dismissed L-1A Case: Glass Retail And Distribution

U.S. Department of Homeland Security 
20 Massachusetts Ave., NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC 03 204 5 1227 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 204 5 1227 
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 president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of California 
that is engaged in retail sale and distribution of glass, mirrors and related items. The petitioner claims that it is 
the subsidiary of Chung Wah Glass Company located in Hong Kong. The beneficiary has been employed as 
the petitioner's president in L-1A status since November 1999 and the petitioner now seeks to extend her stay 
for an additional three years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would 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 th12 director 
failed to consider the beneficiary's actual job duties in rendering his decision and that the beneficiary qualifies 
as a manager or executive. In support of this assertion, the petitioner submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet thle criteria 
outlined in section 101(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. Ij 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 (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 employmer~t 
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 pric'r 
education, training, and employment qualifies himlher to perform the intended 
WAC 03 204 5 1227 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
At 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. 5 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 superviseti, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. # 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 a June 24, 2003 letter submitted with the initial petition, the petitioner described the beneficiary's job duties 
as follows: 
WAC 03 204 5 1227 
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(1) formulate company overall administrative and business operation policies and decisioris 
in compliance with local corporate laws and regulations; 
(2) oversee and coordinate administrative, purchasing and export transactions with parent 
company, US suppliers and other business entities; 
(3) formulate the company business development plan and strategies and direct 
establishment of management systems, procedures, and policies; 
(4) direct company business promotion and public relations arrangements; 
(5) contact advertising businesses, suppliers and trade associations for business 
opportunities; 
(6) maintain sound financial conditions of company; and 
(7) organize board meetings and direct proper record keeping and administration of the 
company. 
On September 14, 2003, the director requested additional evidence. Specifically, the director requested: (1) a 
copy of the U.S. company's organizational chart including names of all employees, a brief description of their 
job duties, educational level and annual salaries; (2) the U.S. company's payroll summary, W-2s and W-3s; 
(3) signed and certified copies of the U.S. company's Federal and State income taxes for the last tax. year; (4) 
a detailed description of the beneficiary's duties, indicating what she does on an everyday basis; and (5) 
evidence that the petitioner is doing business in the United States. 
In response, the petitioner submitted unsigned copies of its 2002 U.S. and California income tax returns, 2002 
Forms W-2 and Form W-3, and its Forms DE-6, Employer's Quarterly Wage Reports for the first two 
quarters of 2003. In response to the director's request for a detailed description of the beneficiarqr's duties, 
the petitioner submitted a letter dated December 3, 2003 which included the same job description quoted 
above. In addition, the petitioner indicated that there are four employees working under the beneficiary's 
administration and control, including a "manager" responsible for purchasing and sales activities in the North 
America region and inventory control; a part-time secretaryladministrative clerk responsible fiar record 
keeping and administrative matters; a bookkeeper responsible for bookkeeping, accounts payablelaccounts 
receivable and inventory; and a warehouse person, responsible for warehouse control and shipping and 
receiving. As evidence that the company is doing business, the petitioner submitted three invoices written 
primarily in Chinese, and a receipt for a deposit received for installation of glass at a donut shop. The 
petitioner also stated that it was planning to open a second glass store in Oakland, California and submitted a 
copy of an agreement for the purchase of goodwill, inventories and equipment from the property's current 
tenant. 
On December 18, 2003, the director denied the petition. The director determined the beneficiary has not been 
and will not be employed primarily in a managerial or executive capacity. The director noted thalt there is 
neither sufficient evidence to demonstrate that the beneficiary will supervise or control the work of other 
supervisory, professional or managerial employees who will relieve her from performing non-qualifying 
duties, nor evidence that the beneficiary would function at a senior level within an organizational hierarchy. 
The director concluded that the beneficiary was performing the non-qualifying duties necessary to run the 
office on a daily basis. 

WAC 03 204 5 1227 
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the 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). 
Without a comprehensive job description of the beneficiary's duties on which to base his determination, the 
director looked to the petitioner's staffing levels in order to determine whether the beneficiary could be 
deemed to be serving in a primarily managerial or executive capacity. As required by section 101(a)(44)(C) of 
the Act, 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. 
At the time of filing, the petitioner was a five-year-old company that claimed to be engaged in retail sale and 
distribution of glass. In 2002, the petitioner achieved $82,286 in gross receipts, reported taxable income of 
-$69,474, and paid a total of $20,200 in wages, not including the beneficiary's salary. At the time of filing in 
July 2003, the petitioner employed the beneficiary as president, a "manager," a bookkeeper, a  lar rehouse 
person and a part-time secretary. The petitioner claims that the manager relieves the beneficiary from non- 
qualifying duties by supervising the other employees and the company's day-to-day business. Based on the 
Forms DE-6, Employer's Quarterly Wage Reports submitted, the "manager," who is described as being 
responsible for purchasing and sales activities rather than management or supervisory activities, appears to 
have worked for the petitioner for a single two-week pay period prior to the filing of the petition. Prior to June 
2003, it appears that the beneficiary would have been solely responsible for all purchasing and sales activities 
of the company. 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 0,' Church 
Scierltology International, 19 I&N Dec. 593, 604 (Comm. 1988). In addition, some of the other staff members 
appear to have been hired just a few months prior to filing of the petition, and the company had only two full- 
time employees in 2002, the beneficiary and the warehouse person. Further, the AAO notes that all of the 
invoices submitted appear to be for sale and installation of customized glass windows and mirror:;, but the 
petitioner does not claim to have any staff responsible for custom glass cutting, delivery or installation, nor is 
there any evidence to suggest that the petitioner contracts outside labor to perform these services. The absence 
of personnel to perform these key tasks raises questions regarding the credibility of the claimed job duties of 
the petitioner's other employees. 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 above, it is not clear how the petitioner has 
been supporting or will support the beneficiary in a position that is primarily managerial or executive in 
nature. 
Consequently, a critical analysis of the nature of the petitioner's business undermines counsel's assertion that 
it has a sufficient staff of subordinate employees who relieve the beneficiary from performing non-qualifying 
duties. Rather it appears that the beneficiary, who is described as "directing company business promotion and 
public relations arrangements" and "contacting advertising businesses, suppliers and trade associations for 
business opportunities" is the only individual performing any marketing functions, and that she had also been 
responsible for all sales and purchasing activities as recently as two weeks prior to filing the petition. To 
establish that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must 
specifically articulate why those needs are reasonable in light of its overall purpose and stage of development. 
WAC 03 204 5 1227 
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In the present matter, the petitioner has not explained how the reasonable needs of the petitioning enterprise 
justify the beneficiary's performance of non-managerial or non-executive duties four to five years after the 
company commenced business operations in the U.S. Furthermore the reasonable needs of the petitioner will 
not supercede the requirement that the beneficiary be "primarily employed in a managerial or executive 
capacity as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 3 1101(a)(44). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute 
the majority of the beneficiary's duties or whether the beneficiary primarily performs non-managerial 
administrative or operational duties. The petitioner's description of the beneficiary's job duties does not 
establish what proportion of the beneficiary's job duties is managerial in nature, and what proportion is 
actually non-managerial. See Republic of Trnnskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. Despite counsel's assertions on appeal that the beneficiary supervises a 
manager, the manager appears to be a non-professional salesperson who does not actually perform 
supervisory duties. Because the beneficiary is primarily supervising a staff of non-professional employees, 
the beneficiary cannot be deemed to be primarily acting in a managerial capacity. 
Finally, the petitioner's 2002 Federal and State Income tax returns clearly state the petitioner operates 
primarily as a Chinese restaurant known aq yet the petitioner has not claitned to be 
involved in any activities other than retail sale of glass products. The petitioner has provided only limited 
evidence that it had been selling and installing glass prior to the filing of the instant petition, and it did not 
provide any explanation as to why its tax returns indicate that it was operating as a restaurant only months 
prior to submitting the petition to extend the beneficiary's L-1A status. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
point to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The fact that an individual manages a small business does not necessarily establish eligibility for classification as 
an intracompany transferee in a managerial or executive capacity within the meaning of section 101(a)(44) of the 
Act. The record does not establish that a majority of the beneficiary's duties have been or will be primarily 
directing the management of the organization. The petitioner has not demonstrated that the beneficia~y will be 
primarily supervising a subordinate staff of professional, managerial, or supervisory personnel who relieve her 
from performing non-qualifying duties. The petitioner has not demonstrated that it has reached or will reach a 
level of organizational complexity wherein the hiringifiring of personnel, discretionary decision-making, and 
setting company goals and policies constitute significant components of the duties performed on a day-to-day 
basis. Nor does the record demonstrate that the beneficiary primarily manages an essential function of the 
organization or that she operates at a senior level within an organizational hierarchy. Based on the evidence 
furnished, it cannot be found that the beneficiary has been or will be employed primarily in a qualifying 
managerial or executive capacity. For this reason, the petition may not be approved. 
The director's decision does not indicate whether he reviewed CIS'S prior approvals of the petitioner's other 
nonimmigrant petitions submitted on behalf of this beneficiary. If the previous nonimmigrant petitilsns were 
WAC 03 204 5 1227 
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approved based on the same unsupported and contradictory assertions that are contained in the current record, 
the approval would constitute material and gross error on the part of the director. The AAO is not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that may have been erroneous. See, e.g. Matter of Church Scientology lnternatiorzal, 19 :[&N Dec. 
593, 597 (Comm. 1988). The prior approvals do not exclude CIS from denying an extension of the original 
visa based on reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 
2004 WL 1240482 (5th Cir. 2004). 
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. 3 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.