dismissed L-1A Case: Home Furnishings And Garments

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm.,A3042 
Washington, DC 20529 . 
~dililntitjiing ., .:~642hMI iu 
prevent clearly unwarranted 
6avmbn of personal privacy 
U.S. Citizenship 
and Immigration 
Office: VERMONT SERVICE CENTER Date: &N 1 6 2005 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the , 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 L(a)( lS)(L) 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the pfficr that ~riginillly dec~ded your case. Any further inquiry must be made to that 
office. - 
fRobert ~.'~lemann, Director 
Admtnish-ative Appeals Office 
DISCUSSILON: 'The nonimmigrant visa petition was denied by the Director, Vermont Senice 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be d~smissed. 
The petitioner, endeavors to class~fy the beneficiary as a manager or 
execut~ve pursuant to sectlon 10 1 (a)(lS)(L) of the Imm~grat~on and Nahonality Act (the Act), 8 
U.S C. 5 1 IOl(a)(IS)(L). The petitioner claimed to be a branch oflocated in India 
and 1s engaged m the business of marketing home fumish~ngs and garments. The inihal petition 
was approved fc~r one year to allow the pet~tioner to open a new office. It seeks to extend the 
petition's validity and the beneficiary's stay for three years as the U.S. entity's vice president. 
The petttioner was established In February 2000. 
On March 6, 2003, the director 'denied the petition because the petitioner failed to establish that 
the beneficiary has been and will be employed in a primarily executive or managerial capacity. 
Counsel submits additional evidence in alpport of the appeal. 
. 8, 
On appeal, the petitioner's counsel mbrnitted a lengthy brief describing the'beneficiary's duties 
and qualifications as an L-IA manager or executive and claims, "the position is in a 
managerial/executiv capacity."' 
To establish L-1 'eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain crileria. ~~ccikcall~, within three years preceding the beneficiary's application for 
admission into the United States, a qualifying organization must have employed the beneficiary in 
a qualifying managerial or executive capacity, or in a specialized howledge capacity, for one 
continuous year. Furthermore, tlie 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 ina 
managerial, executive, or specialized knowledge capacity. . . 
In relevant part, the regulatrons at 8 C.F.K. 5 214.2(1)(14)(3) state that an indlvldual petitlon filed 
on Form 1-1 29 shall be accompanied by: 
(1) Evrdence that the petlt~oner and the organtzatlon wh~ch employed or w~ll 
employ ?he alren are qualifjl~ng organizat~ons as defined In paragraph (I)(l)(li)(G) 
of thls sect~on; 
iii) Ev~tnre that the allen will be employed in an executive, managerial, or 
speclallzed knowledge rapacity, including a detailed description of the services 
to be performed. 
Further, pursuant to 8 C.F.R. 214.2(1)(14)(ii), if the petitioner is filing a petition to extend the 
beneficiary's stay for L-l classification, the regulation requires: . 
1 Counsel requests that the dlrector treat thls matter as a motton to reopen and reconsider; 
however, the director decllned to treat the appeal as a motion and forwarded the appeal to the 
Admlnlstrative Appeals Office (AAO) for review. 
A visa pet~t~on under section 101 (a)(15)(L) which involved the openlng of a new office 
may be extended by fillng a new Form 1-129. accompanied by the following: 
(A) Evldence that the United States and foreign entitles are still qualifying 
organizal~ons as defined m paragraph (1)(1)(11)(G) of this secbon; 
(B) E\r:cIence that the Un~ted States entity has been doing busmess as defined 
In paragraph (I)(l)(il)(H) of lh~s section for the prevlous year; 
(C) A statement of the duties performed by the beneficiary for the previous 
year and the duties the beneficiary will perfom 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) Evldence of the financtal status of the United States operation. 
The ~ssue in thls proceeding is whether the beneficiary has been and will be primarily performing 
executive or managerial duties for the United States entity. Section 101(a)(44)(A) of the Act, 8 
U.S.C. $ 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignmen1 within an organization in which the 
employee pnmarily- 
(i.) manages the organizat~on, or a department, subdlvtsion, funct~on, or 
component of the organii.ation; 
(ii.) supervises and controls the work of other supervisory, professional, or 
' 
managerial en~ployees, 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 
authori'~ to hire and fire or recommend those as well as other personnel actions (such 
as promotion and leave authorization), or if no other empIoyee 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 en~ployee has authority. A first-line supervisor IS not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
dutles unless the employees supervised are professional. 
'Section 101(a)(44)(B) of the Act, 8 U.S.C. 4 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarrly- 
(i) directs the management of the .organization or a major component or 
hnction 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 hm higher level 
executives, the board of directors, or stockholders of the organization. 
In a June 10, 2002 letter submitted wlth the Form I- 129, the petitioner described the beneficiary's 
proposed U.S. duties as the following: 
[The heneficlary] will contlnue to be responsible for overseeing, coordinating and 
managrng the dally operations of [the petlt~oner] m the United States. This w~ll also 
include managng and overseeing the dally activities of our retatl store . . . and 
negotiating prod~rction contracts with U.S. buyers to manufacture men's, ladies' and 
ch~ldren's gzrments in factories in India managed or associated to [the foreign entity]. 
[Ihe beneficiary] will manage and oversee daily contacts with buyers, coordinate 
deliver), and garment production, as weil as establish price, quality and quantities. She 
.will oversee delivery arrangements and sales orders made by U.S. buyers and verify that 
orders are properly executed in India. [The beneficiary] will discuss and sign contracts 
with U.S. buyers, establish prices and procedures to meet garments' qualities . . .,She will 
handle the logistics of our U.S. operations, seeking new business deals. to expand 
operations. Th!s will include developing and implementing marketing plans and 
strategies for home furnishings and garments manufactured in India and sold to 
buyers/customers in the U.S. 
!.TIE beneficiary] will continue possessing wide, decision-making power in negotiating. 
garment ,production contracts with clients. She will determine wholesale' prices, 
quantities, delivery dates and quality controls, following [the foreign entity's] policies. 
[The beneficiary] will direct, coordinate and develop marketing plans and strategies for 
[the,petitioner]. She will review, identify and approve new business opportunities for our 
com~d.!r. [The beneficiary] will establish corporate policy, following guidelines from, the 
parent company in India. 
Specifically, [the beneficiary] will continue assume the following manageriaVexecutive 
duties: 
1. Ov'eralI management 01' [the petitioner]. 
2. Negotiate contracts wit11 U.S. buyers to manufacture men's, ladies' and 'children's 
garments in Indla. 
3. Plan and develop internal controls following [the foreign entity's] guidelines. 
4. Oversee and implement marketiGg plans and strategies following [the foreign 
entity's] guidelines, policies and procedures. 
5. Plan, develop and establish business goals for [the petitioner]. 
6. Prepare reports for review by senior management in India as to sales and progress 
achieved In the IJnited States. 
7. Plan, develop and implement control policies regarding company's business 
operations. 
8. identify new clients and garments to be manufactured by [the foreign entity's] 
factones in India. 
9. Train and supervise subordinate staff; and, 
10. Exerc~se discretionary dec~sion-making over the day-today activltles of the 
company. This will include negot~ating contracts, establrshrng office policies and 
coordinat~ng manuf~ct~mng orders in India. 
[The heneficlary] w~ll oversee and coordinate the activities of the Store Manager and 
clerical stibff. She will assign workloads and establish company's monthly and annual 
goals [Shej w111 possess adm~nistratlve responsibi11ty of subord~nates, ~ncludlng the 
author~ty to hire, fire and apply dlsc~plrnary actlons, and promot~ons. [She] wtll report 
directly to the Board of Directors of [the forelgn entity]. 
On October 28, 2002, the drrector requested additional evidence such as the U.S. company's 
organizational chart, a descnptlon of the U S. entity's staff, a detailed description 'of the 
employees' duties, and evidence of the wages paid to these employees. 
In response, in a January 17. 2003 letter, counsel reiterated the beneficiary's proposed U.S. duties 
and subm~tted a U.S. organizat~ona! chart and descriptions of the employees' dut~es. In addition, 
in a December 3, ZQ03 letter, the petitioner further described the beneficiary's duties and added 
the follow~ng fourteen cnurnerated dutles In add~tlon to the ones described in the letter: 
1. Overall management of [the petltloner]. 
2. Intcract with clients and their agents providing them with the necessary 
product ~n formatron. 
3. Maintain a close contact on a weekly basis with [the foreign entity] to make 
sure garments and textiles ordered are shipped according to schedule. 
4. Oversee and implement marketing plans and strategies following [the foreign 
entity's] guidelines, policies and procedures. Plan. develop and establish 
business goals for [the pet~t~oner]. 
5. Provide manufacturing centers with detailed lnfonnation on style, dimension, 
colors and quality of fabrics. 
6. Negotiate fieight ratt:s with freight agents and make sure that the products 
imported Into the U.S. are classified under the right category. 
7. Plan, develop and implement control policies regarding company's business 
operations. 
8. Identify new clients and garments to be manufactured by [the forelgn entity]. 
9. Train and supervise subordinate staff, and, 
10. E.xerc~se discretionary decision-making over the day-to-day activities of the 
company. This ~vill iilclude negotiating contracts, establishing office policies 
and coordinating manufacturing orders in India. 
1 1. Oversee and manage the finance of the U.S. operations. 
12. Make timely payment to suppliers. 
13. Visit clients to finalize orders. 
14. Take major clecrslons with regard to sign~ng contracts on behalf< of [the 
pct~tloner]. 
In addition, the petitioner claimed that the beneficiary will be supervising the activities of a 
merchandising manager and a sales assistant, and she will be managing a function by being 
"solely responsible for managing and overseeing marketing pIans and strategies" for the foreign 
entity's products in the United States. The petitioner claimed that the beneficiary will spend 80 to 
90 percent of her time on managerial functions and 10 percent of her time on nonrnanagerial 
duties. The petitioner provided brief job descriptions for the beneficiary's subordinates and 
evidence of wages paid to the sales assistant during the first two quarters of 2002. 
On March 6, 2003, the director denied the petition because the petitioner failed to establish that 
the beneficiary has been and will be employed in a primarily execut'ive or managerial capacity. 
The director found that the beneficiary will be engaged in the non-managerial, day-to day 
operations involved in producing a product or service, The director' noted that. the petitioner 
- Page 7 
provided insufficient evidence to establish the number of full and part-time employers the U.S. 
company employed at the time of filing. 
On appeal, the petitioner's counsel submitted a lengthy brief describing the beneficiary's duties 
and qualifications as an L-IA manager or executive and claims, "the position is in a 
managerial/executive capacity.". 
The AAO notes tt1a.r. sounsel claims that the beneficiary is engaged in managerial and executive. . 
duties. However, counsel does not clarify whether the beneficiary is claiming to be -primarily 
engaged in managerial' duties under section 101(a)(44)(A) of the Act, or primarily executive 
duties under section 101 (a)(44)(B) of the Act. A beneficiary may not claim to be employed as a 
hybrid "executive/manager" and rely on partial sections of the two statutory ,definitions. . A 
petitioner must establish that a beneficiary meets each of the four criteria set forth in the statutory 
definition for executive and the statutory definition for manager if it is representing the 
beneficiary is both an executive and a manager. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of job duties. See 8 C.F.R. § 214.2(1)(3Xii). On review, the petitioner ' 
has not establishe,d that the beneficiary has been and will be employed in a primarily executive or 
managerial capacity. The beneficialyls described duties are broad and do not elaborate how the 
beneficiary will primarily perform managerial or executive duties. For example, the petitioner 
described the hrneficiary's duties as "[pllan, develop and implement control policies," "oversee 
delivery arrangements and hales orders," "oversee and implement marketing plans," and "[tlrain 
and supervise subordinate staff." However, the .petitioner failed to specify the beneficiary's 
policies, rior did it identify whether the beneficiary would directly be involved in marketing and 
sales duties, or whether she would supervise others t6 do so. Going on record without ,supporting 
documentary evidence is no[, sufficient for purposes of meeting the burden of -proof in these 
proceedings. 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 llifotter qf Treasure CraJ of California, 14 I&N Dec. 190 .(Reg. 
Comm. 1972)). 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 reiteraling the regulations. Fedin Bros. Co., Lfd v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), aff'd, 905 F.3d 41 (2d. Cir. 1990). Without a specific description, the AAO .is unable to 
determine whether the t?eneficiary's.proposed duties will be primarily managerial or executive in 
nature. 
In addition, the petitioner described the beneficiary as being involved in "[i]dentify[ingJ new 
clients and gnr~~cnts to hc: manufactured," "developing and implementing marketing plans and 
strategies," and "interact[ing] with clients and their agents providing them with the necessary 
product inforination." Since the beneficiary will actually be involved in marketing, routine 
customer communication and the development of plans to increase sales, she will be providing' 
the services of the business rather than directing such activities. 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. Maffer of Church Scientology Internalional, 19 
I&N Dee. 593,604 (Cornm. 1988). 
Whether the beneficiary is a managerial or executive employee turns on whether the pet~ttoner 
has sustained its burden of proving that her duties are "primarily" managerial or executive. See 
sectlons 101(a)(44)(A) and (B) of the Act. Here, the pehtloner ind~cated that the beneficiary 
would spend "80-90W of her time performing managerial functions but fails to document how 
much time she would devote to each job duty, as requested by the director. The petihoner 
indicates that her dut~es are pnmarlly managenal, yet the beneficiary's duties include 
adm~n~strat~vc and operational tasks, including the above-mentioned sales and marketing tasks, 
submllting a~td ioiiowmg up orders w~th manufacturing centers, and mak~ng fielght delivery 
arrangements, whlch do not fall under traditional managenal duties as defined In the statute. The 
petitioner's description of the beneficiary's duties is insufficient to establish what proportion of 
the beneficiary's duties is managerial and what proportion is actually non-managerial. See 
Repubhc ~(Transkei v lNL5', 923 F.2d 175, 177 (D.C. Clr. 199 1). 
Although the benef;ciary is not required to supervise personnel, if it is claimed that the 
beneficiary's duties involve supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See 4 1 Ol(a)(44XA)(ii) of 
the A.ct. At the time the petltion was filed in July 2002, the petitioner stated that the beneficiary 
oversees a shi>i~ nttinager who was hired in March 2002 and "clerical staff." When the petitioner 
responded'to the request for evidence in January 2003, it claimed to employ a merchandising 
manager at!d a sales assistant, ufhose duties appear to encompass operating the petitioner's retail 
location. The petitioner's quarterly wage report for thc sccond quarter of 2002 shows only one 
employee, the individual identified as the sales assistant. The record contains no evidence of 
wages paid to the merchandising manager, nor has the petitioner identified any "clerical,staff' by 
name. The petitioner. has not demonstrated that .the sales assistant supervised any employees or 
managd a function of the organization. Since there are no other lower level employees, this 
raises the question of who would be performing the lower level nonmanagerial or nonexecutive 
duties of the company. At most, the beneficiavl appears to be performing the duties of a first-line 
supervisor. A. l-nanagerial or executive employee .must have authority over day-to-day operations 
beyond the level ~ormally vested in a first-line supervisor, unless the supervised employees are 
professionals. See A4c:ffer of Chtrrch Scientology htternational, 19 I&N  kc. 593, 604'(Comm. 
1988). . , 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate posihons 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. 5 1101(a)(32), states that "[tJhe ten 
profmion shall ~nclude but not be llmlted to architects, engmeers, lawyers, physlclans, surgeons, 
and teachers in etamentaly or secondary schools,  college^, academies, or seminaries." The tenn 
"profesyion" contemplates knowledge or learning. not merely skill, of an advanced type in a 
glven field garned by a prolonged course of spcclallzed instruction and study of at least 
baccalaureate level, which is a reallsac prerequisite to entry lnto the particular field of endeavor. 
Maffer ofsea, 19 I&N Dec. 81 7 (Cornrn 1988); A4atter of Lrng, 13 I&N Dec. 35 (R.C. 1968); 
Matter ofshin, I I I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of 
educatron requlred by the posrtton, rather than tk degree held by a subord~nate employee. The 
possession of a bachelor's degree by a subordinate employee does not automatically lead to the 
conclusion that an employee is en~ployed In a professional capac~ty as that term 1s defined above. 
In the instant matter, the petitioner has not, in fact, established that a bachelor's degree is actually 
necessary, for example, to perform the duties of the sales assistant, the beneficiary's only 
subordinate. 
Moreover, a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to an L-1 A. manager or 
executive. As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor 
in determinirig whether an individual is acting in a managerial or executive capacity, Citizenship 
and lmrnigratiou Services (CIS) must take into account the reasonable needs of the organization, 
in light of the overall purpose and stage of development of the organization. To establish that the 
reasonable needs of the organi~ation justify the beneficiary's job duties, the petitioner must 
specifically art;culat'e why those needs are reasonable in light of its overall purpose and stage of 
development. Inlthe 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. ,Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Crafr of 
Cqlfinlia, 14 I&N Dec. 190 (Reg. Cornm. 1972). 
Finally, on appcul, counsel claims that the petitioner decided to hire a hll-time marketing 
manager "who will visit customers in the U.S." However, the petitioner cannot attempt to make a 
deficient petition conform to the requirements by raising new facts to be considered on appeal. 
The petitioner must establish eligibility at the, time. of filing the nonimmigrant visa petition. A 
visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N.Dec. 248 (Reg. ~omm. 
1978). . ' 
After careful cvnsitleration of the evidence, the AAO concludes that the petitioner failed to 
establrsh that the beneficiary has been and will be employed in a primarily executive or 
manngenal capac~ty. For thts reason. the pet~tion may not be approved. 
In vlsa pet~tlon proceedings, the burden of provlng ellg~billty for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U S.C. fj 1361. I-lere, that burden has not 
been met. Accordtngly, the appeal w~ll be d~smissed 
ORDER: The appeal is dismissed.