dismissed L-1A Case: Import/Export

U.S. Dap.rtment of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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FILE: EAC 03 107 5005 1 Office: VERMONT SERVICE CENTER Date: 
IUN 19 2005 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section lOl(a)(lS)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 6 I 10l(a)( I S)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
Robert P. iernann, Director PZ- 
Administrative Appeals Office 
EAC 03 107 5005 1 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner,, endeavors to classify the beneficiary as a manager 
or executive pursuant to section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 1 lOl(a)(l5)(L). The petitioner claims to be a subsidiary of located 
in India and operates an import, resale, and wholesale business. The initial petition was approved 
for one year to allow the petitioner to open a new ofice. It seeks to extend the petition's validity 
and the beneficiary's stay for three years as the U.S, entity's manager. The petitioner claims that 
it was established in 2001 and has one employee. 
On July 3 1,2003, 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. 
On appeal, the petitioner's counsel submits a brief and claims that the beneficiary is "only 
performing managerial or executive duties." 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, 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 knowledge capacity, for one 
continuous year. Furthermore, 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 lcnowledge capacity. 
In relevant part, the regulations at 8 C.F.R. 8 214.2(1)(14)(3) state that an individual petition filed 
on Form I- 129 shall be accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph (I)(I)(iiXG) 
of this section; 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
speciaIized knowledge capacity, including a detailed description of the services 
to be performed. 
Further, pursuant to 8 C.F.R. 5 214.2(1)(14)(ii), if the petitioner is filing a petition to extend the 
beneficiary's stay for L-1 classification, the regulation requires: 
A visa petition under section 101(a)(15)(L) 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 (I)(l)(ii)(G) of this section; 
EAC 03 107 5005 1 
Page 3 
(B) Evidence that the United States entity has been doing business as defined 
in paragraph (I)(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 issue in this proceeding is whether the beneficiary has been and will be primarily performing 
executive or managerial duties for the United States entity. Section 101(a)(#)(A) of the Act, 
8 U.S.C. ($ 1 lOl(a)(#)(A), provides: 
The term "managerial capacity" means 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 welt 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. 3 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(i) directs the management of the organization or a major component or 
function of the organization; 
EAC 03 107 5005 1 
Page 4 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In a February 10, 2003 supporting letter appended to the Form 1-129, the petitioner described the 
beneficiary's U.S. duties as: 
[The beneficiary] has been abte to place substantial orders for products from [the 
foreign entity] and is able to sell the products on consignment basis to U.S. 
Companies. However, with the US Economic recession, the Company needs a 
little more time to realize its target potentials to the maximum. 
The letter further stated that the petitioner needs the beneficiary's services because of "his 
profound lcnowledge and understanding of the company, nature of the business and export 
expertise" which can "help build the future infrastructure" for the U.S. company. 
On the Form 1-129, the petitioner indicated that the beneficiary will "direct foreign sales and 
services, arrange shipping details, and make import arrangements." Counsel indicated in his cover 
letter that the petitioner had hired one employee. 
In a request for additional evidence dated March 26, 2003, the director requested that the 
petitioner submit evidence of the following: I) a description of the duties performed by the 
beneficiary; 2) the staffing of the U.S. company indicating the number of employees and the 
duties performed by each; and, 3) personnel structure of the company. 
In a letter dated June 16, 2003, counsel for the petitioner described the beneficiary's U.S. duties 
as: 
The beneficiary's duties and responsibilities are essentially managerial and 
executive in nature. Since the commencement of his employment with [the 
petitioner], he has directed foreign sales & service outlets of [the foreign entity] 
in the U.S[.], negotiated contracts with foreign sales & distnbution centers in the 
U.S. to establish outlets. In the last year, the Company has hired two additional 
employees who takes care of the day-to-day activities of the Company. [The 
beneficiary] [dlirects the clerical staff in expediting export correspondence, bid 
requests & credit collections. Being the sole proprietor of the parent Company, 
he also directs conversion of products from India to foreign standards and 
specifications to ensure efficient operations under foreign conditions. [The 
beneficiary] also supervises and arranges all shipping details, such as export 
Ilcenses, customs declarations and appointment of shipping agents. . . . 
EAC 03 107 50051 
Page 5 
The petitioner also claimed that the company "already has two other employees" and that the 
beneficiary "has just hired another one." The petitioner stated that the employees "do routine 
clerical works like taking care of office correspondence and typing orders, vouchers and other 
documents" and "searching for possible buyers and contacting them with specifications, 
comparing products to test latest trends and customs in cabinet hardware and evaluating the prices 
against product specifications and durability." The petitioner claims, "there is a stock person who 
usually takes care of the orders including storage, dealing with licensing agents and receiving the 
goods." The petitioner stated that one other person had been hired as "procurements in charge" 
and "has been sent to India" to "place orders and confirm the next dispatch schedule from India" 
On July 3 1,2003, 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. The 
director found that the new company did not grow to a sufficient size to support a managerial or 
executive position. The director noted that the petitioner had not provided detailed position 
descriptions for the beneficiary's subordinates and that the quarterly tax statements indicated that 
only the beneficiary had been paid. 
On appeal, the petitioner's counsel submits a brief and claims that the beneficiary is "only 
performing managerial or executive duties." Counsel explains that there are three employees who 
"do most of the day-today jobs" and that it is "not necessary that employees have to be on a 
payroll" because "[w]ork can be done by contract labor also." Counsel cites several unpublished 
AAO decisions and claims that the AAO has determined "that an organization after it becomes 
operational" looks at ''the increase in the number of employees, significant growth in cash flow, 
presence of significant customers and clientele." Counsel also claims, "there is no requirement in 
the law that a set number of employees are required to have a Manager. As long as a person is 
working in a managerial position and he is performing all managerial functions." 
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. 6 214.2(1)(3)(ii). On review, the 
petitioner has not established that the beneficiary has been and will be employed in a primarily 
executive or managerial capacity. The beneficiary's described duties are broad and do not 
elaborate haw the beneficiary will primarily perform managerial or executive duties. For 
example, the petitioner described the beneficiary's duties as "plac[ing] substantia1 orders for 
products" and "sell[ing] the products on consignment basis to the [sic] U.S." In addition, the 
petitioner claimed that it needs the beneficiary because of "his profound knawledge and 
understanding of the company, nature of the business and export expertise." However, it is 
unclear how his "profound knowledge" would be utilized in a capacity that is primarily 
managerial or executive in nature. 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 Brus. Co., Ltd. v. Sava, 
724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Although the director had specifically requested a detailed description of the beneficiary's duties, 
in response, the petitioner provided a vague description of the beneficiary's duties stating that the 
beneficiary's duties involved "supervise[ing] and arrang[ing] all shipping details "Reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
EAC 03 107 50051 
Page 6 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has 
failed to answer a critical question in this case: What does the beneficiary primarily do on a daily 
basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd, v. Suva, 724 F. Supp. at 1 11 08. 
Further, the petitioner claimed that the beneficiary's duties were "essentially managerial and 
executive in nature." The petitioner 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 IOl(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 addition, the petitioner described the beneficiary as being involved in selling the company's 
products by "direct[ing] foreign sales [and] service outlets of [the petitioner]," and negotiate[ing] 
contracts with foreign sales [and] distribution centers in the U.S." Since the beneficiary will 
actually be involved in the sales, he will be providing the services of the business rather than 
directing such activities. It is unclear who else would be performing the sales activities of the 
company, An employee who primarily performs the tasks necessary to produce a product or to 
provide services is not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
On appeai, counsel stated that there are "three employees who do most of the day-to-day jobs" 
and that it is "not necessary that employees have to be on a payroll" because "[wlork can be done 
by contract labor also." However, there is insuff~cient evidence to establish the existence of these 
employees. Additionally, the petitioner has not explained how the services of these claimed 
contracted employees obviate the need for the beneficiary to primarily conduct the petitioner's 
business. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soflici, 22 I&N Dec. 
158, 165 (Comrn. 1998) (citing Matrer of Treasure Craft of Cali/brnia, 14 I&N Dec. 190 (Reg. 
Cornm. 1972)). Furthermore, at the time the petition was filed, the petitioner only claimed to have 
one employee in addition to the beneficiary. The petitioner submitted a copy of Form W-2 
evidencing wages of $5,362.50 paid to in 2002, but failed to indicate his job title 
or duties. Even if the petitioner established that it hired additional payroll or contract employees 
after the petition was filed, the petitioner must establish eligibility at the time of filing the 
nonimrnigrant 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 
COYJ). , 17 I&N Dec. 248 (Reg. Comrn. 1978). 
Moreover, counsel correctly observes that 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-IA manager or executive. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 
ij 1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is 
acting in a managerial or executive capacity, CIS must take into account the reasonable needs of 
the organization, in light of the overall purpose and stage of development of the organization. In 
EAC 03 107 5005 1 
Page 7 
the present matter, however, the regulations provide strict evidentiary requirements for the 
extension of a "new office" petition and require CIS to examine the organizational structure and 
stafing levels of the petitioner. See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. $ 
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 CIS regulations 
that allows for an extension of this one-year period. If the business does not have sufficient 
staffing after one year to relieve the beneficiary fiom pritnarily performing operational and 
administrative tasks, the petitioner is ineligible by regulation for an extension. In the present 
matter, the petitioner has not explained how the reasonable needs of the petitioning enterprise 
justify the beneficiary's performance of non-managerial or non-executive duties. 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 (Comrn. 1998) (c~ting 
Matter of Treasure Craft ofCalfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the 
statute. See sections IOl(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 101 (a)(44). The reasonable 
needs of the petitioner may justify a beneficiary who allocates 51 percent of his duties to 
manageria1 or executive tasks as opposed to 90 percent, but those needs will not excuse a 
beneficiary who spends the majority of his or her time on nonqualifying duties. While the 
beneficiary in this matter likely performs some qualifying managerial duties, the record does not 
support the petitioner's claim that such duties require the majority of his time. The petitioner has 
not reached the point that it can employ the beneficiary in a predominantly managerial or 
executive position. 
On appeal, counsel further asserts that a set number of employees is not required "[a]s long as a 
person is working in a managerial position and he is performing all managerial functions." 
Whether the beneficiary is an "activity" or "function" manager turns in part on whether the 
petitioner has sustained its burden of proving that his duties are "primarily" managerial. Here, 
the petitioner fails to document what proportion of the beneficiary's duties would be managerial 
functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as managerial or executive, but it fails to quantify the time the beneficiary spends on them. 
This failure of documentation is important because several of the beneficiary's daily tasks, such 
as "sell[ing] Be products," do not fall directly under traditional managerial duties as defined in 
the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily 
performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. 
Supp. 2d 22,24 (D.D.C. 1999). 
Finally, counsel refers to several unpublished decisions to support his assertion that the 
beneficiary qualifies as a manager or executive. Counsel has furnished no evidence to establish 
that the facts of the instant petition are analogous to those in the unpublished decision. While 
8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in 
the administration of the Act, unpublished decisions are not similarly binding. 
EAC 03 107 5005 1 
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After carefhl consideration of the evidence, the AAO concludes that the petitioner failed to 
establish that the beneficiary has been and will be employed in a primarily executive or 
managerial capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner has not established that it maintains a 
qualifying relationship with a foreign entity as required by 8 C.F.R. § 214.2(1)(14)(ii)(A). On 
Form 1-129, the petitioner claimed that it is a subsidiary of the foreign company. The petitioner 
also indicated that the beneficiary is the sole proprietor of the foreign company, and that he also 
owns 100 percent of the petitioner's stock. Based on the petitioner's description of the company's 
ownership, the AAO notes that if any relationship exists, it would be an affiliate relationship 
pursuant to 8 C.F.R. 3 214,2(1)(l)(ii)(L). However, the record is devoid of any documentary 
evidence to substantiate the petitioner's claim that the two companies share common ownership. 
Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dee. at 165. The 
petitioner ctaims that it is a subsidiary of the foreign entity. It is further noted that the petitioner 
has submitted insufficient evidence to establish that the foreign sole proprietorship continues to 
do business, as required at 8 C.F.R. 9 214.2(1)(l)(ii)(G)(2). Unlike a corporation, a sole 
proprietorship does not exist as an entity apart from the individual owner. Matter of United 
Investment Group, 19 I&N Dec. 248 (Corn. 1984). A sole proprietorstup is a business in which 
one person owns all of the assets and operates the business in his or her personal capacity. Black's 
Law Dictionary 1398 (7th Edition). As the beneficiary claims to be the owner and sole proprietor 
of the foreign business, the presence of the beneficiary in the United States raises the question of 
whether the foreign business continues to do business abroad. The lack of current evidence lead 
the AAO to conclude that the foreign sole proprietorship is no longer doing business. Based on 
the above discussion, the petitioner has not established a qualifying relationship with the foreign 
entity. For this additional reason, the petition may not be approved. 
In addition, since the petitioner stated that the beneficiary is the owner of both the parent 
company and the U.S. company, if this fact is established, it remains to be determined that the 
beneficiary's services are for a temporary period. The regulation at 8 C.F.R. $ 214.2(1)(3)(vii) 
states that if the beneficiary is an owner or major stockholder of the company, the petition must 
be accompanied by evidence that the beneficiary's sewices are to be used for a temporary period 
and that the beneficiary will be transferred to an assignment abroad upon the campletion of the 
temporary services in the United States. In the absence of persuasive evidence, it cannot be 
concluded that the beneficiary's services are to be used temporarily or that he will be transferred 
to an assignment abroad upon completion of his services in the United States. For this additional 
reason, the petition may not be approved. 
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 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), ard. 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). 
EAC 03 107 5005 1 
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In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 4 136 1. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.