dismissed L-1A Case: Gas Station / Retail

U.S. Department of Homeland Secl~rity 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
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 and Immigration 
myat clearly unwarranted Services 
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File: 
IN RE: 
SRC 04 170 50300 
 Office: TEXAS SERVICE CENTER Date: SEP 0 5 2006 
Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (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. 
/~dministrative Appeals Office 
SRC 04 170 50300 
Page 2 
DISCUSSION: The Director, Texas 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 president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner, a Florida corporation, operates a gas station with a 
convenience store and automobile repair shop. The petitioner states that it is a subsidiary of - I, located in Peru. 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 status for one additional year. 
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 for the petitioner asserts that the director 
placed undue emphasis on the size of the U.S. company in denying the petition. Counsel contends that the 
beneficiary manages professionals and directs the marketing, personnel, policy, finance and contract 
negotiation components of the company, while the petitioner's employees and contractors relieve him from 
performing the day-to-day operations of the business. Finally, counsel asserts the beneficiary has recently 
signed contracts for a "major business deal," and had been working with three attorneys for this purpose in his 
role as president of the company. Counsel submits a brief and additional evidence in support of the appeal. 
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. 
 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. 
SRC 04 170 50300 
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 himher 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. 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 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. 
 1101(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 
SRC 04 170 50300 
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(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. 
The nonimmigrant visa petition was filed on June 1, 2004. The petitioner indicated on Form 1-129 that the 
U.S. company has six employees, and seeks to continue to employ the beneficiary as its president. The 
petitioner stated that the beneficiary's duties are as follows: "To be in charge of supervising the overall 
business, entering contracts with suppliers, hiring and dismissing employees." In a cover letter dated May 26, 
2004, counsel for the petitioner stated that the beneficiary "is presently in charge of all operations and holds 
the position of President. In general he carries out the same duties as abroad." Counsel referenced an attached 
letter of experience from the foreign company, but upon careful review of the record, the letter is not included 
among the documents submitted. 
The director issued a request for evidence on September 1 1,2004, instructing the petitioner as follows: 
Submit a statement describing the staffing of the U.S. company. This statement should clearly 
indicate the number of employees, the position and job duties of each employee, specific date 
each employee began employment with the company, and should be accompanied by 
evidence of wages paid to the employees. Submit the Employer's Quarterly State Tax Report 
for the 1" and 2nd quarters of 2004 . . . . Submit a work schedule for all employees. Also, 
submit evidence of any contract employees such as 1099 MISC and contracts. If you have 
any contract employees, submit a statement describing how often the US business uses their 
services ex. weeklylmonthly and number of hours. 
In a response dated December 8, 2004, counsel for the petitioner noted that "[tlhere is no rule or regulation 
concerning how many employees a company has for an L1-A executive visa renewal to be approved." 
Counsel indicated that the beneficiary supervises four employees, including one professional, one contractor 
and two subcontractors. The petitioner submitted the following position descriptions for its employees: 
SRC 04 170 50300 
Page 5 
[The beneficiary] - General Manager since February 27, 2003, in charge of supervising and 
oversees the work of the C-Store's Manager and Auto Center's Operator, negotiate and sign 
contracts, he supervises and approves quotes, he makes decision regarding the investment of 
equipment, inventory and improvements, he performs all types of banking, financial, credit 
and commercial operations with bank entities, he presents and gives input on investment 
projects for the expansion of the business, he reports to the shareholders of the business, he 
assesses the finance and promotes publicity and marketing of the business. 
- Convenience Store's Manager since October 14, 2003. She supervises 
the correct supply of products, the correct stock of the products, supervises and controls the 
work of the cashiers; she is in charge of making the corresponding payments to the various 
suppliers and employees. 
Cashier, working as a cashier since May 3,2003. Her duties include the use of 
the cash registers, customer service and assess the stock on a daily basis and places orders. 
Cashier, working since December 19,2003. Her duties include the use of the 
cash register, sale of products and customer service. 
Cashier, workng since October 4, 2004. Her duties include the use of the cash 
register, sale of products and customer service. 
Contract Em lo ees 
He started in July 2003 as the manager of the auto center but later on for the 
h est company's interest, he turns into an operator for the auto center (August 20, 2003). 
Today his duty is to operate the Auto Center, overseeing the work of his mechanics and give 
for the job. Customer Service. Working Orders. 50 hours per week. 
urrently employs two mechanics 
I- Mechanic 
Mechanic 
[The petitioner's] Accountant. Since June 24, 2003. 5 
Hours per month. 
The petitioner further indicated that it had utilized the services of three different attorneys in succession since 
November 2002, for the purpose of reviewing agreements, negotiations and legal assistance, for 
approximately 10 hours per month. 
The petitioner submitted a work schedule for all employees working in the gas station/convenience store 
which shows the operations manager working six five-hour shifts per week, and each cashier worlung five 
five-hour shifts, while the beneficiary works weekdays from 9:00 a.m. until 5:00 p.m. The petitioner's 
SRC 04 170 50300 
Page 6 
business operates seven days per week from 7:00 a.m. until 10:OO p.m. daily and the schedule shows that 
there is no overlap in the shifts of the lower-level employees. The petitioner submitted its Florida Forms 
UCT-6, Employer's Quarterly Wage Report, for the second and third quarters of 2004 confirming the 
employment of the beneficiary, the operations manager, and two cashiers. 
The etitioner also submitted a copy of the "operator agreement" between the U.S. company and 
dh 
 rn 
, which gives the latter the responsibility of operating the petitioner's auto service center in exchange 
for 50 percent of gross sales. The agreement indicates that the operator is responsible for taxes associated with 
the operation of the auto center and well as payment of an other em loyees required to operate the business. 
The petitioner submitted evidence of payments t as well as payments to the attorneys, 
accountant, and maintenance service provider included in the list of contractors. 
The director denied the petition on February 15, 2005 concluding that the petitioner had failed to establish 
that the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director discussed the petitioner's staffing levels and the nature of the petitioner's business, and 
concluded, that "due to the hours of operation and the job duties to be performed, three employees and the 
listed contract workers will not relieve the beneficiary of the day-to-day non-executive duties of the 
business." The director noted that the petitioner had failed to provide Forms 1099 for its contract employees, 
and noted that one of the cashiers was not hired until after the petition was filed. The director determined that 
the U.S. company had not expanded to the point where the services of a full-time president would be required. 
On appeal, counsel for the petitioner cites an unpublished decision in support of the proposition that the size 
of the petitioner cannot be the sole basis for denying a petition, and asserts that Citizenship and Immigration 
Services (CIS), nevertheless "does exactly that in its decision." Counsel recites the statutory definition of 
"executive capacity" at section 101(a)(44)(B) of the Act and states: 
As this applicant both manages professionals and directs the marketing, personnel, policy, 
finance and negotiation components, it is submitted that he satisfies both alternatives in (I), 
above, and that the materials submitted previously established his qualification under parts 
(2), (3) and (4) as well. 
In this case, the beneficiary supervise 4 other persons one of whom is a professional, and is 
responsible for choosing and assessing the work of independent professionals such as 
accountants and lawyers, as well as two other independent contractors (mechanics) who carry 
out the bulk of the day-to-day operations of the petitioner. . . . 9 Foreign Affairs Manual 
41.52 N8.2-la states that independent contractors are to be counted in determining executive 
status. 
Counsel emphasizes that the record contains sufficient evidence to establish the employment of the auto 
center operator and mechanics, even if the petitioner did not provide copies of Form 1099. Counsel asserts 
that the gas station and convenience store operated in its first year "was only the beginning investment." 
Counsel states that "contracts for a major business deal were signed after the application for renewal was 
submitted . . . . it was for this reason that the applicant had 3 other attorneys that the company has been 
working with." 
SRC 04 170 50300 
Page 7 
Counsel further contends that "if 3 independent contractors handle the mechaniclgas station aspect of the 
business and 3 cashiers (and a manager) handle the mini mart aspect it is clear that beneficiary is relieved" 
from performing the day-to-day operations of the business. Finally, counsel objects to the director's 
conclusion that the company has not expanded to the point where it requires a full-time president, contending 
that such a statement "begs the question as to who is going to run the company, much less expand it to handle 
new projects." 
Upon review of the petition and supporting evidence, the petitioner has not established that the beneficiary 
will be employed in a managerial or executive capacity under the extended petition. 
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. Counsel states that the beneficiary will be performing 
primarily executive duties under section 101(a)(44)(B) of the Act, but also references job duties, such as 
hiring and firing employees and supervising professionals and managers, which would appear to fall within 
the definition of managerial capacity. 
 A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
 The petitioner must 
demonstrate that the beneficiary's responsibilities will meet the requirements of one or the other capacity. 
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 show that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the 
requisite authority, but that a majority of his or her duties are related to operational or policy management, not 
to the supervision of lower-level employees or the performance of the duties of another type of non- 
managerial or non-executive position. 
The petitioner has submitted only a brief job description for the beneficiary's position which suggests that a 
significant portion of his time is allocated to the non-executive, non-managerial functions of the business. For 
example, the petitioner indicated that the beneficiary "negotiates and signs contracts," "supervises and 
approves quotes," "makes decision regarding the investment of equipment and inventory," "performs all types 
of banking, financial, credit and commercial operations with bank entities," and "assesses the finance and 
promotes publicity and marketing of the business." Based on these vague statements, and given the nature of 
the petitioner's business, it appears that the beneficiary is involved in day-to-day operations of the business 
including purchasing inventory, marketing the petitioner's business, and routine day-to-day banking and 
finance duties. The petitioner did not describe the nature of the contracts negotiated by the beneficiary, or the 
types of quotes "supervised and approved." While all of these tasks are essential to the operation of the 
petitioner's business, the petitioner has not established that these duties rise to the level of managerial or 
executive capacity as contemplated by the statutory definitions. 
The petitioner also stated that the beneficiary supervises the manager of the convenience store and the 
operator of the auto center, "presents and gives input on investment projects for the expansion of the 
SRC 04 170 50300 
Page 8 
business," and "reports to shareholders on the status of the business." While these statements suggest that the 
beneficiary exercises a certain level of authority over the business, the petitioner has failed to identify any 
specific "investment projects," describe what specific tasks the beneficiary performs in relation to these 
projects, or indicate how much time he devotes to such activities. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner's job description for the beneficiary 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. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), agd, 905 F.2d 41 (2d. Cir. 1990). 
Performing non-qualifying tasks necessary to produce a product or service, or other non-managerial and non- 
executive duties, will not automatically disqualify the beneficiary as long as those tasks are not the majority 
of the beneficiary's duties. Whether the beneficiary is a managerial or executive employee turns on whether 
the petitioner has sustained its burden of proving that his duties are "primarily" managerial or executive. See 
sections 101 (a)(44)(A) and (B) of the Act. The petitioner bears the burden of documenting what portion of the 
beneficiary's duties will be managerial or executive and what proportion will be non-managerial or non- 
executive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 199 1). 
 Here, the petitioner lists the 
beneficiary's duties as including both managerial and administrative or operational tasks, but fails to quantify 
the time the beneficiary spends on them. This failure of documentation is important because several of the 
beneficiary's daily tasks, as discussed above, do not fall directly under traditional managerial or executive 
duties as defined in the statute. However, based on the job description provided and as discussed further 
below, it is reasonable to assume, and has not been shown otherwise, that the beneficiary primarily performs 
purchasing, bookkeeping and first-line supervisory tasks that prevent him fiom serving in a "primarily" 
managerial or executive capacity. 
The petitioner's response to the director's request for additional information regarding the petitioner's staffing 
levels and each employee's job duties supports a conclusion that the beneficiary would perform a combination 
of managerial duties and non-qualifying first-line supervisory and operational duties. 
 Although the 
beneficiary is not required to supervise personnel, if it is claimed that his duties involve supervising 
employees, the petitioner must establish that the subordinate employees are supervisory, professional, or 
managerial. See 8 10 1 (a)(44)(A)(ii) of the Act. 
 Furthermore, 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 those of 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 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 manager 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 claimed 
subordinate, the convenience store manager, is employed in a supervisory position. Instead, the record 
SRC 04 170 50300 
Page 9 
indicates that the "store manager" performs the actual day-to-day tasks of operating the petitioner's retail 
store. As noted by the director, according to the work schedule submitted by the petitioner, the "store 
manager" never works in the store at the same time as her claimed subordinates and thus it is not clear how 
she supervises the claimed employees and activities. 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 of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Based on the evidence submitted, it is 
reasonable to assume that the "store manager" performs the duties of a cashier, as she is the only employee in 
the store, other than the beneficiary, during the 30 hours she works each week. 
Although the "store manager" apparently has a bachelor's degree, 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. 3 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. 817 (Comm. 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 a 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 baccalaureate degree is 
actually necessary to perform the duties of this position. Thus, the petitioner has not established that this 
employee could be classified as a professional. Although the petitioner has submitted evidence that the 
company utilizes the services of an accountant and an attorney for a total of approximately 15 hours per 
month, these contractors, while professionals, have been retained to provide specific limited services, and 
cannot be considered to work under the beneficiary's supervision in the daily operation of the petitioner's 
business. 
Finally, the MO acknowledges the petitioner's claim that the beneficiary will supervise the automobile 
repair shop operator, who in turn hires sub-contracted mechanics. However, the petitioner has not provided 
evidence of payments to the mechanics, and thus has not established that the repair shop operator is employed 
in a supervisory capacity. Thus, the petitioner has not shown that the beneficiary's subordinate employees are 
supervisory, professional, or managerial, as required by section 10 1 (a)(44)(A)(ii) of the Act. 
The petitioner suggests on appeal that the director placed undue emphasis on the petitioner's personnel size in 
determining that the beneficiary would not be employed in a primarily managerial or executive capacity. 
Pursuant to section 10 1 (a)(44)(C) of the Act, 8 U.S.C. 3 1 101 (a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
SRC 04 170 50300 
Page 10 
levels of the petitioner. See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(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 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. 
The petitioner operates a gasoline station and convenience store that is open for business for 105 hours per 
week, as well as an automobile repair shop that is operated by an independent contractor. At the time of filing, 
the petitioner employed one president, one part-time store manager, and two-part time cashiers who worked a 
total of 80 hours per week in the convenience store. The petitioner has a reasonable need for one or more 
employees in the store to perform all of the day-to-day functions of ordering merchandise and supplies, 
arranging and stocking merchandise displays, cleaning the store, processing customer purchases, receiving 
deliveries, reconciling daily cash register receipts and many other routine duties. Contrary to counsel's 
assertion on appeal, it is not clear that the beneficiary is relieved from performing these duties. Rather, it is 
reasonable to assume, and has not been shown otherwise, that the beneficiary would be required to perform 
these duties during the 25 hours per week when no other employee was available to work in the store. In 
addition, as discussed above, the beneficiary's job description suggests that he performs non-qualifymg duties 
related to the purchasing, inventory, marketing, administration and finance functions. 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 Int 'I., 19 I&N Dec. 593, 604 (Comm. 1988). 
On appeal, counsel cites to the statutory definition of "executive capacity," and asserts that the beneficiary 
satisfies each of the criteria for this classification. 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, 8 U.S.C. $ 1 101(a)(44)(B). Under the statute, a beneficiary must have the ability to 
"direct the management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate level of managerial 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- 
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 fi-om higher level executives, the board of directors, or stockholders of the 
organization." Id. 
The petitioner has not demonstrated the beneficiary occupies an elevated position within a complex 
organizational hierarchy, other than in position title, nor does the record show that the beneficiary is primarily 
focused on the broad policies and goals of the organization. Rather, as discussed above, it is evident that the 
beneficiary is engaged in supervising lower-level employees and performing the day-to-day operations of the 
company. 
SRC 04 170 50300 
Page 11 
In this matter, although the beneficiary evidently exercises discretion over the day-to-day operation of the 
business, the beneficiary has not been shown to primarily perform duties associated with the high-level 
responsibilities identified in the statutory definitions. The actual duties themselves reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 
(2d. Cir. 1990). The fact that the beneficiary manages a business, regardless of its size, does not necessarily 
establish eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). The 
record must establish that the majority of the beneficiary's duties will be primarily directing the management 
of the organization or a component or function of the organization. 
The AAO acknowledges the petitioner's claim that an additional part-time cashier was hired in October 2004, 
two months subsequent to the filing of this petition. Counsel also claims that the petitioner recently concluded 
a "major business deal" and suggests that the company is in the process of expanding to other investments or 
pursuits. However, 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 of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The 
regulation at 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date 
of approval of the petition to support an executive or managerial position. There is no provision in CIS 
regulations that allows for an extension of this one-year period. In the instant matter, the petitioner has not 
reached the point that it can employ the beneficiary in a predominantly managerial or executive position. For 
this reason, the appeal will be dismissed. 
Beyond the decision of the director, the record as presently constituted does not contain evidence that the 
petitioner and the foreign entity maintain a qualifying relationship, as required by 8 C.F.R. 
214.2(1)(14)(ii)(A). To establish eligibility, the petitioner must show that the beneficiary's foreign employer 
and the proposed U.S. employer are the same enti 
 or are related as a "parent and subsidiary7' or "affiliates." 
The petitioner claims to be a subsidiary of 
N 
located in Peru, but has provided no 
documentary evidence of the ownership and contro o eit er entity. 
 e record is also devoid of evidence of 
the financial status of the U.S. company, as required by 8 C.F.R. $ 214.2(1)(14)(ii)(E). Because the director 
failed to request this required initial evidence in the request for evidence, the AAO notes these deficiencies 
for the record and notes that the petition cannot be approved without such evidence. 
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. 1361. Here, the petitioner has 
not met that burden. 
ORDER: The appeal is dismissed.