dismissed L-1A Case: Import/Export

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W , Rm A3042 
Washngton, DC 20529 
U. S. Citizenship 
and 1mmigratio:n 
File: SRC-02-234-52175 Office: TEXAS SERVICE CENTER Date: FEB 2 3 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the immigration 
and Nationality Act, 8 U.S.C. 3 1 10 1 (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. 
Ad inistrative Appeals Office 
\ f 
SRC-02-234-52 175 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a norllmmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The A40 will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its Chief l<xecutive 
Officer 1 Vice President as an L- 1 A nonimrnigrant intracompany transferee pursuant to section 10 1 (a)( 15)(L) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of Florida that operates as an importer and exporter between the United States and 
China. The petitioner claims that it is the subsidiary of 
located in Tianjin, China. The beneficiary was initially 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 petitioner filed the petition on July 30, 2002. On December 4, 2002, 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. On January 2, 2003, the petitioner filed a motion to reopen and 
reconsider. On November 26, 2003, the director dismissed the motion to reopen and reconsider, concluding 
that the petitioner did not overcome the original grounds for denial. 
On December 29, 2003, the petitioner filed the present appeal. On appeal, counsel for the petitionler asserts 
that the petitioner has submitted sufficient evidence to show that the beneficiary will be employed in an 
executive capacity. Counsel hrther asserts that the director failed to fully consider a list of previously alleged 
facts, and misstated one of the petitioner's prior arguments. Counsel states that the director applied an 
erroneous legal standard by considering the petitioner's gross revenue as a negative factor. In support of 
these assertions, the petitioner submits a statement on Form I-290B with an addendum, as well as previously 
submitted evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)( 15)(L) of the Act. Specifically, a qualifying organization must have empl.oyed 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. 9 214.2(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 specializecl 
knowledge capacity, including a detailed description of the services to be performed. 
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(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 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. $ 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 nn 
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 lo 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in the present matter is whether the beneficiary will be 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. 5 1 101(a)(44)(A), defines the term "managerial capac ity" 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 
enlployees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
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(iii) if another employee or other enlployees 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 fix 
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 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), defines the term "executive capacity" as 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; 
(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 the denial of December 4, 2002, the director stated the following: 
Review of the evidence shows the petitioner is an impodexport business that employs only 
two people and has a gross annual income of less than $250,000. 
The petitioner has not demonstrated the beneficiary manages or directs the management of a 
department, subdivision, function, or component of the organization. The petitioner has not 
established the beneficiary will be involved in the supervision and control of the work of 
other supervisory, professional or managerial employees who will relieve him fronn 
performing the services of the business. Therefore, the beneficiary cannot be said to be 
engaged in primarily executive duties a preponderance of the time as the business has not 
expanded to the point where the services of a hll-time, bona fide Chief Executive 
OfficerNice President would be required. The majority of his work time would be spent in 
the nonexecutive, day-to-day operations of the business. 
In response to the petitioner's motion to reopen and reconsider, the director provided a thorough explanation 
of the proper consideration of a petitioner's staff size in the context of an L-1A adjudication. The director 
noted that "it is simply a fact in the business world that the greater the size of a corporation, the greater the 
extent of the traditional layering of employees." 'The director confirmed that "[ilt assuredly is not true that a 
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lack of size in and of itself 'disqualifies the U.S. company from sponsoring an employee for an extension.' All 
attributes of a petitioning business are taken into account prior to rendering a decision." The director 
indicated that the petitioner erroneously stated that "an alien qualifies as a manager or executive if the 
employee or employees he or she supervises are professionals." The director correctly provided that "the 
beneficiary's position cannot be considered largely and inherently executive in nature simply b1:cause he 
oversees an employee who is a doctor and pharmacist." The director discussed the petitioner's argument that 
the facts of the present matter are analogous to those in an unpublished AAO decision involving an employee 
of the Irish Dairy Board. The director distinguished the two matters by stating that "[the Irish Dairy Board] 
was far more active in [its] business than the petitioner." The director addressed the petitioner's claim that the 
beneficiary supervises two sales representatives on a contract basis, and that the beneficiary has supervisory 
authorities over the employees of a warehousing company pursuant to a contractual agreement. The director 
correctly highlighted that the contracts submitted by the petitioner as evidence of these supervisory 
relationships were executed after the date of filing the petition, thus the beneficiary's claimed s~ipervisory 
authority over outside contractors cannot be considered for the purposes of this adjudication. The director 
concluded by responding to the petitioner's statement that it "is basically a new company and it takes time for 
a new company to grow and to prosper." The director noted that the petitioner has been given one year to 
expand, yet has failed "to establish that the beneficiary is currently engaging in truly executive duties a 
majority of the time." 
On appeal, counsel for the petitioner states that: 
Our reason for this appeal is that the Texas Service Center fails to fully consider the 
following factors: 1) There are no statutory restrictions on small companies; 2) The 
beneficiary is a functional manager; 3) The beneficiary supervises professionals; 4) The 
beneficiary supervises independent contractors; 5) The beneficiary uses and supervist:~ 
business partner's staff; 6) There is a precedent that even [a] sole company employee may 
qualify. 
Counsel suggests that the director misstated one of the petitioner's prior arguments regarding the legal 
significance of a beneficiary's supervisory authority over professionals. Counsel claims that the petitioner 
asserted that the beneficiary's supervision of professionals is "one of, not the only, reason and justification for 
the L-1A classification as a manager and executive." Counsel repeatedly refers to an unpublished AAO 
decision involving an employee of the Irish Dairy Board as a "precedent decision," and assert:; that the 
relevant facts are analogous to the present matter, rendering the beneficiary a functional manager. Counsel 
takes issue with the director's statement that the petitioner is dissimilar from the Irish Dairy Board due to 
having a lower sales volume. 
Upon review, counsel's assertions are not persuasive. With one exception, counsel fails to sufficiently address 
the director's grounds for denial as stated in the decisions denying the petition and the motion to reopen and 
reconsider. Counsel's generalized statement that "the Texas Service Center fail[ed] to fully cor~sider the 
[provided list of factors]" does not adequately address the director's denial or assert that the (director's 
decision was based on any erroneous conclusion of law or statement of fact. Contrary to counsel's claim, the 
director clearly stated that a petitioner's size will not disqualify it from sponsoring a beneficiary for L-1A 
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classification. The director's decisions reflect that she appropriately considered the petitioner's size in light of 
all of the evidence submitted, and her decisions were not unduly based on the petitioner's small staff size. 
Counsel claims that the director failed to consider that the beneficiary supervises independent contractors, yet 
the director specifically addressed the petitioner's evidence on this point. The director correctly explained that 
the evidence was not probative of the petitioner's eligibility, as it reflects supervisory relationships i.hat were 
created after the filing date. The petitioner must establish eligibility at the time of filing the noni~nrnigrant 
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 Cop, 17 I&N Dec. 248 (Reg. Cornnl. 1978). 
While counsel claims that the director failed to consider that the beneficiary supervises professionals, the 
director's denial specifically states that "[tlhe petitioner has not established the beneficiary will be involved in 
the supervision and control of the work of other supervisory, professional or managerial employees who will 
relieve him from performing the services of the business." Thus, it is clear that the director examined this 
issue. 
Counsel states that the referenced AAO decision involving an employee of the Irish Dairy Board is a 
"precedent decision," yet the AAO notes that it is unpublished. While 8 C.F.R. 3 103.3(c) provides that AAO 
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished decisions 
are not similarly binding. Accordingly, the AAO decision involving an employee of the Irish Dairy Board is 
not binding precedent in this proceeding. 
Counsel asserts that, in light of the hsh Dairy Board decision, the director failed to consider that the 
beneficiary is a function manager. The petitioner provided no further documentation or explanation to reflect 
that the beneficiary is a function manager. 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). Further, 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. The director's decisions clearly reflect that she considered whether the 
beneficiary's duties will be primarily managerial. In concluding that the petitioner failed to establish that the 
beneficiary will be primarily engaged with managerial duties, the director likewise found that the beneficiary 
would not be a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
Counsel takes issue with the director's statement that the petitioner is dissimilar from the Irish Daily Board 
due to having a lower sales volume. Counsel correctly states that "there is no statutory requireinent for 
qualifying sales volumes." Upon review of the denial of the motion to reopen and reconsider, the AAO 
observes that the director's comments on this issue suggest that she considered the petitioner's sales volume to 
be a negative factor. Yet, in light of the numerous other issues the director addressed, it is evident that she did 
not deem the petitioner barred from eligibility based on a low sales volume. The record reflects that the 
director appropriately considered the petitioner's sales volume as one factor that sheds light on the 
beneficiary's actual duties. Further, as discussed above, the unpublished AAO decision involving an 
enlployee of the Irish Dairy Board is not binding precedent. The director's comn~e~tt regarding the petitioner's 
sales volume was made in the course of distinguishing the facts of the present petition with those of the 
referenced matter. The director need not have made such a distinction. 
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Finally, counsel suggests that the director misstated one of the petitioner's prior arguments regarding the legal 
significance of a beneficiary's supervisory authority over professionals. Counsel claims that the petitioner 
asserted that the beneficiary's supervision of professionals is "one of, not the only, reason and justification for 
the L-1A classification as a manager and executive." However, in the motion to reopen and reconsider, 
counsel stated that "an alien qualifies as a manager or executive if the employee or employees :he or she 
supervises are professionals." In the motion counsel provided no qualification of this statement. Thus, the 
director correctly presented counsel's assertion on this point, and appropriately noted that it is erroneous under 
current law. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The regulation at 8 C.F.R. 9 214.2(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 m~anagerial 
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 regulaticln for an 
extension. In the instant matter, the petitioner has not established that it has reached the point that it can 
employ the beneficiary in a predominafitly managerial or executive position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. 3 214.2(1)(3). For this reason, the director's decisicln will be 
affirmed and the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying corporate 
relationship with the beneficiary's foreign employer as required by 8 C.F.R. 8 214.2(1)(l)(ii)(G). The 
regulation at 8 C.F.R. § 214.2(1)(14)(ii)(A) requires the petitioner to submit "[elvidence that the United States 
and foreign entities are still qualifying organizations." On the petition, the petitioner indicated that it is the 
subsidiary of the beneficiary's foreign employer. The petitioner has provided no documentation to establish 
that the foreign entity holds an ownership interest in it. Again, going on record without si~pporting 
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. at 190 (Reg. Comm. 1972). Further, in the company 
brochure for the foreign entity, numerous subsidiary companies are listed, yet the petitioner is not among 
them. For this additional reason, the appeal will be dismissed. 
An application or petition that fails to comply with the technical requirements of the law may be clenied 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), aff. 345 F.3d 683 
(9th Cir. 2003); see also Dol- 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. 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.