dismissed L-1A Case: Health Food

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
ldentifjring data deleted 
Prevent clearly unwarranted 
 U. S. citizenship 
invasim of personal privacj 
 and Immigration 
File: EAC 08 059 50859 Office: VERMONT SERVICE CENTER Date: MAR 0 4 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. kj 103.5(a)(l)(i). 
"vb* 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
EAC 08 059 50859 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of the beneficiary as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 110l'(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of Texas and is allegedly a health food manufacturer and distributor. The beneficiary was 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 stay. 
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 to the petitioner asserts that the director 
erred and that the beneficiary's duties will be primarily those of a manager or an executive. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(a)(lS)(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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher 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. 
EAC 08 059 50859 
Page 3 
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 primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 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 
(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 lOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
EAC 08 059 50859 
Page 4 
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 petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under section 101 (a)(44)(B) of 
the Act. Given the lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary 
will be employed as a manager or an executive and will consider both classifications. 
The petitioner describes the beneficiary's proposed duties in the United States in a letter dated December 19, 
2007 as follows: 
[The beneficiary] functions as General Director in the U.S. involve [sic] representing the 
company in the media; establishing, maintaining and setting the company's goals and 
objectives; overseeing marketing, product development, production and finance, and 
customer service operations; supervising management personnel; approval all financial 
obligations; seeking business opportunities and strategic alliances with other companies and 
organizations; planning, developing, and establishing policies and objectives of business 
organization in accordance with board directives and company charter; directing and 
coordinating financial programs to provide funding for new or continuing operations in order 
to maximize return on investments, and increase productivity; overseeing the company's 
business plan; hire and supervise a Marketing Analyst; negotiate credit lines with key 
suppliers; and procuring financing required to operate. 
In addition to the beneficiary, the petitioner claims to employ a marketing analyst. The petitioner describes 
the duties of the marketing analyst in the December 19,2007 letter as follows: 
Coordinate product presentations with customers across country. 
Develop sales promotions and present them to the Director for approval. 
Identify market trends and suggest actions that have a positive impact in the business 
growth. 
Provide assistance to customers on product orders payment and shipment. 
The petitioner also submitted the resume of the current marketing analyst. In the resume, the marketing 
analyst claims to be studying marketing at the University of Texas at San Antonio and to have most recently 
worked as an "administrative assistant" for a different employer. It does not appear from the resume that the 
EAC 08 059 50859 
Page 5 
marketing analyst has graduated from a university. 
Furthermore, the petitioner claims to have engaged a variety of professional service providers to assist the 
beneficiary in the operation of the business. For example, the petitioner claims to have engaged the services 
of an importlexport broker, a logistics company to pack and ship goods, lawyers, a customer call center, a 
staffing agency, and an accountant. 
On January 4, 2008, the director requested additional evidence. The director requested, inter alia, evidence 
that the beneficiary's subordinate workers are supervisory, managerial, or professional in nature. 
In response, counsel argues that the beneficiary's claimed supervision of both the single subordinate employee 
and the various "independent contractors" and service providers constitutes the supervision and control of 
managerial and professional employees. Counsel asserts in a letter dated February 8, 2008 that the 
beneficiary is responsible for the "coordination and supervision of professionals and managers in different 
areas such as financial, office professionals, accounting and tax, customer service, hiring, training and 
promotions, information technology (website), media promotion, U.S. logistics for product shipping, [and] 
import and export from the manufacturing to the distribution facility in the United States." Counsel Wher 
asserts that the beneficiary "exercises the authority of directing and supervising the performance of all the 
above mentioned functions." 
Counsel also claims that the beneficiary "manages" the distribution and marketing of the business through 95 
non-employee "independent business associates" who agree to sell the petitioning organization's product. 
Although the petitioner submits a copy of its "independent business associate agreement," the record does not 
indicate that the sales associates are required to devote their efforts full-time to the sale of the petitioner's 
goods. In fact, the record does not indicate that the sales associates are required to meet any minimum sales 
quotas. 
The petitioner also submitted an organizational chart for the United States operation. The chart shows the 
beneficiary supervising the marketing analyst and all the independent contractors and service providers. 
Finally, it is noted that the record is devoid of evidence addressing the amount of time the various contractors, 
service providers, and "independent business associates" devote to serving the petitioner. The record is also 
devoid of evidence pertaining to the amount of supervision or control the petitioner exercises over any of 
these intermittent contractors, service providers, and sales associates in the provision of their services. 
On February 27, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties are primarily those of a manager or an executive. 
Counsel argues that the beneficiary will manage various functions and will supervise and control managerial 
and professional employees and independent contractors in her operation of the business. 
Upon review, counsel's assertions are not persuasive. 
EAC 08 059 50859 
Page 6 
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. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. A petitioner may not claim that a 
beneficiary will be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory 
definitions. 
Title 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 U.S. Citizenship and 
Immigration Services (USCIS) regulations that allows for an extension of this one-year period. If the 
beneficiary is not performing qualifying duties within one year of petition approval, the petitioner is ineligible 
by regulation for an extension. In the instant matter, the petitioner has not established that the United States 
operation has reached the point that it can employ the beneficiary in a predominantly managerial or executive 
position. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will set goals, objectives, and policies 
and will "oversee" marketing, product development, production, finance, customer service operations, 
financial programs, and the company's "business plan." The petitioner also claims that the beneficiary will 
supervise all personnel and seek business opportunities and strategic alliances. However, the petitioner does 
not specifically define these goals, objectives, and policies or explain what, exactly, the beneficiary will do to 
"oversee" the operation of the business other than to act as a first-line supervisor of the petitioner's single 
subordinate employee and to retain the intermittent services of a variety of vendors, professional service 
providers, and salespersons. The fact that the petitioner has given the beneficiary a managerial or executive 
title and has prepared a vague job description which includes inflated job duties does not establish that the 
beneficiary will actually perform managerial or executive duties. 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. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 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, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Consequently, it has not been established that the beneficiary will primarily perform qualifying duties in her 
operation of the business as its sole administrative employee and principle owner. It has not been established 
that her ascribed duties, e.g., "overseeing" the various administrative and operational aspects of the business 
and retaining outside service providers to perform certain tasks and to provide professional services, are 
qualifying managerial or executive duties. It has also not been established that the beneficiary will be 
relieved from performing the administrative, operational, and first-line supervisory tasks inherent to her duties 
by the subordinate employee or by the various independent contractors. For example, while the task of 
preparing and packing the products for shipment to customers will allegedly be performed by a vendor called 
World Wide Express, it has not been established that the beneficiary's administration of the provision of this 
EAC 08 059 50859 
Page 7 
service by a third party service provider, e.g., contracting, monitoring, and liaising, constitutes a qualifying 
managerial or executive duty. To the contrary, it appears more likely than not that the beneficiary's 
administration of this product sales business through the engagement of third party service providers and 
commission-based sales agents, as well as the supervision of a single non-professional marketing employee, 
"primarily" constitutes the performance of the tasks necessary to provide a service or to produce a product. 
The tasks inherent to locating third party service providers, contracting with those providers, and worlung 
directly with the providers to provide services to the petitioner are, contrary to the petitioner's assertions, non- 
qualifying administrative or operational tasks necessary to the provision of a service or the production of 
product, and the record does not establish that the beneficiary will be relieved of the need to perform these 
administrative tasks by subordinates. While making policy decisions about outsourcing work to third party 
service providers could involve the performance of managerial or executive duties when the day-to-day 
administration of these contracts has been delegated to subordinates, it has not been established in this matter 
that the beneficiary will, or even could, devote a majority of her time to performing such duties given the 
petitioner's organizational structure or that the type of intermittent contractual relationships described in the 
record would reasonably require oversight by a managerial or executive employee. 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 International, 19 I&N Dec. 593,604 (Cornm. 1 988). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential hction of the organization. 
As asserted in the record, the beneficiary will directly "supervise" a single marketing analyst as well as 
various third party contractors, professional service providers, and independent sales associates in her 
administration of the business. However, the petitioner has failed to establish that any of these relationships 
constitutes the supervision and control of supervisory, managerial, or professional employees. 
First, the petitioner has failed to establish that the market analyst is a supervisory, managerial, or professional 
employee. The market analyst is not described in the organizational chart, or in her job description, as having 
supervisory responsibilities over other employees or contractors. Accordingly, the market analyst is not a 
supervisory or managerial employee. The record is also not persuasive in establishing that the market analyst 
is a "professional" employee. In evaluating whether the beneficiary will manage professional employees, the 
AAO 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. 9 1 101(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 (Cornm. 1988); Matter of Ling, 13 I&N 
Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
In this matter, it does not appear as if the person currently employed as a market analyst has received a 
bachelor's degree. As noted above, the market analyst's resume indicates that she is currently studying 
marketing at the University of Texas at San Antonio. Therefore, it does not appear as if the market analyst 
EAC 08 059 50859 
Page 8 
position is a "professional" position. 
 Furthermore, the record is not persuasive in establishing that a 
bachelor's degree in marketing is necessary to perform the ascribed tasks, e.g., preparing product 
presentations, developing sales promotions, identifying market trends, and providing customer service. As 
the market analyst most recently worked as an administrative assistant and has not yet earned a bachelor's 
degree, the record is not persuasive in establishing that this is a "professional" position, and it appears that the 
beneficiary will be a first-line supervisor of a single non-professional employee. A managerial employee 
must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, 
unless the supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
Second, it has not been established that the beneficiary's claimed "supervision" of various third party 
contractors, professional service providers, and independent sales associates constitutes the supervision and 
control of managerial, supervisory, or professional "employees." The supervision or management of 
independent contractors will not permit a beneficiary to be classified as a managerial employee as a matter of 
law. See section 101 (a)(44)(A)(ii) of the Act; 8 C.F.R. 3 21 4.2(1)(1)(ii)(B)(2). Although the engagement of 
contractors could be relevant in some situations in ascertaining whether beneficiaries will likely be relieved of 
the need to perform certain non-qualifying tasks, the Act is quite clear that only the management of employees 
may be considered a qualifying managerial duty for purposes of this visa classification. Therefore, even if the 
petitioner could establish that the independent contractors are performing professional duties, the beneficiary's 
supervision of such contractors would not constitute a qualifying managerial duty.' 
Equally important, the petitioner has failed to establish that the beneficiary will truly "supervise and control" 
any of the contractors, professional service providers, or independent sales associates. As noted above, it 
appears that the petitioner's engagement of these various companies and individuals is intermittent at best, and 
that their compensation is either fee-for-service or commission-based. It has not been established that the 
beneficiary plays any role in the supervision of the performance of any of the tasks being performed. To the 
contrary, it appears that the petitioner is interested only in the results of the engagement, e.g., the creation of a 
website, the distribution of its products, or the preparation of its tax forms. The mere fact that the beneficiary 
has the authority to engage third party service providers does not establish that she will "supervise and 
control" the provision of these contracted services. Furthermore, it has not been established that the 
beneficiary supervises and controls the independent sales associates. Based on the "independent business 
associate agreement," it appears that these 95 associates are merely sales agents who have agreed to use 
reasonable efforts to sell the petitioner's products. It does not appear as if the beneficiary has any modicum of 
control over the day-to-day manner in which these agents sell the petitioner's product, or not. 
Furthermore, the petitioner has not established that the beneficiary will manage an essential function of the 
organization. The term "function manager" applies generally when a beneficiary does not supervise or 
1 
Counsel cited the Foreign Affairs Manual (FAM) as authority for the proposition that the supervision of 
independent contractors constitutes a qualifying duty for purposes of this visa classification. It must be noted 
that the FAM is not binding upon USCIS. See Avena v. INS, 989 F. Supp. 1 (D.D.C. 1997); Matter of 
Bosuego, 17 I&N 125 (BIA 1979). The FAM provides guidance to employees of the Department of State in 
carrying out their official duties, such as the adjudication of visa applications abroad. The FAM is not 
relevant to this proceeding. 
EAC 08 059 50859 
' Page 9 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 101(a)(44)(A)(ii) of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must furnish a written job offer that clearly describes the duties to be performed in 
managing the essential function, i.e., identify the function with specificity, articulate the essential nature of 
the function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential 
function. See 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary manages the function rather than performs the tasks related to the 
function. 
In this matter, the petitioner has not provided evidence that the beneficiary will manage an essential function. 
The petitioner's vague job description fails to document how the beneficiary's duties will be primarily 
managerial. As explained above, the record fails to establish that the beneficiary will primarily perform 
qualifying managerial duties as a first-line supervisor of a single non-professional employee and as the sole 
administrator of the business. Absent a clear and credible breakdown of the time spent by the beneficiary 
performing her duties, the AAO cannot determine what proportion of her duties will be managerial, nor can it 
deduce whether the beneficiary will primarily perform the duties of a hction manager. See IKEA US, Inc. v. 
US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity. 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. 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. 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 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-day 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 from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis. 
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line 
supervisor of a single employee and will perform the tasks necessary to produce a product or to provide a 
service. Therefore, the petitioner has not established that the beneficiary will be employed primarily in an 
executive capacity. 
Counsel cites National Hand Tool Cop. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989), and Mars 
Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size 
of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or 
EAC 08 059 50859 
Page 10 
executive capacity. First, the AAO notes that counsel has furnished no evidence to establish that the facts of 
the instant petition are analogous to those in National Hand Tool Corp., where the Fifth Circuit Court of 
Appeals decided in favor of the legacy Immigration and Naturalization Service (INS), or Mars Jewelers, Inc., 
where the district court found in favor of the plaintiff. With respect to Mars Jewelers, the AAO is not bound 
to follow the published decision of a United States district court in matters arising within even the same 
district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district 
judge's decision will be given due consideration when it is properly before the AAO, the analysis does not 
have to be followed as a matter of law. Id. at 719. 
In both National Hand Tool Corp. and Mars Jewelers, Inc., the courts emphasized that the former INS should 
not place undue emphasis on the size of a petitioner's business operations in its review of an alien's claimed 
managerial or executive capacity. The AAO has long interpreted the regulations and statute to prohibit 
discrimination against small or medium-size businesses. However, consistent with both the statute and the 
holding of National Hand Tool Corp., the AAO has required the petitioner to establish that the beneficiary's 
position consists of primarily managerial or executive duties and that the petitioner will have sufficient 
personnel to relieve the beneficiary from having to primarily perform operational andlor administrative tasks. 
Like the court in National Hand Tool Corp., we emphasize that our holding is based on the conclusion that 
the petitioner has failed to establish that the beneficiary will primarily perform managerial or executive 
duties; our decision does not rest on the size of the petitioning entity. 889 F.2d at 1472, n.5. 
Furthermore, it is important to note that, in reviewing the relevance of the number of employees a petitioner 
has, federal courts have generally agreed that USCIS "may properly consider an organization's small size as 
one factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. 
U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9' Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 41,42 (2d 
Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). As such, it is 
appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non- 
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See, e.g. Systronics COT. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).~ 
2 
It is noted that counsel cites several unpublished AAO opinions in support of his contention that the 
beneficiary will be primarily employed as an executive or manager. In those decisions, the AAO recognized 
that employees of small businesses could be employed primarily as managers or executives provided they are 
primarily performing executive or managerial duties. However, counsel's reliance on these decisions is 
misplaced. First, counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. Second, while 8 C.F.R. 9 103.3(c) provides that AAO 
precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. Third, as explained above, the petitioner has not established that the 
beneficiary will primarily be employed in an executive or managerial capacity. This is paramount to the 
analysis, and a beneficiary may not be classified as a manager or an executive if he or she will not primarily 
perform managerial or executive duties regardless of the number of people employed by the petitioner. 
EAC 08 059 50859 
' Page 11 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary will be 
"employed" by the petitioner, or that she will be an "employee" of the petitioner, as required by the Act and 
regulations. 
The regulation at 8 C.F.R. § 214.2(1)(3)(ii) requires that the petitioner establish that the beneficiary will be 
primarily "employed" in the United States as an executive, managerial, or specialized knowledge capacity. 
Furthermore, section 101(a)(44) of the Act, 8 U.S.C. 9 1 101(a)(44), defines both managerial and executive 
capacity as an assignment within an organization in which an "employee" performs certain enumerated qualifying 
duties. It is noted that "employer," "employee," and "employed" are not specifically defined for purposes of the 
Act even though these terms are used repeatedly in the context of addressing the L-1 classification. Section 
10 1 (a)(15)(L), 8 U. S .C. 8 1 10 1 (a)(15)(L), requires beneficiaries to have been "employed" abroad and to render 
services to the same "employer" in the United States. Neither the legacy Immigration and Naturalization Service 
nor USCIS has defined the terms "employee," "employer," or "employed" by regulation for purposes of the L- 
1 classification. See, e.g., 8 C.F.R. § 204.5 and 8 C.F.R. 5 214.2(1). Therefore, for purposes of the L-1 
classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly define the 
term "employee," courts should conclude "that Congress intended to describe the conventional master-servant 
relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. Darden, 503 
U.S. 3 18, 322-323 (1 992) (hereinafter "Darden") (quoting Community for Creative Non- Violence v. Reid, 490 
U.S. 730 (1989)). That definition is as follows: 
In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which the 
product is accomplished. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumentalities and tools; the location of the work; the duration 
of the relationship between the parties; whether the hiring party has the right to assign 
additional projects to the hired party; the extent of the hired party's discretion over when and 
how long to work; the method of payment; the hired party's role in hiring and paying 
assistants; whether the work is part of the regular business of the hiring party; whether the 
hiring party is in business; the provision of employee benefits; and the tax treatment of the 
hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the common- 
law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the 
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 
U.S. at 324 (quoting NLRB v. United Ins. Co. ofAmerica, 390 U.S. 254,258 (1968)). 
-- - -- 
Therefore, as the petitioner has not established this essential element, these unpublished decisions would be 
irrelevant even if binding or analogous. 
EAC 08 059 50859 
Page 12 
In considering whether or not one is an "employee," USCIS must focus on the common-law touchstone of 
control. Clackamas, 538 U.S. at 450. Factors indicating that a worker is an "employee" of an "employer" are 
clearly delineated in both the Darden and Clackamas decisions. 503 U.S. at 323-324; see also Restatement 
(Second) of Agency 5 220(2) (1958). Such indicia of control include when, where, and how a worker 
performs the job; the continuity of the worker's relationship with the employer; the tax treatment of the 
worker; the provision of employee benefits; and whether the work performed by the worker is part of the 
employer's regular business. See Clackamas, 538 U.S. at 448-449; cJ: New Compliance Manual, Equal 
Employment Opportunity Commission, 5 2-III(A)(l), (EEOC 2006) (adopting a materially identical test and 
indicating that said test was based on the Darden decision). 
It is important to note that the factors listed in Darden and Clackamas are not exhaustive and must be 
evaluated on a case-by-case basis. Other aspects of the relationship between the parties may affect the 
determination of whether an employer-employee relationship exists. Furthermore, not all or even a majority 
of the listed criteria need be met; however, the fact finder must weigh and compare a combination of the 
factors in analyzing the facts of each individual case. The determination must be based on all of the 
circumstances in the relationship between the parties, regardless of whether the parties refer to it as an 
employee or as an independent contractor relationship. See Clackamas, 538 U.S. at 448-449; New 
Compliance Manual at 5 2-III(A)(l). 
Within the context of L-1 nonimmigrant petitions, when a worker is also a partner, officer, member of a board 
of directors, or a major shareholder, as is the case here, the worker may only be defmed as an "employee" if 
he or she is subject to the organization's "control." See Clackamas, 538 U.S. at 449-450; see also New 
Compliance Manual at 3 2-III(A)(l)(d). Factors to be addressed in determining whether a worker, such as the 
beneficiary is this matter, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the organization. 
Whether the parties intended that the individual be an employee, as expressed in 
written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Again, it is important to note that this list need not be exhaustive and such questions cannot be decided in 
every case by a "shorthand formula or magic phrase." Id. at 450 (citing Darden, 503 U.S. at 324). Moreover, 
in applying the above test, the mere fact that a "person has a particular title - such as partner, director, or vice 
EAC 08 059 50859 
Page 13 
president - should not necessarily be used to determine whether he or she is an employee or a proprietor." 
Clackamas, 538 U.S. at 450; cf: Matter of Church Scientology International, 19 I&N Dec. at 604 (stating that 
a job title alone is not determinative of whether one is employed in an executive or managerial capacity). 
Likewise, the "mere existence of a document styled 'employment agreement"' shall not lead inexorably to the 
conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, as was true in applying 
common-law rules to the independent-contractor-versus-employee issue confronted in Darden, the answer to 
whether a shareholder-director is an employee depends on 'all of the incidents of the relationship . . . with no 
one factor being decisive."' Id. at 451 (quoting Darden, 503 U.S. at 324). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the beneficiary 
will be an "employee" of the petitioner in the United States. The beneficiary appears to be the 99.99% owner 
of the foreign employer, a Mexican business organization, which, in turn, is the 100% owner of the 
petitioner. While the beneficiary claims to be "employed" by the petitioner, the beneficiary allegedly draws a 
portion of her salary from the Mexican business. The beneficiary also appears to be an officer of the 
petitioner. The petitioner did not submit an agreement, employment contract, or any other document 
describing the beneficiary's claimed employment relationship with the petitioner. In view of the above, it 
appears that the beneficiary will be a proprietor of this business and will not be an "employee" as defmed 
above. It has not been established that the beneficiary will be "controlled" by the petitioner or that the 
beneficiary's employment could be terminated. To the contrary, the beneficiary is the petitioner for all 
practical purposes. She will control the organization; she cannot be fired; she will report to no one; she will 
set the rules governing her work; and she will share in all profits and losses. Therefore, based on the tests 
outlined above, the petitioner has not established that the beneficiary will be "employed" as an "employee," 
and the petition may not be approved for that reason. 
Accordingly, the petitioner has failed to establish that the beneficiary will be "employed" by the petitioner or 
that she will be an "employee" of the petitioner as required by the Act and regulations. 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was "employed" 
abroad for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. §§ 
214.2(1)(3)(iii)-(iv). The petitioner failed to specifically describe the beneficiary's job duties abroad. 
Specifics are clearly an important indication of whether a beneficiary's duties were 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, afd, 905 F.2d 41. Furthermore, the petitioner 
failed to describe the duties of the beneficiary's purported subordinates abroad, if any. Absent detailed 
descriptions of the duties of both the beneficiary and her purported subordinates, it is impossible for USCIS to 
discern whether the beneficiary was "primarily" engaged in performing managerial or executive duties 
abroad. See sections 101 (a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 
19 I&N Dec. at 604. 
Finally, and for the same reasons given above, the record is not persuasive in establishing that the beneficiary 
was an "employee" of the foreign entity, even if it was established that she performed qualifying duties. As 
noted above, the beneficiary is a 99.99% owner of the foreign entity. The record is devoid of evidence 
establishing that she was "controlled" by anyone but herself in the performance of her duties. Consequently, 
it does not appear that the beneficiary was "employed" abroad as an "employee." 
EAC 08 059 50859 
Page 14 
Accordingly, as the petitioner failed to establish that the beneficiary was "employed" abroad for at least one 
continuous year as an "employee" of the foreign entity in a position that was managerial or executive in 
nature, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 
 214.2(1)(3)(vii). 
In this matter, and as noted above, the petitioner claims to be 100% owned and controlled by a Mexican 
business organization which is 99.99% owned and controlled by the beneficiary. As the purported owner of 
the petitioning organization, the petitioner is obligated to establish that the beneficiary's services will be used 
for a temporary period and that she will be transferred to an assignment abroad upon completion of the 
assignment. Id. However, the record is devoid of any evidence establishing that the beneficiary's services 
will be used temporarily. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
The previous approval of an L-IA petition does not preclude USCIS fi-om denying an extension based on a 
reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, USCIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 291 of the Act, 8 U.S.C. § 1361. 
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), afd, 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. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.