and closets. He also has been in charge of 
all hiring and fir~ng decision, setting salaries to employees, developing and implementing 
marketing plans, negotiating wholesale and distribution contracts and making all major 
decisions concerning the company. 
The petitioner submitted copies of the U.S, entity's IRS Form 1120, U.S. Corporate Income Tax Retum for 
2001, bank statements, corporate lease agreement and photographs of the leased premises, and other business 
documents. 
The director determined that insufficient evidence had been submitted to determine whether the beneficiary 
was eligible for an extended stay in an L1 intracompany transferee status and subsequently requested that the 
petitioner submit documents evidencing the beneficiary's eligibility. The director specifically requested: 
Evidence of the staffing level in the United States. Include copies of current tax returns 
(2002), which list all employees by name. 
Provide a list of all employee positions, duties and qualifications for each position. 
Describe the duties of the beneficiary for the past year. lndicated the percent of time he/she 
spent performing each duty. 
As evidence of staffing levels, the petitioner submitted copies of IRS Form W-2 for the year 2002 and an 
Application for Automatic Extension of Time to File Corporation Income Tax Retum. In response to the 
director's request to provide a list of all employees, counsel asserted that the U.S. entity hired its employees 
on an as needed basis. Counsel further asserted that the beneficiary was the sole employee in charge of the 
office and that the organization anticipated hiring new employees when the specific needs of the office 
required such. Counsel described the beneficiary's duties as: 
Sales 60% 
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Administration 3 0% 
Travel within the US 3% 
Developing New Projects 2% 
Meetings with principals in Mexico 5% 
The petitioner submitted copies of the U.S. entity's IRS Form 940-EZ, Employer's Annual Federal 
Unemployment Tax Return; IRS Form W-2 for 2002, IRS Form 7004, Application for Automatic Extension 
of Time to File Corporation Income Tax Return; and evidence of business conducted in the United States. 
The director subsequently denied the petition determining that the petitioner had failed to submit sufficient 
evidence to demonstrate that the beneficiary performs primarily in a managerial capacity. The director noted 
that the beneficiary was the sole employee of the U.S. entity; that the entity hired employees on an as needed 
basis; and that the beneficiary spent 60 percent of his time performing sales duties and 30 percent of his time 
performing administrative duties. The director determined that the tasks performed by the beneficiary were 
not ones that required a manager to perform and that there was no evidence to show that the entity employed 
subordinate staff sufficient to support the need for a manager. 
On appeal, counsel disagrees with the director's decision and asserts that the beneficiary is not requesting 
consideration for an extension of stay as a manager but as an executive. Counsel also asserts that the 
petitioner has submitted sufficient evidence to demonstrate that the beneficiary primarily performs executive 
duties for the U.S. entity. Counsel further lists the statutory elements for executive capacity and attempts to 
explain how the beneficiary meets each of the criteria. On appeal, the petitioner submits as evidence: an 
Application for Employer Identification Number, an organizational plan and structural outline, reference 
letters, a company price listing, and other business letters. The petitioner also submitted copies of the foreign 
company's business invoices. 
As evidence on appeal, the petitioner submitted a copy of the U.S. entity's Application for Employer 
Identification Number; an organizational plan and structural outline; a reference letter dated July 1,2003; a 
company price listing dated June 6, 2003; a corporate letter of acknowledgement dated May 18, 2003; a letter 
recognizing an impending distributor's ab~eement dated July 8, 2003; and other business letters. The 
petitioner also submitted copies of the foreign company's business invoices. It is noted that the petition in 
this matter was filed on May 16, 2003. 
In evaluating whether the beneficiary is employed in a primarily managerial or executive capacity, the AAO 
will look first to the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 4 214.2(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. Although 
counsel claims that the beneficiary performs primarily in an executive capacity, the evidence of record 
demonstrates that he primarily performs sales and administrative duties. Further, the definitions of executive 
and managerial capacity 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 prove that the 
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her 
t~me on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th 
Cir. July 30, 1991). 
Counsel contends that the beneficiary is employed by the U.S. entity in an executive capacity in that he 
directs the management of the organization; establishes goals and policies; exercises wide latitude in 
SRC 03 159 52074 
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discretionary decision-making; and receives only general supervision from senior executives. However, a 
review of the beneficiary's job descriptions fails to demonstrate that the beneficiary primarily performs in an 
executive capacity or that the organization is able to support such a position. Further, there is no evidence to 
show that the U.S. entity, as an established business, employs anyone other than the beneficiary to perform 
non-qualifying duties. The evidence submitted on appeal demonstrates that the beneficiary's duties and 
responsibilities primarily consist of sales, marketing, and distribution of building products and accessories. 
Consequently, there is insufficient evidence to show that the beneficiary performs the high-level 
responsibilities as defined, or that he primarily performs those duties rather than spendrng the majority of his 
time performing day-to-day functions of the organization. 
The petitioner has provided no comprehensive description of the beneficiary's duties that would demonstrate 
that he directs the management of the organization, establishes goals and policies, exercises a wide latitude in 
discretionary decision-making, and receives only general supervision or direction from higher level 
individuals. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Crafi ofCal$r~rviu, 14 J&N Dec. 190 
(Reg. Comm. 1972). Paraphrasing the regulations as a substitute for a comprehensive description of the 
benefjciary's job duties is insufficient to demonstrate the beneficiary is acting in an executive or managerial 
capacity. Frdin Bros. Co., Ltd. V. Sava, 724 F.Supp. 1103, 1 108 (E.D.N.Y. 19891, ufd, 905 F.2d 41 (2d Cir. 
1990); Avyr Associates, Inc. v. Meissner, 1977 WL 188942 at *5 (S.D.N.Y.). There has been no evidence 
presented to demonstrate what goals and policies have been and will be established by the beneficiary in his 
capacity. For example, the petitioner described the beneficiary's duties in vague and general terms such as 
"developing and implementing marketing plans" and "making all major decisions concerning the company." 
Further. in response to the director's request for evidence, it is stated that the beneficiary spends 60 percent of 
his time performing sales duties and 30 percent of his time performing administrative duties; hence, 90 
percent of the beneficiary's time is spent performing nonqualifying, non-executive duties. 
The record does not demonstrate that the U.S, entity contains the organizational complexity to support an 
executive position. While company size cannot be the sole basis for denying a petition, that element can 
nevertheless be considered, particularly in light of other pertinent factors such as the nature of the petitioner's 
business. Together, these facts can be used as indicators to help determine whether a beneficiary can remain 
primarily focused on managerial or executive duties or whether that person is needed, in large part, to assist in 
the company's daily operations. In the instant matter, the latter more accurately describes the beneficiary's 
role. The evidence of record demonstrates that the U.S. entity currently employs only the beneficiary and 
hires new employees on an as needed basis. The record further demonstrates that the beneficiary spends the 
majority of his time performing sales and administrative duties. The petitioner stated that the beneficiary was 
responsible for hiring workers to market, sell, transport, and install the company's furniture and clothes 
closets. However, the current record demonstrates that the company has been conducting business in the past 
year and that the beneficiary is the sole employee of the U.S. entity. 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 offlu, 19 I&N Dec. 582, 591 (BIA 1988). If CIS 
fails to believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 
U.S.C. 5 1 154(b); see also Anrtekhai v. I.N.S., 876 F.2d 12 18, 1220 (5"' Cir. 1989); Lu-Ann Bakery Shop, Inc. 
v. Nelson, 705 F. Supp. 7. 10 (D.D.C.1988); Sy,stronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
There are no employees currently available to perform the functions of the organization or to relieve the 
beneficiary from performing non-executive duties such as marketing, selling, delivering, and installing the 
petitioner's product. 
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Neither is the record, as presently constituted. persuasive in demonstrating that the beneficiary is employed by 
the U.S. entity in an executive capacity. There has been insufficient evidence presented to establish that the 
beneficiary directs the management of the organization, establishes goals and policies, exercises wide latitude 
in discretionary decision-making, and receives only general supervision from higher-level executives. The 
petitioner bas not shown that the beneficiary fimctions at a senior level within an organizational hierarchy other 
than in position title. There has been insufficient evidence submitted to establish that the beneficiary has 
been and will be employed by the U.S. entity in a primarily executive capacity. 
Beyond the decision of the director, there is insufficient evidence to demonstrate that the petitioner will be 
able to remunerate the beneficiary for his services. In the petition, the petitioner stated that the beneficiary's 
salary would be $108,00.00 annually. The petitioner submitted a copy of the company's IRS Form 1120, 
U.S. Corporate Income Tax Return for the year 2001, which indicated that the company gross receipts from 
sales was only $101,255.00 and its gross profit was only $22,000.00. The tax return also demonstrates that no 
money was paid out in compensation of officers or in salaries and wages for that year. For this additional 
reason, the petition may not be approved. 
in visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ f 361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.