dismissed L-1A Case: Gem And Jewel Import

U.S. Department of Ifurneland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Irnrnigration 
Services 
FILE: EAC 02 247 54828 Office: VERMONT SERVICE CENTER Date: c.$!&~ 2 6 &e)~ 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 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. 
L-- *' 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 02 247 54828 
Page 2 
DISCUSSION: The nonimmigrant 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 evidence contained in the record, the petitioner was established in 2000 and claims to be a 
gem and jewel import and marketing firm. It claims to be a branch office of Bary & Company, located in 
Lanka. The petitioner claims one employee and gross annual income in the amount of 
$237,561.00. It seeks to extend its authorization to employ the beneficiary temporarily in the United States as 
its managing partner at a weekly salary of $800.00. The director determined that the petitioner failed to 
submit sufficient evidence to establish that the beneficiary has been or will be employed primarily in an 
executive or managerial capacity. 
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 primarily executive or managerial in nature. 
To establish L-1 eligibility under section lOl(a)(lS)(L) .ofthe Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 10 1 (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. 5 214.2(1)(l)(ii) states, in part: 
\ 
Intvacompany 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. 5 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(9 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 
EAC 02 247 54828 
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 issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that the 
beneficiary has been and will be employed primarily in an executive or managerial capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 lOl(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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 fi rst-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. 9 110l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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. 
EAC 02 247 54828 
Page 4 
Section 101(a)(44)(C) of the Act, 8 U.S.C. $ 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 fkction in light of the overall purpose and stage of 
development of the organization, component or function. An individual shall not be considered 
to be acting in a managerial or executive capacity (as previously defined) merely on the basis of 
the number of employees that the individual supervises or has supervised or directs or has 
directed. 
The petitioner initially described the beneficiary's duties in the petition as: "Look[s] for wholesale and retail 
stone and gem merchants in the United States and boost [sic] the sales operation of gems and stones." 
In response to the director's request for additional evidence on the issue, counsel described the beneficiary's 
duties as: 
The beneficiary gets shipment [sic] from Sri Lanka. He orders and supervises the 
manufacturing of some custom made gems and jewels material and markets the gems and 
jewels commodities in different shows and business exposition [sic] in the United States. 
The director denied the petition after determining that the evidence was insufficient to establish that the 
beneficiary had been or would be employed primarily in a managerial or executive capacity. The director 
noted that, although specifically requested, the petitioner failed to submit a complete position description for 
all employees in the United States; a breakdown of the number of hours devoted to each of the employees' job 
duties; and financial evidence relating to the number of persons employed by the U.S. entity. The director 
further stated that it appeared from the record that the beneficiary alone was primarily engaged in providing 
sales services to the company's clients at various trade shows and out of his home, rather than directing the 
management of the organization. The director concluded that the beneficiary had been and would be 
performing the day-to-day duties of the organization and that any managerial or executive duties were only 
incidental to such tasks. 
On appeal, counsel disagrees with the director's decision and asserts that sufficient evidence has been 
submitted to establish that the beneficiary has been and will continue to be employed primarily in a 
managerial or executive capacity. Counsel asserts that the beneficiary manages and supervises the U.S. 
entity and exercises discretion over the day-to-day operations of the organization. Counsel also asserts that 
the beneficiary, from time to time, during various trade shows and exhibitions, hires and supervises 
independent contractors. Counsel refers to an unpublished AAO decision in support of his claim on appeal. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been or 
will be employed in a 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 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 
EAC 02 247 54828 
Page 5 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). In the instant matter, the petitioner's description of the 
beneficiary's job duties is vague and fails to clarify the percentage of time spent performing managerial 
versus executive duties. There has been no evidence submitted that demonstrates which duties the beneficiary 
will be primarily performing for the U.S. entity. 
Counsel refers to an unpublished decision on appeal, in which the AAO determined that the beneficiary met 
the requirements of serving in a managerial and ~xecutive capacity even though he was the sole employee 
where it was shown that the organization hired and supervised independent contractors. Counsel has 
furnished no evidence to establish that the facts of the instant petition are analogous to those in the 
unpublished case. The petitioner has failed to submit evidence to substantiate its claim that the U.S. entity 
hires and supervises independent contractors for various trade shows and exhibitions. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Furthermore, while 8 C.F.R. 5 103.3(c) provides that MO precedent decisions are binding on all CIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties include managing the import, marketing, sales, and manufacturing of gems and 
jewels. The petitioner did not, however, define how the beneficiary manages the functions of the organization 
or how he supervises employees. 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, 
supra. 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 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). 
In addition, the petitioner describes the beneficiary as manufacturing, marketing, and selling the gems and 
jewels. Since the beneficiary actually manufactures, markets, and sells the gems and jewels he is performing 
a task necessary to provide a service. 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 (Cornrn. 1988). 
In the request for evidence, the director requested that the petitioner submit a U.S. business organizational 
chart; a complete position description for all employees in the United States; a breakdown of the number of 
hours devoted to each of the employees' job duties; and financial evidence including IRS Form 941 and 
payroll summaries relating to the number of persons employed by the U.S. entity. The petitioner failed to 
submit these documents in response, stating that the beneficiary was the only employee who, from time to 
time, hired and supervised independent contractors. Contrary to the petitioner's belief, this evidence is 
critical as it would have established whether the beneficiary has been and would be performing primarily in a 
managerial or executive capacity. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. $ 103.2(b)(8). The failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. $ 103.2(b)(14). The evidence and explanations submitted by the petitioner are insufficient to 
establish that the beneficiary has been or will be employed primarily in a managerial or executive capacity. It 
appears from the record that the beneficiary has been performing and will continue to perform the day-to-day 
EAC 02 247 54828 
Page 6 
services of the U.S. entity, rather than manage or supervise the business operation as a whole, a function 
within the organization, or personnel staff. Accordingly, the appeal will be dismissed. 
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. 9 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.