dismissed L-1A Case: Grocery And Computer Hardware

U.S. Dcpertmcnt of tlnmrland Security 
?O Massachusc~ts Aw.. U.W . K~I 4?0J? 
H'ashington. OI' 2053 
U.S. Citizenship 
and Immigration 
File: Office: CALIFORNIA SERVICE CENTER Dare: 
MAY \? DO3 
IN RE: Petitioner: 
Benefic~ary: I:, 
Perttion. ~etitibn for a Non~mmigrant Worker Pursuant to Section IOl(a)(I SXL) althe imm~gration 
and Nationality Act. 8 U.S.C. 6 1 101 (a)(] 5)(L) 
IN BEHALF OF PETITIONER.. 
INSTRUC I IONS: 
I! 
1'111s is the decis~on of the Administratire Appeals Ofice in your cane All daurnen~s have  be;^^ refanled to 
the oftice that origina!ly dec~dcd your care. Any further inqu~~ must be niade to that office 
Ruben P Wiemann. ~iirL.4 
Adm~n~strative Appeals Ofice 
'I 9 
Page 2 1 
I 1 
DISCUSSION. Ther Director. CaIifornia Service Center. denled the petltion for a notiinlmigrarit visa Tlie 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO w~ll d~smiss the appeal. 
I 
Tlie petitioner filed this noriirnmigralit petition seeking to extend the employment of ns President as an L-IA 
nonitnrn~grant intrac4mpany transferee pursuant to section lOl(a)(lS)(L) of the Immigratron and Nat~onalit) 
Act (the Act). 8 u.s.~. 3 110l(a)(15)(L). The petitioner is a corporation organized in the State of Califcrnis 
that operates a groce'rs and acts as a distributor of cornouter hardware. The oetitiorier claims that ~t is the 
subsidiary of-located in Ludhiana. India. The bcn;ficiary was in~tiall) granted a 
one-year per~od of stay to open a new office in the United States and the petit~oner nou seeks to extend the 
beneficiary's stay. 
The director denied the petition concl~~ding that the petitloner did not establish that the beneficiary *III be 
employed in the United States in a primarily managerial or executive capacity. 
I ' I 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
fonvarded the appea13to the AAO for review. On appeal, counsel for the petitloner asserts that the majority of 
the beneficiary's tlnie will be devoted to managerial and executive duties, and that the pet~tioncr employs 
suffic~ent suhord~nate staff members to relieve him from substantial involvement in day-to-day tasks 111 
soppon of tliese asscq~ons, counsel submits a brief, 
'TO establish cl1gibili;y for the L-l norllrnlnlgrant visa classification, the petitioner must tneet thc crltel la 
outl~ned III section 10l(a)(15)(L) of the Act. Specifically, a qualifying organization must havc eniplo)ed the 
beneficiary in a qualifying managerial or exccutlve capacity. or in a specialized Lnowledge capacit). for one 
continuous year wrth;ln three years preceding the beneficiary's applicat~on for admission into the Onitctl 
States In additloll, tlje beneliciary must seek to enter the Un~ted States ~en~porarily to continue rc~iderllig h~s 
or her services to th~ same employer or a subs~diary or affiliate thereof in a managcr~al. euccutlve. or 
specialized knowledge capacity. 
The regulation at 8 C F.R $ 214 2(1)(3) states that an individual petit~on lilcd on Form 1-12') 5llall bc 
accompaniedh). ,! 
(1) Evidence that the petitioner and the organizat~on which employed or will employ thc 
alien are qiralify~ng organi7ations as defiried in paragraph (I)(i )(il)(ti) of this section 
(i'i) Evidence that the alien will he employed in an executive: managerial. or specialized 
' 
knowledge capacity, including a detailed description of the 'services to be performed. 
(iii! ~videyce that, the alien has at least one continuous year of full time rn~ployn~cnf 
abroad with a qualifying organizatioli within the three years preceding fhc filing'of 
the pchtion. ' 
(iv) Evidelice that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowletlge ~nd that the alic11.s prior 
- Page 3 
education, training, and employment qualifies himiher to perform tlie iritended 
services in the United States: however. tlie work in the United States need not be the, , 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 3 214.2(1)(14)(ii) also provides that a vlsa petition. which involved the opening of a 
new office, may be extended by filing a new Form 1-1 29, accompanied by the following: 
(A) Evidence that the Unitcd States and foreign entities are still qualifying organrzations 
as defined in paragraph (I)(\ )(ii)(Ci) of this section: 
(B) Eviderlce that the United States entity has been doing business as defined In 
paragraph (l)(l)(ii)(H) of th~s 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 perfomi under the extended petition: 
(Dl A statement describing the staffing of the new operation, including the number of 
e~nployees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will he employed in a managenlent 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 ernployed by the Unitcd States entity rn a 
pr~mar~lq managerial or executive capacitj. 
Scction 101(a)(34)(A) of the Act. 8 U.S.C. tj 1101(a)(44)(A). dcfines the term "~nanagerial capacity" as an 
assignment wrthin an organization in which the employee primarilj: 
(i) mailages the organization, or a department. subdivision, firnct~on. or component of 
the organlmt~on,, 
(ii) supervises and controls the work of other supervisory. professional. or managrr~al 
employees. or manages an essential function within the organization. or a department 
or subdivision of the organization: 
(ill) iT another eniplo)ee or other employees are d~rectly supervised. has the authority to 
hire and fire or recommend thosc as  ell as other personnel actions (s~~ch ac 
promotion and leave authorization). or if no other e1nplo)ee iq drrectly supcrv~sed. 
functions at a senior level wtth~n the organ~rational Ilrerarch> or wit11 respect to thc 
function managed: and 
- 
Page 4 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting' in a managerial capacity merely by virtile of the supervisor's st~pervisory 
duties unless the employees supervised are professional. 
Section IOl(a)(44)(B) of the Act. 8 U.S.C. $ I lOI(a)(JJ)(B). defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily. 
(i) directs the management ofthe organization or a major colilponent or filnct~on of the 
organizat~on; 
(ii) establishes the goals and policies of the organization. component. or function: 
(iii) exercises wide latitude in discretionary decision making; and 
(IV) recelvcs only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
111 a lctter submitted w~th the tnitial petition on Octobcr 38. 7003. the petitioner described the beneficiary's job 
duties a5 follows. 
As President. [the beneficiary] will continue to be the highest-level person in the U..S. 
responsible for the company's operations. Specifically. as President, [the beneficiary] plans. 
develops, and establishes policies, and establishes responsibilities and procedures for 
attaining objectives. He reviews activity rcports and financial statements to determine 
progress and status in attaining objectives and reviscs objectives and plans in accordanci with 
current conditions. He directs and coordinates fortnulation of financial progranls to provide 
funding for new or continuing operations to maximize returns on investments, and to increase 
productivity. He plans and develops public relations policies designcd to in~prove [the] 
company's image arid relations with customers. employees. and the public. ' lie evalu?tes 
perforniance of employees for compliance witti established policies and objectives of thc 
colnpany. 
The petitioner provided that it purchased a market on July 8, 2003. and it cmploys, seven cniployecs to 
perforni the necessary work. The petitioner stated that it started a computer components distribution company 
in September 2003. and the required day-to-day work is performed by an individual who holds a postgraduate 
degree in,'computer applications. The petitioner indicated that it intends to hire additional employees for hoth 
opera1 tons. 
On Ikcembcr 3. 1-003. the director requested additional c\ ~dence. Specifically. the director it~st~ucted the 
petitioner as follo~s: 
Page 5 
Emplovees In the U.S.. lndicate the total number of employees at U.S location rrhere the 
beneficiary will be employed. 
U.S. Business Oreanizational Chart: Submit a copy of the U.S. conipatiy's line and block 
organizational chart describing its managerial hierarchy and staffing levels. The chart sho~tld 
include the current names of all executives, managers, supervisors. a~ld number of employees 
mithin each department or subdivision. Clearly identify the beneficiary's position in the chart 
and list &I employees hnder the beneficiary's supervisioli by name and job title. Also include 
a brief description of job dut~es, educational .level, annual salar~es/wageb for 4 etnployees 
under the beneficiary's supervision. The submitted orgariizatlonal chart does not contain 
sufficient ~nformatlon as listed above. 
Duties in the U.S.: Submit a more detailed description of thc beneficiary's duties in the U S.. 
Be specific. Indicate exactly whom the beneficiary directs including their job title and 
position descriptlon. 
Form 941, Ouarterlv Report: Provide copies of the U.S. company's Federal Form 941. 
Quarterly Wage Reports for all employees for the last four quarters. 
Payroll Summary: Submit copies of the U S. company's payroll summary. W-2's and W-3's 
evidencing wages paid to employees. 
Form DE-6. Ouartcrly Wage Re~ort: Submit copies of the 1I.S. company's California 
Employment Development Department (EDD) Forin DE-6, Quarterly Wage Reports for all 
employees for the last four quarters that were accepted by the State of California I he fornis 
should include the names. social security numbers, and number of weeks workcd for all 
employees 
In a response dated February 23, 2004, the petitioner subniitted: (I) an organizatio~ial chart; (2) its Forms 
DL-6 and Forms 941 for the last tho quarters: (3) a summary of'the petitioner's payroll: arid (4) a more 
detailed descriptlon of the beneficiary's dutles as follows: 
[T]he majority of [the beneficiary's] time is spent supercisirig the overall operation of the 
ation. This is priniarily done by supervising the heads of the two dirislons - 
Manager of [the petitioner's] Market, and ~urchire Manager o 
petitloner's computer hardware operation] - to ensure the company's sinooth operation and 
continued growth [The beneficiary] meet[sJ with or speah[s] mith these managers on a daily 
basts and discuss[es] goals and object~ves that Ihe has] set. and to discuss with the problems 
and Issues. While [the henefic~aryl leave[s] the smaller dccisiolis to the~r discrct~on. [he] 
frnd[s] that there are still a number oidecis~ons that [he] must make daily. 
In add~t~on. [the beneticiary] uork[s] closely with [the petltloncr'sj C'rrtified' Public 
Accountants . . . to keep [Iilsl tinger on the financial pulse of thc organ17atlon 1-his IS 
perhaps [his] most important function at [the petitioner.] Specifically. [he] analy~e[sj sales 
figures. cash flow forecasts, balance sheets. and other financial reports to form strategies and 
make decisions affecting the financial well-being of the company. When and where to lease 
office space, ~hcn to hire emp\oyees. when to buy new equipment, etc. are crucial decisions 
that must be timed just right to ensure the proper cash flow and to ensure that the organization 
is properly situated to continue its growth. In addit~on to keeping the two divisions of [tlie 
petitioner] operating at peak efficiency, [the beneficiary is] continuing to look for additional 
business ventures for [the petitioner] to embark upon. 
. . 
[The beneficiary is] also responsible for all personnel decisions. including hiring, firing, and. 
related matters. Most importantly at' this stage in [the petitioner's] development, [the 
.: beneficiary] spend[s) a fair amount of time in recruitment. This involves determined [sic] the 
staffing needs of the organization. and then searching for an individual to meet'these needs., 
[Thc beneficiary has] recently hired a Sales Manager and Shipping Clerk for [the computer 
hardware operation], and [he] willclosely monitor the staffing situation to be ready to hire 
additional staff as sales continue to grow. 
The petitioner indicated that it employs ten individuals including the bencficiary. sis of who work in the 
market and three who work in the computer hardware division., . . 
On April 13, 2004. the -director denied the petition. The director determined that the petitio;;er did not 
establish that the beneficiary will be eii~ployed in the United States in a primarily managerial or esecutive 
capacity. Specifically. the director stated that following: 
Since the purchasing manager. sales manager and food rctail market manager do not haye any 
professiorial worker[s] under their supervision, they are riot performing duties of [a] m?nager 
as detincd in 8 C.F.R. [$I 214.2(l)(ii)(B) . : . . With tflree managers performing non- 
managerial duties and with no professionals working for the petitioner the beneficiary niust 
have been engaged in the petitioner's daily busincss activities. .There is no edence on record 
of a subordinate staff of professional, managerial or supcrvisory personnel to 'relieve the. 
' . beneficiary frorn perfo~ming non-managerial duties. As such, thc beneficiary's duties are not 
primarily managerial or executive as claimed. 
'The petitioner has provided no comprehensive description of the beneficiar} 's dut~es that 
would demonstrate the beneficiary would be managing the organ~zation. or managing a 
department. subdivision. functron. or ccmponent of the company. 
On appeal, counsel asserts that the major~tj of tlie bcnefic~ary's time \v111 be devoted to ~iianager~al '~nd 
executive dut~cs, and that the petitloner employs sufticiei~t subordinate staff members to relieve h~m from 
substantial involve~nent rn day-lo-day tasks. On Form I-290B. counsel asserts that "[mlanaycment of non- 
profess~orials IS not a bass for denial under the [,-]A classlficat~on " Counsel cltes an unpubl~slied AAO 
Page 7 
decision to stand for the proposition that a sole etnployee can qualify as an executive or manager Counsel 
states that "[CIS'S] statement that the beneficiary 1s not performi~ig in an executive capaclty because of the 
types of employees being supervised does not hold weight." Counsel cites the decision of the United States , 
Court of Appeals for thc Fifth Circuit in ~Vutiorral H~~trcl Tool C'orp. v Pirrqtmor~~ll, 889 F.2d 1472. n 2 (5"'Clr 
1989) to stand for the proposit~on that "[the Act] was not ~ntended to l~rnit managers or executives to person? 
who bupervlse large numbers of persons" Counsel further asserts that tlie beneficiary manages an essential 
function of the petitloner. 
Upon review. counsel's assertions are 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. 
42(1)(3)(iij. The petitioner's description of the job duties must clearly describe the duties to bc 
performed by the beneficiary and indicate tvhether such duties are either in an executive or managerial 
capacity. Itl. In the instant matter. counsel i~~itially claims that the beneficiary will bc primarily engaged with 
both managerial and eiecutive duties, and later argues that the majority of the beneficiary's time will be 
devoted to executive tasks. To sustain an assertion that a beneficiary is prinlarily employed in both a 
managerial and an executive capacity. the petitioner must establish that the beneficiary meets each of the four 
criteria set forth in thk statutory definition for executive duties under section I01(a)(44j(~) of the Act. and the 
statutory definition for managerial duties under scction 101(aX44)(A) of the Act. At a .minimum, the 
petitioner must establish that the beneficiary is primarily emplo)ied in one or the other capacity. See 8 C.F.R. 
9 2 14.2(1)(3)(ii), , 
The.petitioner indicates that the beneficiary's duties include responsibility fAr the .petitioner's two divisions. 
and that he si~pcrvises managers and subordinate staff men~bers who carry out the day-to-day tasks. The 
descriptions ?f.the beneficiary's duties reflect that he does perform some executive and managerial dutit:~. 
such as making financial and personnel decisions. Yet. a close examination of the petitioner's staffing reveals 
that he is required to spend a majority of his time engaged with non-qualifying duties such as acting as a first- 
line supervisor in the petitioner's grocery store, as discussed below. 
Counsel cites an unpublished AAO decision and Ntrtio1ial Ffanrl Tool Corp. rt. Pasqirurcll, 889 F.7-d 1473,. n.2 
(5Ih Cir. 1989) to stand for the proposition that the petitioner's staff size cannot be a detcrniinative factor in 
denying' the petition. In the unpublished decision, the AAO determined that tlie beneficiary met thc 
requirements of serving in a managerial and executive capaciiy for L-l classification even .thoilgh he was the 
sole employee. Co~insel has furnished no evidence to establish that the facts of the instant petition art: 
analogous to thosc in the unpublished matter. Going on record without supporting documentary evidence is, 
not sufficient for purposes of rnecting the burden of proof in these proceedings. .See hlottrr ~f.S'qffci. 22 I&N 
Dec. 158. 165 (Comm.' 1998) (citing hlatter of Trerrsurr Crcrfl of C7~1lijbrtlio. 14 I&h' Dec. 190 (Keg. Conlm. 
1972)): Furthermore. while 8 C.F.R. fj 103.3(c) provides that AAO precedent decisions are binding on all 
CIS employees in the administration of the Act, unpublished decisions are not similarly binding. Counscl has 
fi~rnislicd noevidence to establish that the facts of thc instant petition are analogor~s to thnsc in ~\~~rtiot,trl H~lrltl 
7bol C'orp. .v. fu.vyuurell. It is noted that ,fr~riorlal Hard Tool r. Prr.sc/~murrll relates ,to an immigrant 
visa petition. and not the' extension of a "new office" nonimmigrant visa. As the new oflice estension 
regulations call for a review of the petitioner's business activities arid staffing after one year. N~riionul Mrrld 
Tool C'orp. 1,. I'LI.T~Nc/~~// is distinguishable hascd on the applicable regulations. See 8 C.F.R: 9 
- Page 8 
2 14.2(IX14)(ii). As counsel has not discussed the facts of the cited matters. they will not be considered in this 
proceeding. 
Yet. counsel correctly observes that a company's size alone. without taking into account the reasonable nerds 
of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See section I Ol(a)(44)(C). 8 U.S.C. 1 101(a)(44)(C). Pursuant to section I Ol(a)(44)(C) of the 
Act, 8 I1.S.C. 9 I IOl(a)(44)(C), if staffing levels are used as a factor in determining M:hether 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 
~natter. 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 l'cvels of the petitioner. .Ge 8 
C.F.R. 9 2 IJ.2(1)(14)(ii)(D). The regulation at 8 C.F.R. g 2 14.2(1)(3)(v)(C) allows the "new oftice" 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 estension of this one-year period. If the business does not 
have sufficient staffing after one year to relieve the beneficiary from primarily perforti~ing operational and 
administrative tasks, the petitioner is 'ineligible by regulation for an extension. 
. . 
The petitioner operates a grocery store and a computer'hardware division. Thc petitioner provided, 
photographs of its grocery that reflect that it is a moderately-sized, full-service market with a substantial stock 
of food items, produce, and meats. Thus, it is evident that the reasonable needs of the petitionkr require its 
grocery employees to.perform numerous non-managerial and nbn-esecutive tasks such as placing oiders for 
goods, answering questions about merchandise froni customers. tracking the petitioner's inventory. managing, 
a checking account and paying bills. answering the telephone. receivitlg deliveries, stocking shelves. 
conducting sales transactions using a cash register, and providing custodial services. l'he petitioner states that 
it employs six employees in addition to the beneficiary to operate thk grocery, includitlg a manager. tuo 
butchers, a supervisor. a box boy, and a cook. The manager's duties are to "[mlanage day-to-day operjtion hf 
[the grocery.]" The- butchers' duties are litiiited t& acting as butchers. The supervisor's duties are to 
"[slupervise [the] grocery" and to act as a cashier. The box boy is responsible for bagging groceries. and the 
cook's duties are limited to cooking.. 
The petitioner provided documentation of its payroll, including the hourly.or weekly wages,of its emplojees. 
The petitioner further suhrnitted its California Form DE-6, Quarterly Wage and Withholditig Report. for the 
fbuith quarter of.2003 that indicates the amount that each of the petitioner's employees were paid during the 
tliree-month period.' Ilsing these docu~nents in tandem. the AAO can calculate the ,approximate number of 
hours per week each etnploy works. The manager works an average of 32 hours per week. The butchers each 
work approximately 30 hours per week. The supervisor works an average of 29: hours per week; .The 
petitioner has indicated that the bos boy and cook are both part time employees. 
The petitioner has not indicated the hours that its grocery is open for business. For the sake of analysis. it is 
assumed that it is open froni 9:OOAM to 9:OOPM Monday through Saturday, arid 10:OOAM to 6:OOPM on 
Sunday. Thus, the petitioner's grocery requires staff for 80 hours per week. The only employee chaqed with 
serving as a cashier is the supervisor. As he only works 29,hours per week. it is evident that the petitioner 
requires other employees to serve as cashiers. It is assiimcd that the rnariager serves as a cashier during his 37 
Page 9 
hours per week, yet 19 hours are left unaccounted for. The duties of the butchers, boxboy. and cook clearly 
do not involve handling money or conducting sales. thus it is assumed that .the beneficiary .serves as a cashier 
in the grocer)' for a inininurn of 19 hours per week.. Many of the abbve-listed tasks are nbt accounted for. 
such as stocking shelvcs. receiving deliveries. paying bills. and tracking inventory.. Whilc it is Leasonable to 
assume that the beneficiary's subordinates share in these duties. it appears that the beneficiary must also 
perform some of these tasks to meet the petitioner's requirements. ~iven the petitioner's current stafling. in 
light of the reasonable needs of its business operations, it is evident that the beneficiary devotes substantial 
portions of his time to non-qualifying duties. An e~nployee who primarily performs the tasks nece,ssary to 
produce. a product or to provide services is not considered to be employed in a managerial or cxetutive 
capacity. ilkcrtter qf Church Scienfology hter)mtionnl. 19 I&N Dec. 593. 604 (Comm. 1988). The petitioner 
has failed to show that these non-managerial and non-esecutive tasks do t!ot constitute the majority of the 
~benefickry's time. See 8 C.F.R. Ej 214.2(1)(3)(ii). 
Further. the petitioner has not established that tlie beneficiary's subordinates ~ncludc supervisors. 
professionals. or managers. Although the beneficiary is not required to supervise personnel. if ~t is claimed 
that his duties lnvolvc supervising ernployees, the petitioner must establish that the subordinate employees are 
supervisory. professional, or managerial. See § 1 Ol(a)(44)(A)(li) of the Act. 
In evaluating whether the beneficiary manages professional en~ployees. the AAO bust evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the ficld of endeavor. 
Section I0 l(aI(32) of the Act. 8 IJ .S.C. $ 1 10 1 (a)(32), states that "[tlhe term profession shall includc but not 
be limited to architects. engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools. colleges. academies. or seminaries." The Lerm "profession" contemplates knuwledge or learning. 11ot . 
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. Af~rrter qf.%u, 19 l&N Dec. 8 17 (Comm, 1988); ~tlnrrer qf Li~g; 13 I&N Dec. 35 (R.c.. 19$8): 
Muner of.Yhin, l l I&N Dec. 686 (U.D. 1966). 
Therefore. the AAO must focus on the level of education required by the position. rather tha~; 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 abovc. In the instant case. the.petitionerls staff who work in the grocery do not have college degrees. 
thus they are not deemed professionals. The petitioner provides that it employs a. purchasing manager for its 
computer hardware division who completed a professional diploma in computer applications. Yet. the duties 
of the purchasing manager consist of purchasing and day-to-day fi~nctions. and..the petitioncr has failed to 
establish that a degree in computer applicatior~s is in fact required for the position. Thus. the ;urchasing 
malager has not been shown to be a professional. 
, ' 
Nor has the petitioner clearly shown that any of the ernployees supervise subordinate staff niembcrs or 
manage s clearly defined tlepai-tment or function of the petitiuner. such that thcy. could he classiticd 
managers or supervisors. While two of the beneficiary's subordinates have ~nanagerial titles. and one has.thc 
title "supervisor." the petitioner has failed to adequately explain their tasks such to establish that they are it1 
faci managers or a supenisor. 'The actual duties themselves reveal the true nature of the emplo)!nent. Ft.tlin 
. . 
- --- 
Page 10 
Rro~ Co . Ltd r Sa\~u, 724 F. Supp. 1 103. 1 108 (E.D N.Y. 1989). cflci. 905 F.2d 4 1 (2d Cir 1990). Further. 
as discr~ssed above. tlie reasonable needs of the petitloner suggest that the manager of the grocery and the 
supervisor ~nvest the major~ty of the~r tlrne acting as cashiers and performing routine, non-managerial tasks. 
Thus. the petltroner has not shown that the beneficiary's subordinate employees are supcrvisory. profess~onal, 
or mariager~al. as rcqu~red by scctlon IOl(a)(44)(A)(li) of the Act. 
The director stated that "[slince the purchasing manager. sales manager and food retail market manager do not 
have ally professional worker[s] under their supe~ision, they are not performing duties of [a] manager as 
defined in 8 C.F R. [$I 214.2(l)(ii)(B)." ?'he beneficiary's subordinates are not required to superllse 
professiorials in order to be considered managers. 'The director's statement of law In this regard will be 
wrthdrawn. Yet, to establish that one of the beneficiary's subord~nates is a manager. the petitioner must 
clearly define the functron managed and show that the employee is primar~ly engaged with managerial tasks. 
A managerial title. by itself. is insufticient. In the present matter. the petitioner has failed to show that any of 
the benefic~ary's subordinates are managers. 
Thk petitioner stated that it hired additional elnployees after thc date of filing. tiowever. the pktitiiner must 
establish eligibility at the time of filing the nonimrnigrant visa petition. A visa petition may not bc appro\ikd 
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Molter ef 
Micheliil Tire C'orp.. 17 I&N Dec. 248 (Reg. Conim. 1978). The fact that the petitioner hired a sales rnanager 
and shipping clerk for its computer hirdware division is not probative of the petitioner's eligibility as of the 
filing date. 
Counsel clai~iis that the beneficiary is a function manager. The term "function &snigeri' applies generally 
when a beneficiary does not supervise or control the work of a subordinate staff but instead is prlri~arily 
responsible for managing an "essential function" within the organization. See section I Ol(a)(44)(A)(ii) of the 
Act. 8 U.S.C. 3 1 10 1 (a)(34)(A)(ii). If a petitioner claims that the beneficiary is rnanag~ng an essential 
fi~nction, the petitioner must identify the function with specificity. articulate the essential nature of thc 
function. and establish the proportion of'the beneficiary's daily duties attributed to managing the essential 
function. .In addition, the petitioner must provide a ,comprehensive and detailed description of the 
beneficiary's daily duties demonstrating that the beneficiary' manages the function rather than performs the 
duties relating to the function. An employee who primarily performs the tasks necessary to produce a product. 
or to providc services is not considered to be employed in a managerial or executive capacity. hl(~rrer of 
Chicrch Scirnlologv Ii~~erncrfionlul. 19 I&N Dec. j93, 604 (Comm. 1988). As discussed above, the petitioner 
has not provided cvidence to show that the beneticiary is primarily engaged with managerial duties such that 
he manages an essential firtiction. 
'I-he record is not persuasive in demonstrating that the beneficiary has been or will bc employcd in a primarily 
managerial or esecutlvc capacity. Thc petitioner indicates that it plans to hire additional managers and 
ernployces in the future. However. once again the petitioner nlust establish eligibility at tlie rirne of filing thc 
nonimmigrant visa petition. A visa petitio~i may not be approved at a fi~tlrre date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Mtitter of A4ichelttl Tire C'orp.. 17 I&N Dcc. at 248. 
Again. 8 C.F.R. 8 114.2(1)(3)(v)(C) allows the intended llnited States.operation one year within the date of 
approval of the petition to support an osecutive or managerial position. There is 110 provision in CIS 
Page I I 
regulations that allows for an extension of this one-year period. If the business is not sufficiently operational 
after one year. the petitioner is ineligible by regulation for an extension. In the Instant matter. the petitioner 
has not shown that it,has reached the point that it can employ the beneficiary in a predominantly managerial 
or executive position! 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily n~anaper~al 
or esecutlve capacity. as required by 8 C.F.R. fj 214.2(1)(3)(ii). For this reash. the appeal will be dism~ssed. 
Beyond the dec~sion of the director. the petitioner has not established that it has a qualifying relationsh~p with 
the beneficiary's foreign employer as required by 8 C F.R. 1) 214.2(1)(1)(ii)(~): as the petitioner has failcd to 
establish that the foreign entity is a qualifying organization engaged in the regular, systematic. arid continuous 
provis~on of goods andlor services pursuant to 8 C.F.R. ff 214.2(1)(l)(i1)(H). The regulat~on at 8 C F.R 
5 214.2(l)(ii)(G)(2) reflects that. in order for an entity to be considered a qualifying organization. the 
petitioner must show that it: 
is or will be doing business (engaging in international trade is not required) as an ernployer in 
the United ~tAtes arid at least one other country directly or through a parent. branch, affiliate. 
or subsidiary for the durat~on of the alien's stay in the United States as an intraeompany 
transferee . . . . 
The regulation at 8 C.F.R. fj 2 14.2(l)(ii)(H) defines the term "doing business" as: 
[TJhe resular, systematic. and continuous provision of goods and/or services by a qimal~f>ing 
organizatron and does not include the mere presence of an agent or office of the qualify~ng 
I 
orgat~ization in the United States and abroad. 
The regulation at 8 CIF.R. 5 214.2(1)(14)(ii)(A) requires the petitioner to submit "[e]vidcncc that the linited 
Slates and foreign enhies are still qilalifying organizations." The petitioner provided documentation of the 
foreig;, entity's business activity before and up to Januay 7;2003. Yet. the petition was filed approximately 
ten months later on October 28, 2003. Thus. the petitioner's docunlents do not serve as sufficient evidence 
that the foreign entity' was engaged in "the regular. systematic. and continuous provision of' goods andlor 
services" throughout 2003, including the date the petition was filed. .Ye; 8'c.F.~. $ 214.2(1)(ii)(H). Thus. the 
petitioner has failed. to show that the foreign entity is a qualifying organization. See' 8 C.F.R. 
9 2 1,1.2sI)(ii)(G)(Z). Accordingly, the petitioner has not established that it hiis a qualifying relationship with 
the foreign entity. .Tee 8 C.F.R. 3 214.2(1)(14)(ii)(A). For this additional reason. the petition may nct be 
approved. 
Also heydnd the deciqion of the director, the petitioner has not shown that it has been doing business in thc 
United Siatcs for.the previous year as required by 8 C.F.R. @ 214.2(1)(14~ii)(B). The petitioner submnitted 
docurnentation to show that it purchased its grocery on August.25. 2003. The petitioner further provided that 
it began its computer hardware division in September 2003. 'l'he petitioner's Forms W-4 were, executed on 
August 25. 2003. suggesting that the beneficiary was the sole employee until that date. The record contains 
.no c!eat. documentation of business activity prior to July 2003. Thus. the petitioner has Sailed to show that it 
, . 
Page 12 
was doing busi~iess from October 2002 to July 2003, or nine months out of the year prior to filing the petition 
For this additional reason. the petition :nay not be approved. 
An appl~cation or petition that fails to comply with the technical requirements of the law may be denled by 
the AAO even if the Service Center does not ~dcntify all of the grounds for denial in the ~nitlal decision Scr 
Sperlcer fiiterpr~ses, Ittc v Uuited  state^. 229 F Supp. 2d 1025. 1043 (E D Cal. 100 1 ). om. 345 I- 3d 683 
(9th Clr. 2003): see ;rl~o Dor v INS, 891 F.1d 997. 1002 n. 9 (2d Clr. 1989)(noting that the AAO rcvle\ks 
appeals on a de novo basis). 
In visa pet~tion proceedings, the burden of proving eligibility for tlie benefit sought remains entirely with the 
petitioner. Sectlon 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. Accordinglj, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.