dismissed L-1A Case: Import/Export

U.S. Department of lIomeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
u. s. Citizenship 
and Immigration 
Services 
FILE: WAC 03 234 52436 Office: CALIFORNIA SERVICE CENTER Date: @ ql 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(I 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(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 fwther inquiry must be made to that office. 
qikbbert P. hemann, Director 
J Administrative Appeals Office 
WAC 03 234 52436 
Page 2 
DISCUSSION: The nonimmigrant 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 importer and exporter of goods from and to Sri Lanka. The petitioner claims to be a branch 
office of Aranga, located in Kandy, Sri Lanka. The petitioner seeks to extend its authorization to employ the 
beneficiary temporarily in the United States as its president for a period of three years, at an annual salary of 
$30,000.00. The beneficiary was initially granted a one-year period of stay to open a new office in the 
United States. The director determined that the petitioner had failed to submit sufficient evidence to establish 
that the beneficiary would be employed in a primarily managerial or executive capacity. 
On appeal, counsel disagrees with the director's decision and asserts that the petitioner has submitted 
sufficient evidence to demonstrate that the beneficiary will be employed in a primarily 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. 9 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. 9 214.2(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 firm 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. 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 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 
WAC 03 234 52436 
Page 3 
education, training, and employment qualifies hider 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. 8 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) of the Act 
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 (I)(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; 
(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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
6) 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 
WAC 03 234 52436 
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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. 3 110l(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; 
(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 stocWlolders of the 
organization. 
Section 101(a)(44)(C) of the Act, 8 U.S.C. 3 110 1 (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. 
The petitioner initially described the beneficiary's duties as: "President of USA company, Marketing 
Manager, coordinate customer service, expedite shipments between Sri Lanka, Mexico and USA. Accounting 
Manager, hire employees, maintain [sic] office, etc." 
In response to the director's request for evidence, the petitioner described the beneficiary's duties as: 
1. Research and purchase raw materials, artistic articles, and agricultural supplies to be 
marketed to the United States and Canadian markets, and eventually to Sri Lanka and 
throughout Asia . . . . This activity represents about 20% of [the beneficiary's] duties. 
2. Marketing of Araga products, manufactured in Sri Lanka, to various markets with the 
United States and Canada. This activity represents about 25% of [the beneficiary's] 
duties. 
3. Prepare contracts with suppliers and customers. This activity represents about 10% of 
[the beneficiary's] duties. 
WAC 03 234 52436 
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4. Hire competent, multi-lingual staff for customer service. Initially one additional United 
States employee will be hired to staff the new company. This activity represents about 
5% of [the beneficiary's] duties. 
5. Set up an efficient and cost effective operation, including leasing and maintaining 
adequate office space, selection and installation of a computerized business system, 
network connections to other companies and a meeting facility for customers and 
suppliers. This activity represents about 20% of [the beneficiary's] duties. 
6. Manage all aspects of the North American operation, including sales and marketing, 
accounting, communications, customer service, delivery and receiving, warehousing, 
customer returns, government compliance, and employee safety. This activity represents 
about 10% of [the beneficiary's] duties. 
7. Serve as initial Chief Financial Officer to control costs and manage revenues. This 
activity represents about 5% of [the beneficiary's] duties. 
8. Serve as ultimate Customer and Supplier Liaison. This activity represents about 5% of 
[the beneficiary's] duties. 
The petitioner submitted as evidence company payroll records for the U.S. entity covering the period from 
February 2003 through June 2003. The petitioner also submitted as evidence a copy of the U.S. entity's IRS 
Form 941, Employer's Quarterly Federal Tax Return, for the quarters ending March 31, 2003, and June 30, 
2003. 
The director determined that the petitioner's claim that the beneficiary manages a business does not 
necessarily establish eligibility for the classification sought. The director noted that it appeared fkom the 
record that only one other person besides the beneficiary was employed by the U.S. entity and that person's 
duties were not clear. The director also noted that it appeared from the record that the beneficiary would be 
primarily performing the day-to-day duties associated with the operation of the business. The director 
determined that based upon evidence in the record, the beneficiary's responsibilities primarily entailed market 
research, sales, and other non-qualifying duties. The director further noted that the U.S. entity did not possess 
the organizational complexity to warrant having an executive officer. 
On appeal, counsel argues that since there has been significant effort and some success in developing the 
newly established business, the beneficiary should be given the opportunity to continue in his efforts to grow 
and expand the U.S. entity and to employ additional workers. Counsel also argues that the beneficiary 
performs the managerial and executive functions described in the regulations as well as meeting with existing 
and future business contacts, suppliers, and customers. Counsel contends that although the beneficiary has 
been able to hire an additional employee, the original business plan remains intact, including plans to hire 
more employees, add a warehouse, and expand office space. Counsel further contends that 60 percent of the 
beneficiary's time is spent on managerial and executive tasks and 40 percent of the time is spent building the 
business, developing business partners, and building financial relationships. 
Counsel's argument is not persuasive. In evaluating whether the beneficiary has been or will be employed in 
a primarily managerial or executive capacity, the AAO will look first to the petitioner's description of the 
beneficiary's 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. In this matter, the record demonstrates that the beneficiary has 
performed and will continue to perform various non-qualifying job duties for the U.S. entity. 
WAC 03 234 52436 
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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 is responsible for managing all aspects of the "North American" operation. The petitioner did 
not, however, detail the organization's business activities, nor clarify the beneficiary's duties in managing the 
organization. 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. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 
F.2d 41 (2d. Cir. 1990). 
In addition, the petitioner describes the beneficiary as conducting industry research, purchasing raw materials, 
marketing the petitioner's product, preparing company contracts, and serving as a customer service 
representative. Since the beneficiary actually performs clerical work, sells the product, negotiates the 
contracts, and markets the petitioner's product, he is performing tasks necessary to provide a service or 
product and these duties will not be considered managerial or executive in nature. 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). 
Even though the petitioner claims that the beneficiary directs and manages the petitioner's overall operational 
activities, it does not claim to have anyone on its staff to actually perform the functions of the business. The 
petitioner failed to submit an organizational chart of the U.S. entity as requested by the director. Although the 
petitioner did submit copies of the entity's payroll records and Forrn 941 for the quarters ending March 31, 
2002, and June 30,2003, these records show that only one person was employed by the U.S. organization for 
the first half of 2003. 
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. Comm. 1978). Furthermore, 
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 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. The petitioner has failed to establish that the U.S. 
entity has reached a stage of organizational complexity sufficient to support a managerial or executive 
position. Accordingly, the petition may not be approved. 
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. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.