dismissed L-1A Case: Garment Trading

laentifying data dele- 
prevent dearly unwarmh 
invasion of wrsond pd- 
PUBLIC COPY 
U.S. Department of Homeland Securie 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC-04-177-52280 Office: CALIFORNIA SERVICE CENTER Date: SEp 0 5 2006 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101 (a)(15)(L) 
IN 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. 
4. He 
Robert P. Wiemann, C ief 
Administrative Appeals Office 
WAC-04-177-52280 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its chief executive officer 
as an L-1A nonirnrnigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of California and is engaged in garment trading and investment activities. The petitioner claims 
that it is an affiliate of 
 located in Ho Chi Minh City, Vietnam. The beneficiary 
was granted two 
 new office in the United States, and the petitioner now 
seeks to extend the beneficiary's stay for an additional two years. 
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 director reasoned that the 
petitioner had not sufficiently described its business activities, business structure and activities of its 
employees. 
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 for the petitioner asserts that the director 
failed to regard evidence and did not issue a Request for Additional Evidence (RFE). In support of this 
assertion, the petitioner submits additional evidence. 
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. 9 214.2(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 
WAC-04-1 77-52280 
Page 3 
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 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. 9 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, 
hnctions 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. $ 1101(a)(44)(B), defines the term "executive capacity" as 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. 
In the initial petition, the petitioner described the beneficiary's job duties as follows: 
WAC-04-1 77-52280 
Page 4 
Responsible for general operating activities and finance of the company, increasing capital 
efficiently, and investing in real estate markets. Strategic and logistic planning of the 
company's goals and objectives both financially and operationally. Budgeting and contract 
negotiations and support system, procurement import and export merchandise. Recruiting 
and training new staff for future growth. 
Full responsibility for company development strategy using dynamic leadership and 
innovative strategic planning in parallel with service and financial support for US 
business growth opportunities 
Responsibility for developing, implementing, and overseeing the company's creative 
business plan, which requires awareness of contemporary designs and successful 
integration of up-to-date international fashion trends 
Determine and continually review company goals and objectives, focusing on 
product lines that reflect the "sign of the times" while maintaining policy flexibility 
to adapt to the rapidly changing business of fashion 
 20% time 
Manage human, material, and financial resources of the company to achieve the 
optimum goals and objectives laid out and mandated by the Board of Directors 
15% time 
Respond to market demandsltrends and the strategies of competitors by formulating 
and implementing an effective PR strategy that includes campaignsladvertising via 
traditional public media as well as web sites 
 15% time 
Conduct and finalize all negotiations with wholesalers, material providers, etc., and 
execute all binding contracts on behalf of the company 
 10% time 
Develop and continually review policy dealing with recruitment and training for 
human resources in order to enable the company to adapt to the rapidly changing 
fashion business and the global economy 
 30% time 
Formulating recommendations and guidance concerning future policy changes and 
business investments for the Board of Directors 10% 
On June 12, 2004, the director denied the petition. The director determined that the petitioner had not 
established the beneficiary would be employed primarily in a managerial or executive position. 
On appeal, counsel for the petitioner asserts that if the director had issued an RFE the petitioner would have 
had an opportunity to further clarify its position. Counsel contends on appeal that the director violated 8 
C.F.R. $ 103.2(b)(8) by failing to request further evidence before denying the petition. The cited regulation 
requires the director to request additional evidence in instances "where there is no evidence of ineligibility, 
and initial evidence or eligibility information is missing." Id. The director is not required to issue a request 
for further information in every potentially deniable case. If the director determines that the initial evidence 
supports a decision of denial, the cited regulation does not require solicitation of further documentation. 
Regardless, even if the director had committed a procedural error by failing to solicit further evidence andlor 
failing to fully evaluate the evidence submitted, it is not clear what remedy would be appropriate beyond the 
appeal process itself. The petitioner has in fact supplemented the record on appeal, and therefore it would 
WAC-04-177-52280 
Page 5 
serve no useful purpose to remand the case simply to afford the petitioner the opportunity to supplement the 
record with new evidence. The AAO will review the record as it is currently constituted and issue a decision 
on the merits. 
On appeal the petitioner has submitted a further description of the beneficiary's duties, employee position 
descriptions, an organizational chart, and tax records. While the AAO will accept these evidentiary 
submissions into the record, it should be noted that the description submitted by the petitioner is the same 
description as was initially submitted. Thus, the petitioner has not further clarified its position as it asserted it 
would have done in response to an RFE; it has simply reasserted its initial descriptions. 
Upon review, the petitioner's description of the beneficiary's duties is not persuasive. 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. 9 214.2(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. In this case the petitioner has asserted that the 
beneficiary will be primarily employed in an executive capacity, yet alternatively claims managerial capacity 
on appeal and refers to managerial duties throughout the record. A petitioner cannot claim that some of the 
duties of the position entail executive responsibilities, while other duties are managerial. A beneficiary may 
not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory 
definitions. 
The job description provided by the petitioner is vague and does not articuiate the beneficiary's specific 
duties. Reciting the beneficiary's vague job responsibilities as broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner 
has failed to answer a critical question in this case: What does the beneficiary primarily do on a daily basis? 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 
F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Statements such as "responsibility 
for company development strategy using dynamic leadership and innovative strategic planning" are too 
ambiguous to be of any probative value. Further, the description provided is not corroborated by any 
evidence contained in the record such as work product or evidence of the conduct of business by the 
petitioner. An additional example would be the lack of any evidence that there is actually a board of directors 
that holds meetings, issues directives and receives reports, which the petitioner claims are part of the 
beneficiary's duties. See Management Overview, attached hereto as petitioner's unlabeled appeal exhibit. 
Without evidence to corroborate the performance of the beneficiary's duties the petitioner's assertions are not 
persuasive. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of So@, 22 I&N Dec. 158, 165 (Cornrn. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus the petitioner's 
description is ambiguous and not corroborated or clarified by any evidence in the record. 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
WAC-04- 177-52280 
Page 6 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or managerial position. An individual whose primary duties are those of a 
first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her 
supervisory duties unless the employees supervised are professional. Section 101 (a)(44)(A)(iv) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. The descriptions of their duties provided by the 
petitioner are not corroborated by any evidence in the record. As an example there is no evidence that the 
chief marketing officer has performed any market analysis, used statistical data to gather research, researched 
market conditions, gathered data on competitors or collected data on consumer preferences. See Personnel 
currently supervised by [the beneficiary] in the US., entered in the record as petitioner's unlabeled appeal 
exhibit. This is in addition to the fact that much of the descriptions provided for the employees duties are 
speculative, claiming, for instance, that the chief marketing officer will manage a sales force of 5 - 10 
employees which does not exist, manage a marketing department which does not exist, and draft reports for a 
board that does not hold meetings or issue directives. Id. A visa petition may not be approved based on 
speculation of hture eligibility or after the petitioner or beneficiary becomes eligible under a new 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). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 
1998). 
As noted by the director, the facts surrounding the nature of the petitioner's business are murky. The tax 
records submitted by the petitioner indicate a fluctuating number of employees and nominal wages paid to the 
petitioner's employees. The petitioner has asserted that it "trades garments," yet the only evidence of garment 
related business activity in the record are documents labeled as "sales contracts" between the foreign 
organization and the petitioner, and which were executed by the "chief marketing officer" as a representative 
of the petitioner and the beneficiary as a representative of the foreign organization. There is no evidence that 
these garments were ever traded or sold, in a retail location or otherwise. See Contracts, entered in the record 
as petitioner's unlabeled exhibits, describing a purchase of fleece documents for a period in late 2003 and 
2004. The petitioner's 2003 tax documentation indicates that it only paid $13,000 in salaries and wages among 
four employees. Such wages are nominal, and undermine the petitioner's claims that its employees are 
working full time, or that the petitioner can support a managerial or executive position. The petitioner has not 
provided evidence of an organizational structure sufficient to elevate the beneficiary to a supervisory position 
that is higher than a first-line supervisor of non-professional employees. The descriptions of the employees' 
duties are uncorroborated by the record, and there is little evidence that the petitioner had been conducting 
business and that the duties of the employees have or will actually be performed. 
The record does not indicate that the beneficiary will be managng supervisory, managerial or professional 
employees. Although the beneficiary is not required to supervise personnel, if it is claimed that her duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 9 101(a)(44)(A)(ii) of the Act. The petitioner has submitted an 
organizational chart which lists 3 other employees under the beneficiary. However, while it appears these 
WAC-04-177-52280 
Page 7 
employees have managerial titles, the record does not indicate that there are any employees under them to 
actually perform the day to day activities. Thus, without a further articulation of how these employees 
actually function as managers and how their duties relate to the beneficiary, titles alone are not sufficient to 
establish that they are in fact managers or supervisors. 
In evaluating whether the beneficiary manages professional employees, the MO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. tj 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Cornrn. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the MO must focus on the level of education required by the position, rather than the degree held 
by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary, for example, to perform the work of the business development and marketing chief or 
financial officer, who are among the beneficiary's claimed subordinates. Pursuant to section 
101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial under the 
statutory definitions. Moreover, when the record is considered in its totality, with the lack of any evidence of 
business activity, lack of a clear business structure, and remuneration of employees, it is not clear that the 
beneficiary will operate in a primarily managerial or executive capacity. 
The record 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 hire additional managers and 
employees in the future. However, as noted above, the petitioner must establish eligibility at the time of filing 
the nonirnmigrant 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 ofMicheIin Tire Corp., 17 I&N Dec. 248. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a managerial or 
executive capacity, as required by 8 C.F.R. tj 214.2(1)(3). 
Beyond the decision of the director, the petitioner's description and evidence of the stock distribution of the 
companies is not consistent and it cannot be determined that a qualifying relationship exists between the 
United States and the foreign entity pursuant to 8 C.F.R. tj 214.2(1)(l)(ii)(G). The regulation and case law 
confirm that ownership and control are the factors that must be examined in determining whether a qualifying 
relationship exists between United States and foreign entities for purposes of this visa classification. Matter 
of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornrn. 1982). In the 
context of this visa petition, ownership refers to the direct or indirect legal right of possession of the assets of 
an entity with full power and authority to control; control means the direct or indirect legal right and authority 
WAC-04- 177-52280 
Page 8 
to direct the establishment, management, and operations of an entity. 
 Matter of Church Scientology 
International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362. Without full disclosure 
of all relevant documents, CIS is unable to determine the elements of ownership and control. 
In this case the petitioner has asserted on its Form 1-129 that the petitioner is owned 80% by the beneficiary, 
and 10% by. However, schedule K of the petitioner's 2003 Form 1120 
asserts is not a subsidiary in an affiliated group, and the Minutes of Annual Meeting of 
Shareholders submitted by the petitioner asserts that the beneficiary owns 90% of the petitioner and the other 
two named individuals 5% each. These assertions are inconsistent, and raise doubts about the actual 
ownership of the petitioner by the foreign organization. In addition, the stock certificates provided by the 
petitioner are numbered 18, 19, and 20, yet the petitioner does not explain why the remaining certificates are 
not presented and to whom they are or were issued. Thus, the record does not persuasively establish that a 
qualifying relationship exists. Consequently, it cannot be concluded that the petitioner is a qualifying 
organization doing business in the United States and at least one foreign country, or that it has a qualifying 
relationship with a foreign entity. See 8 C.F.R. 5 214.2(1)(l)(ii)(G). For ths additional reason the petition will 
be denied. 
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), affd, 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 
alternative basis for denial. 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. 
ORDER: 
 The appeal is dismissed and the petition hereby denied.