dismissed L-1A Case: Import/Export

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prevent dearly uun wa- 
invasion of oersnnal ~rfm 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Km. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigratioil 
PUBLIC COPY 
FILE: SRC 04 01 1 51015 Office: TEXAS SERVICE CENTER Date: AUG 1 5 :to05 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, ~ire6tor 
Administrative Appeals Office 
SRC 04 011 51015 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 2002 and 
claims to be an im~orterlex~orter and marketerldistributor of wholesale products. The petitioner claims to be 
a subsidiary of .A., located in Venezuela. The petitioner seeks to extend 
its authorization to employ the beneficiary temporarily in the United States as its president for an additional 
three years, at an annual salary of $28,000.00. The director determined that the petitioner had not submitted 
sufficient evidence to demonstrate that the beneficiary would be employed by the U.S. entity in a primarily 
managerial or executive capacity. The beneficiary was initially granted a one-year period to open a new - 
office in the United States and the petitioner now seeks to extend the beneficiary's stay. 
On appeal, the self-petitioner disagrees with the director's decision and asserts that it has submitted sufficient 
evidence to establish that the beneficiary will be employed by the U.S. entity in a managerial or executive 
capacity. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (:the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary, or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a fm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
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. 
SRC 04 01 1 51015 
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(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 himher 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. 
The regulation at 8 C.F.R. 3 214.2(1)(14)(ii) states that a visa petition under section IOl(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 (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); 
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; 
Dl 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 petitioner has submitted sufficient evidence to establish that the 
beneficiary will be employed by the U.S. entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1 101(a)(44)(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 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 
SRC 04 011 51015 
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(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 1 lOl(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(9 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. 
Section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1101 (a)(44)(C), provides: 
If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, the Attorney General shall take into account the reasonable 
needs of the organization, component, or function in light of the overall purpose and stage of 
development of the organization, component, or function. An individual shall not be considered 
to be acting in a managerial or executive capacity (as previously defined) merely on the basis of 
the number of employees that the individual supervises or has supervised or directs or has 
directed. 
Initially, the petitioner described the beneficiary's proposed job duties as: "To plan, manage and supervise the 
company in the U.S. Establishing the company's corporate structure, developing the company's financing 
and marketing strategies and for managing and overseeing the company's day to day operations. Also make 
contacts, buy products, and establishing the Florida subsidiary as General Manager Corporations." 
The petitioner submitted a list of the beneficiary's job duties and percentage of time allotted to each as: 
1. Attend and head weekly supervisors and staff meeting 3.0 
2. Review corporate, financial, and operating reports for the 
Venezuelan and U.S. corporations 
3. Review, coordinate, assign, and supervise the work and 
Procedures conducted by the Venezuelan and the U.S. corporation 10.5 
SRC 04 011 51015 
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4. Prepare and submit all sales and import tax returns to Venezuelan 
Government for shipments received. 
5. Coordinate, authorize, and supervise all jobs both national and 
International 4.0 
6. Attend weekly Chamber of Commerce business meeting for local 
Business owners. 4.5 
7. Review and authorize all corporate expenditures submitted by manager 4.5 
8. Review and authorize international orders submitted by U.S. Corporation. 5.5 
9. Direct and manager [sic] all miscellaneous aspects of company 
Administration. 5.0 
10. Review weekly corporate expense reports and bank reconciliation 
statements. 4.0 
The petitioner submitted a chart depicting the organizational hierarchy of the U.S. entity. The chat showed 
that the company's general manager had an assistant and driverldispatch under his direction. 
In response to the director's Notice of Intent to Deny, the petitioner described the beneficiary's job duties in 
part as: 
[The beneficiary's] responsibilities as president are to plan, manage and supervise the 
company in the United States. He will hold primary responsibility for establishing the 
company's corporate structure, developing the company's financing and for managing and 
overseeing the company's day-to-day operations (financial investments, human resources, 
and the assets to the company). [The beneficiary] will make contracts, buy product, and most 
importantly, prepare the groundwork and establish the Florida subsidiary. Also he manages 
at an executive level and supervises everything related with the import and export and sales 
department. As for the other areas like warehouse, dispatch, administration, invoicing and 
reception, local employees handle these ....[ The beneficiary] has a group of 3 employees 
(including [the beneficiary]) directly reporting to him. They include one assistant, one 
telemarketing [sic], who keeps the president's, accountants, agenda, and records in order, also 
they prepares [sic] forms and serves as an intermediary between the management and the 
clients, three international sales person[s], (by sub-contract and dependent of the Venezuelan 
company but report directly to [the beneficiary] who are in charge of the international 
commercialization of wholesale products. In addition, the managers and staff of our 
Venezuelan subsidiaries report to [the beneficiary]. The time percentage with the company is 
60% management and 40% supervisor. 
SRC 04 011 51015 
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Functioning autonomously, [the beneficiary] establishes and promotes the standardization of 
technical support and service based upon our corporate model. He meets regularly with 
various development units to review current policies and procedures and develops appropriate 
plans necessary to ensure consistency of the company's development in accordance with 
corporate standards. 
The petitioner stated that the assistant possessed a high school diploma and described her job duties as: 
She is responsible for a variety of administrative and clerical duties necessary to run the 
organization efficiently. In addition, she serves as an information manager for the office, 
schedules meetings, appointments, organizes and maintains paper, and electronic files, 
manage projects, conducts researches, and proved information via telephone, postal mail, and 
e-mail. In addition, she prepares correspondence and handles travel arrangements. 
The petitioner stated that the telemarketer possessed an associate degree in administration and described his 
job duties as: "He determines the demand of products and services offered by the firm and its competitors. In 
addition, he identifies potential markets.. .." 
The petitioner submitted as evidence copies of the U.S. entity's payroll analysis covering the second, third, 
and fourth quarters of 2003, and IRS Form 941, Employer's Quarterly Federal Tax Return for the first and 
second quarters of 2003. 
The director subsequently denied the petition. The director noted that the evidence failed to demonstrate that 
the beneficiary was managing other professionals or managers at the time the petition was filed. The director 
also noted that given the current structure of the U.S. entity, it appeared that the beneficiary would have to be 
engaged in the organization's day-to-day business activities. 
On appeal, the petitioner argues that the beneficiary has two subordinates located in the United States as well 
as managers and staff of the foreign subsidiaries who report directly to him. The petitioner further argues that 
the beneficiary has autonomous control over the organization and exercises wide latitude and discxetionary 
decision-making. On appeal, the petitioner resubmits copies of its employee job duty descriptions, company 
payroll analysis, and IRS Form 941, Employer's Quarterly Federal Tax Return. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been 
employed in a managerial or executive capacity. 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. 5 214.2(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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. In the instant matter, the petitioner asserts that 
the beneficiary spends 60 percent of his time performing management duties and 40 percent of his time 
supervising. The petitioner also asserts that the beneficiary manages at an executive level and supervises the 
importlexport and sales departments. However, the petitioner has failed to provide detailed evidence to 
establish which percentage of the 60140 split is actually spent performing executive duties. 
SRC 04 011 51015 
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On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties include supervising everything related with the import and export and sales 
departments. The petitioner did not, however, clarify who actually~conducts the company sales c)r explain 
what personnel andlor activities are related to the import and export aspects of the business. 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). 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), affd, 905 F.2d 41 (2d. Cir. 1990). 
Rather than providing a specific description of the beneficiary's duties, the petitioner generally paraphrased 
the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 
8 U.S.C. 3 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as directing the entire 
operation of the organization, having wide latitude over the company business decisions, and exercising sole 
discretionary decision making. However, conclusory assertions regarding the beneficiary's employment 
capacity are not sufficient to meet the petitioner's burden of proof. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd., 724 F. Supp. at 
1108; Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The petitioner describes the beneficiary as preparing and submitting all sales and import tax returns. Since 
the beneficiary actually performs the bookkeeping and accounting function he is performing a task necessary 
to provide a service or product and this duty will not be considered managerial or executive in nature. An 
employee who primarily performs the tasks necessary to produce a product or to provide serviczes is not 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology International, 
19 I&N Dec. 593,604 (Cornm. 1988). 
Although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. The evidence, at best, demonstrates that the petitioner has hired two 
part-time non-professional subordinates to work under the beneficiary's direction. Further, there has been no 
evidence submitted to establish that the employees employed abroad are professional, managerial, or 
supervisory personnel or that they are directly supervised by the beneficiary. A first-line supervisor will not 
be considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the 
employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. Because the beneficiary is 
primarily supervising a staff of non-professional employees, the beneficiary cannot be deemed to be primarily 
acting in a managerial capacity. 
The petitioner has failed to reconcile the inconsistencies found in the record. For example, the U.S. entity's 
organization chart lists a general manager, assistant, and driver-dispatch as the company employees. 
However, in response to the director's notice of intent to deny the petitioner described the beneficiary not as 
general manager but as president, and the driver-dispatcher as a telernarketer. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
SRC 04 011 51015 
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The petitioner indicates that it plans to hire additional managers and employees in the future. However, the 
petitioner must establish eligibility at the time of filing the nonirnrnigrant 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. Cornrn. 1978). Furthermore, 
8 C.F.R. 3 214.2(1)(3)(v)(C) allows the intended United States 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 is not sufficiently operational after one year, 
the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has not shown 
that it can employ the beneficiary in a predominantly managerial or executive position. Therefore, the 
petition may not be approved. 
Beyond the decision of the director, the petitioner has not established that it is eligible for an extension of the 
initial one-year "new office" validity period. As previously noted, the regulation at 8 C.F.R. 3 214.21:1)(14)(ii) 
provides strict evidentiary requirements that the petitioner must satisfy prior to the approval of this extension 
petition. Upon review, the petitioner has not satisfied all of the enumerated evidentiary requirements. The 
petitioner has failed to establish that it has secured sufficient physical premises to house its office. The 
petitioner submitted a copy of a commercial lease agreement, which states that the agreement commences 
August 1, 2002 and terminates August 1, 2003. It is noted by the AAO that the petition in the instant case 
was filed October 15, 2003. There is nothing in the record to show that the petitioner had entered into a valid 
lease agreement at the time the petition was filed. In addition, the minimal documentation submitted of the 
U.S. entity's recent business operations raises the issue of whether the U.S. entity has been and will continue 
to be engaged in the regular, systematic, and continuous provision of goods and/or services pursuant to 
8 C.F.R. 5 214.2(1)(l)(ii)(G)(2). For these additional reasons, 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 of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F.SU~~.~"~ 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9" 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). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.