dismissed L-1A Case: Furniture Retail

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U.S. Deparlment of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 07 015 52604 Office: VERMONT SERVICE CENTER Date: MAR 1 0 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1101 (a)(15)(L) 
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. 
Administrative Appeals Office 
EAC 07 01 5 52604 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its president as an L- 
1 A nonimmigrant intracompany transferee pursuant to section 1 O 1 (a)( 15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. Cj 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the Commonwealth of Virginia and is allegedly a retailer of furniture and accessories. The beneficiary was 
initially granted a one-year period of stay to open a new office in the United States, and the petitioner now 
seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not 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 for review. On appeal, counsel to the petitioner asserts that the director 
erred and that the beneficiary's duties are primarily those of an executive or manager. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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 three years preceding the beneficiary's application for admission into the United 
States. In addition, 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. 
The regulation at 8 C.F.R. Cj 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 hirnlher 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. 
EAC 07 01 5 52604 
Page 3 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence 
of wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1 101(a)(44)(A), defines the term "managerial capacity" as 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 101(a)(44)(B) of the Act, 8 U.S.C. 8 1101(a)(44)(B), defines the term "executive capacity" as an 
EAC 07 015 52604 
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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. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. A petitioner may not claim to be employed as a hybrid "executive/manager" and rely on partial 
sections of the two statutory definitions. If the petitioner is indeed representing the beneficiary as both an 
executive and a manager, it must establish that the beneficiary meets each of the four criteria set forth in the 
statutory definition for executive and the statutory definition for manager. 
The petitioner described the beneficiary's job duties in the Form 1-129 as follows: 
The Petitioner wishes to retain [the beneficiary] as President of the Company. Her duties will 
include coordinating daily business operations; developing the company's marketing strategy 
and implementing same; hiring administrative and sales personnel. [The beneficiary] will 
also be in charge of design and introduction of products adapted to the U.S. market. 
The petitioner also described the beneficiary's duties in a letter dated October 16,2006 as follows: 
[The beneficiary] continues to serve as President of our company and is responsible for 
managing the business operations. She is in charge of establishing annual sales goals, 
managing the purchase of inventory and setting marketing policy for the United States. 
The petitioner also indicted in the Form 1-129 that it currently has one employee - the beneficiary. 
On November 2, 2006, the director requested additional evidence. 
 The director requested, inter alia, 
additional evidence establishing that the beneficiary will be employed in a managerial or executive capacity; a 
comprehensive description of the beneficiary's proposed duties; and evidence addressing the staffing of the 
United States operation including the number of employees, duties performed, and personnel structure. 
In response, the petitioner submitted a letter dated November 16, 2006 which further describes the 
beneficiary's duties as "planning the Company's business objectives, establishing marketing strategy, 
negotiating with manufacturers for the purchase of inventory, setting pricing policy and hiring and firing 
employees." 
EAC 07 015 52604 
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The petitioner also indicates in the November 16, 2006 letter that it "opened its doors for business in June of 
2006" and that, while the beneficiary is the petitioner's sole employee, it has plans to hire additional staff in 
2007. 
On December 4, 2006, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive or manager. 
Upon review, the petitioner's assertions are not persuasive. 
Title 8 C.F.R. fj 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of 
the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business 
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant 
matter, the United States operation has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
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. fj 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. As explained above, a petitioner cannot claim that some of 
the duties of the position entail executive responsibilities, while other duties are managerial. A petitioner may 
not claim that a beneficiary will be employed as a hybrid "executive/manager~' and rely on partial sections of 
the two statutory definitions. 
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act 
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific 
description of the beneficiary's duties that fails to demonstrate what the beneficiary will do on a day-to-day 
basis. For example, the petitioner states that the beneficiary will "manage" the petitioner's business 
operations and the purchase of inventory; establish and implement a marketing strategy; plan business 
objectives and set goals; and "be in charge of design and introduction of products." However, the petitioner 
does not specifically define the marketing strategy, objectives, or goals being established and implemented. 
Furthermore, the petitioner does not explain what, exactly, the beneficiary will do in "managing" the business, 
the purchase of inventory, or the design and introduction of products, especially given that the beneficiary is 
the petitioner's sole employee. The fact that the petitioner has given the beneficiary a managerial title and has 
prepared a vague job description which includes inflated duties does not establish that the beneficiary will 
actually perform managerial duties. 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. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 
905 F.2d 41 (2d. Cir. 1990). 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). 
EAC 07 0 15 52604 
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Likewise, it appears that most of the duties listed by the petitioner appear to be non-qualifying administrative 
or operational tasks which do not rise to the level of being managerial or executive in nature. For example, 
the petitioner states that the beneficiary will coordinate "daily business operations," i.e., the operation of a 
single-employee retail store. The beneficiary is also described as "negotiating with manufacturers for the 
purchase of inventory." However, staffing a retail store and negotiating for the purchase of inventory 
constitute administrative or operational tasks. Furthermore, while the beneficiary is described as being "in 
charge of' the design and introduction of products and as "managing" certain aspects of the business, the 
petitioner does not employ a subordinate staff who will relieve the beneficiary of the need to perform the non- 
qualifying tasks inherent to these duties and to the management of the business in general. Therefore, it must 
be presumed that the beneficiary will perform these tasks. An employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). While the petitioner has asserted that it has plans to hire 
a subordinate staff in the future, a visa petition may not be approved based on speculation of future eligibility 
or after the petitioner or beneficiary becomes eligible under a n.ew 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 petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As indicated above, the beneficiary is the petitioner's sole employee. Therefore, she will not supervise and 
control the work of other employees. Furthermore, the record does not establish that the beneficiary will 
manage an essential function of the organization. The term "function manager" applies generally when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible 
for managing an "essential function" within the organization. See section 10 l(a)(44)(A)(ii) of the Act. The 
term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is 
managing an essential function, the petitioner must furnish a written job offer that clearly describes the duties 
to be performed in managing the essential function, i.e., identify the function with specificity, articulate the 
essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. See 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than perform 
the tasks related to the function. In this matter, the petitioner has not provided evidence that the beneficiary 
will manage an essential function. The petitioner's vague job description fails to document what proportion 
of the beneficiary's duties would be managerial functions, if any, and what proportion would be non- 
managerial. Also, as explained above, the record establishes that the beneficiary will be primarily engaged in 
performing the non-qualifying operational or administrative tasks related to the function rather than managing 
the function. Absent a clear and credible breakdown of the time spent by the beneficiary performing her 
duties, the AAO cannot determine what proportion of her duties would be managerial, nor can it deduce 
whether the beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc. v. US. 
Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity. 
EAC 07 0 15 52604 
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Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policiestt of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives,.the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will be acting primarily in an executive capacity. The job description provided 
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day 
basis. Moreover, as explained above, it appears that the beneficiary will primarily perform the tasks 
necessary to produce a product or to provide a service. Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in an executive capacity. 
A company's size alone, without taking 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 5 101(a)(44)(C) of the Act. 
However, in reviewing the relevance of the number of employees a petitioner has, federal courts have 
generally agreed that CIS "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 13 13, 13 16 (9" 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, 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. 5 
1 10 1 (a)(44). Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will 
primarily perform managerial or executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has failed to establish that it has been doing business for the 
previous year. 8 C.F.R. 5 214.2(1)(14)(ii)(B). 
A visa petition which involved the opening of a "new office" may be extended by submitting evidence that 
the petitioner "has been doing business as defined in paragraph (l)(l)(ii)(H) of this section for the previous 
year.' 8 C.F.R. 5 214.2(1)(14)(ii)(B). "Doing businesstt is defined in part as "the regular, systematic, and 
continuous provision of goods andlor services." 
In this matter, the initial "new officett petition was approved from October 23, 2005 until October 22, 2006 
(EAC 05 236 53095). However, as asserted by the petitioner, the petitioner did not begin "doing business" as 
defined in the regulations until June 2006, almost eight months after the approval of the initial "new office" 
petition. While the petitioner asserts that this delay in opening can be attributed to "finding a suitable retail 
location and negotiating the lease agreement," the regulations do not contain any exceptions from the 
EAC 07 01 5 52604 
Page 8 
requirement that the "new office" extension petitioner establish that it was engaged in the regular, systematic, 
and continuous provision of goods and/or services for the previous year. Furthermore, an essential task such 
as finding sufficient premises to house the new office should have been accomplished prior to the approval of 
the initial "new office" petition in 2005. 8 C.F.R. fj 214.2(1)(3)(v)(A). 
Accordingly, the petitioner has failed to establish that it has been doing business for the previous year, and the 
petition may not be approved for this additional reason. 8 C.F.R. fj 214.2(1)(14)(ii)(B). 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are 
qualifying organizations. 8 C.F.R. fj 214.2(1)(14)(1i)(A); 8 C.F.R. fj 214.2(1)(3)(i). 
The regulation at 8 C.F.R. fj 214.2(1)(14)(ii)(A) states that a petition to extend a "new office" petition filed on 
Form 1-129 shall be accompanied by: 
Evidence that the United States and the foreign entity are still qualifying organizations as 
defined in paragraph (l)(l)(ii)(G) of this section[.] ' 
Title 8 C.F.R. fj 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal 
entity which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, 
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing business." A 
"subsidiary" is defined in pertinent part as a corporation of which a parent "owns, directly or indirectly, half of the 
entity and controls the entity. " 
In this matter, the.petitioner, a corporation, asserts that it is 50% owned by the foreign employer. However, the 
record is devoid of evidence confirming this assertion. Furthermore, the petitioner did not disclose the 
ownership of the other 50% interest in the petitioner. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1 972)). 
Accordingly, the petitioner has failed to establish that it and the foreign employer are qualifying 
organizations, and the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed abroad 
in a managerial or executive capacity. 
The petitioner described the beneficiary's duties abroad in the Form 1-129 as follows: 
[The beneficiary] served as Sales and Delivery Manager for [the foreign employer] in Mexico. 
Her duties included managing and supervising all sales activities; developing the company's 
marketing strategy, as well as planning the design and introduction of new line products. In this 
capacity, [the beneficiary] directed the activities of all sales and delivery personnel. 
The petitioner also described the beneficiary's foreign job duties in a letter dated November 16, 2006 as being 
EAC 07 01 5 52604 
Page 9 
"responsible for, among other things, purchasing, sales and delivery coordination, marketing, and product 
penetration." However, the petitioner did not establish the number of people that were under the beneficiary's 
supervision, if any, or describe what, exactly, she did on a day-to-day basis in performing her duties. 
Upon review, the petitioner failed to establish that the beneficiary was employed abroad in a "managerial" or 
"executive" capacity. In support of its petition, the petitioner has provided a vague and nonspecific description 
of the beneficiary's duties that fails to demonstrate what the beneficiary did on a day-to-day basis. The fact 
that the petitioner gave the beneficiary a managerial title and prepared a vague job description which includes 
inflated duties does not establish that the beneficiary actually performed managerial duties. Once again, 
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. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. 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. 
Furthermore, as the petitioner established neither the number of people that were under the beneficiary's 
supervision abroad, if any, nor their duties or slull levels, it is impossible to determine whether the beneficiary 
was relieved of the need to perform the non-qualifying tasks inherent to her sales, marketing, and design duties or 
whether she supervised and controlled the work of other supervisory, managerial, or professional employees. 
In view of the above, it appears that the beneficiary performed the tasks necessary to produce a product or 
provide a service, was a first-line supervisor, or was a combination of both. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" 
employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. at 604. A managerial employee must have 
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the 
supervised employees are professionals. Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has failed to establish that the beneficiary was employed abroad in a managerial or 
executive capacity, and the petition may not be approved for this additional reason. 
The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the 
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS 
does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden of 
proof in a subsequent petition. See section 29 1 of the Act, 8 U.S.C. fj 136 1. 
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), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
EAC 07 015 52604 
Page 10 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 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. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.