dismissed L-1A Case: Furniture Sales

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W , Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 02 145 5 1486 Office: VERMONT SERVICE CENTER Date: AUG 3 0 2003 
IN RE: 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
I +--?! Robert P. Wiemann, Direct r 
a 
Administrative Appeals 0hce 
EAC 02 145 5 1486 
Page 2 
DISCUSSION: The nonirnrnigrant 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 2000 and 
claims to be in and selling furniture. The petitioner states that the 1T.S. entity 
located in Baalbeck, Lebanon. It seeks to extend its authorization to 
States as its director of sales for a period of one year, at a 
yearly salary of $45,000.00. The director determined that the petitioner failed to establish that the beneficiary 
has been or will be employed primarily in an executive or managerial capacity. The beneficiary wa.s initially 
granted a one-year period of stay in the United States and the petitioner now seeks to extend the beneficiary's 
stay for another one year. 
On appeal, counsel disagrees with the director's determination and asserts that the evidence establishes that 
the beneficiary's duties have been and will continue to be employed primarily executive or managerial 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. 3 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 3 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 3 214.2(1)(3) further 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 (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. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qu organization within the three years preceding the filing of 
the petition. 
EAC 02 145 5 1486 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hirnfher 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 regulation at 8 C.F.R. 8 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) 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 (I)( l)(ii)(H); 
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 issue to be addressed in this proceeding is whether the petitioner has submitted sufficient evidence to 
establish that the beneficiary has been and will be employed in a primarily executive or managerial capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1101(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 
EAC 02 145 5 1486 
Page 4 
(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. 3 1101(a)(#)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee prirnarily- 
(i> Directs the management of the organization or a major component or 
function of the organization; 
(ii) Establishes the goals and policies of the organization, component, or 
function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Section lOl(a)(#)(C) of the Act, 8 U.S.C. 3 1101 (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. 
In a letter dated May 5, 2002, the petitioner described the beneficiary's duties as follows: 
As director of sales for MB Furniture, [the beneficiary] is responsible for establishing and 
carrying out company policy in the area of sales. She will recruit and train a staff of sales 
personnel. She also creates sales and promotional campaigns and oversees and coordinates 
all major accounts. [The beneficiary] is responsible for contacting and negotiating with 
purchasing managers of furniture retailers and wholesalers. She seeks to obtain distribution 
agreements with major national and regional department stores and furniture retailers. She 
will evaluate the performances of our U.S. staff and has the authority to hire, fire, and 
promote personnel, assigning tasks and projects as needed. [The beneficiary] represents MB 
Furniture at furniture shows and industry conventions and with senior personnel of customers 
and potential customers. In addition, she assumes the duties of the president of the company 
in his absence. 
EAC 02 145 5 1486 
Page 5 
In the request for evidence, dated May 13, 2002, the director requested that the petitioner submit a 
comprehensive description of the beneficiary's duties; a list of employees including their names and position 
titles; a U.S. entity organizational chart; copies of company payroll records; and income tax records 
demonstrating whom the U.S. entity employs. 
In response to the director's request for evidence, the petitioner submitted a copy of the beneficiary's pay stub 
covering the pay period July 1 to July 31, 2002. The petitioner also submitted a copy of a letter from the 
foreign entity, dated February 20, 2001, which stated that the beneficiary had been employed by the 
organization as a sales manager since 1994. 
The director determined that the petitioner's descriptions of the beneficiary's duties identified general 
manager functions and paraphrased INS regulations. The director noted that the beneficiary's job descriptions 
were vague and did not specifically identify her past or proposed duties. The director concluded by stating 
that based upon the U.S. entity's staffing arrangement, it did not appear that the beneficiary would be 
responsible for performing professional duties. 
On appeal, counsel argues that the petitioner has demonstrated that the beneficiary serves in a senior 
managerial capacity, in that she manages the sales function within the U.S. entity. Counsel also argues that 
the beneficiary exercises discretion over the petitioner's day-to-day operations. Counsel further argues that 
the size of the U.S. entity is immaterial to the beneficiary's managerial functions. 
On review, 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. 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 managerial. 
The petitioner has not provided a comprehensive description of the beneficiary's purported job duties. The 
beneficiary's position description is too vague to establish that the preponderance of her duties will be 
managerial or executive in nature. The following duties are without any context in which to reach a 
determination as to whether they would be qualifying as managerial or executive: responsible for establishing 
and carrying out company policy in the area of sales, creates sales and promotional campaigns, and 
coordinates major accounts. In addition, there is insufficient detail regarding the actual duties of the 
assignment to overcome the objections of the director. Further, there is no indication from the record how 
much of the beneficiary's time will be spent performing each task. 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), afd, 905 F.2d 4 1 (2d. Cir. 1990). 
The petitioner has not demonstrated that the beneficiary will be primarily supervising a subordinate staff of 
professional, managerial, or supervisory personnel who can relieve her from performing non-qualifying 
duties. The evidence fails to establish that the U.S. entity employs anyone other than the beneficiary. The 
petitioner failed to comply with the director's request for evidence of subordinate job titles and duty 
descriptions. The petitioner indicates that the beneficiary will recruit and train a staff of sales personnel. 
EAC 02 145 5 1486 
Page 6 
However, there has been no independent documentary evidence submitted to substantiate this claim. 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. Cornrn. 1972). 
Although counsel contends that the beneficiary manages the sales function of the U.S. entity, the record 
demonstrates that she performs the duties related to the 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 
101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is 
managing an essential function, the petitioner must 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. In addition, the petitioner must provide a comprehensive and detailed 
description of the beneficiary's daily duties demonstrating that the beneficiary manages the function rather 
than performs the duties relating to the function. Although the petitioner stated that the beneficiary has been 
or will be primarily responsible for managing the sales division of the organization, the record reflects that the 
beneficiary has been performing and will continue to perform the duties necessary to establish the business 
and sell its products. 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 (Cornm. 1988). 
The petitioner failed to comply with the director's request for evidence in that it did not submit a 
comprehensive description of the beneficiary's job duties, a list of all employees employed by the U.S. entity, 
an organizational chart depicting the U.S. entity's hierarchy, a list of all subordinate titles and duty 
descriptions, company payroll records, or IRS Form W-2 and W-3 representing the U.S. entity's current 
employees. 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 further 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. Q§ 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. 5 103.2(b)(14). Based upon evidence submitted 
on the record, it appears that the beneficiary will be performing the services of the U.S. entity rather than 
serving as a manager or an executive. For this reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner has not established that it is eligible for an extension of the 
initial one-year "new office" validity period. As previously noted, the regulation at 8 C.F.R. 5 214.2(1)(14)(ii) 
provides strict evidentiary requirements that the petitioner must satisfy prior to the approval of this extension 
petition. The petitioner has not satisfied all of the enumerated evidentiary requirements. The petitioner has 
not submitted evidence to demonstrate that a qualifying relationship exists between the U.S. and foreign 
entities as defined in paragraph (l)(l)(ii)(G). Although specifically requested by the director, the petitioner 
failed to submit copies of the US. entity's Articles of Incorporation, stock certificates, stock ledger, and 
Notice of Transaction Pursuant to Corporation Code Section 25102(f). The petitioner also failed to submit 
evidence to show that the foreign entity had paid for stock issued by the U.S. entity. In addition, there has 
been insufficient evidence submitted to establish that the foreign entity has been and will continue doing 
business during the beneficiary's stay in the United States. In response to the director's request for additional 
evidence on the subject, the petitioner submitted photographs of the exterior and interior of a building 
containing furniture. The petitioner also submitted copies of untranslated invoices. Because the petitioner 
failed to submit certified translations of the documents, the AAO cannot determine whether the evidence 
supports the petitioner's claims. See 8 C.F.R. 3 103.2(b)(3). The evidence submitted is insufficient to 
EAC 02 145 5 1486 
Page 7 
establish that the foreign entity is engaged in the regular, systematic, and continuous provision of goods 
andlor services pursuant to 8 C.F.R. 5 214.2(1)(l)(ii). For these additional reasons, the petition may not be 
approved. 
Beyond the decision of the director, there has been no evidence submitted to demonstrate that the lJ.S. entity 
will be in a position to remunerate the beneficiary for her services pursuant to 8 C.F.R. 5 214.2(1)( 14)(ii)(E). 
Tax records submitted by the petitioner reflect that in 2001, the U.S. entity did not realize any gross receipts 
or sales. The IRS Form 1120, U.S. Corporation Income Tax Return for the year 2001 shows that there was no 
compensation of officers and no salaries or wages paid for that year. A copy of the petitioner's bank 
statement for the period of June 7 through July 5, 2002, reveals a combined ending bank balance of $61.55. 
In addition, the petitioner failed to comply with the director's request for copies of the company's IRS W-2 
and W-3 forms. Evidence in the record demonstrates that the beneficiary's salary is $45,000 per year. Based 
upon the evidence submitted it does not appear that the petitioner is in a position to remunerate the 
beneficiary for her services or that the reasonable needs of the petitioning company would plausibly be met by 
the services of the beneficiary as a manager or executive. For this additional reason, the petitioner may not be 
approved. 
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 Entelprisas, Znc. v. United States, 229 F.SU~~.~"~ 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9" 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). 
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. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.