dismissed L-1A Case: Import/Export And Retail

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Imnligration 
and Nationality Act, 8 U.S.C. 8 1 101(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 further inquiry must be made to that office. 
drninistrative Appeals Office 
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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 incorporated in 2000 and - 
claims to be in the import and export, retail sales, consulting, and marketing business. The petitioner claims 
that the U.S. entity is a subsidiary of located in Karachi, Pakistan. The petitioner declares 
five employees with a gross annual income of $567,265.50. The petitioner seeks to extend its authorization to 
employ the beneficiary temporarily as director and president of the U.S. entity for a period of two years, at a 
yearly salary of $36,000.00. 
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. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties have 
been and will continue to be managerial or executive in nature. 
To establish L-1 eligibility under section lOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 6 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: 
lntracompany 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 subsidiar). 
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 03 035 52763 
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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 hirnlher 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. 5 214.2(1)(14)(ii) states that 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 (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; 
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 petitioner has established that the beneficiary's employment with 
the U.S. entity will be primarily managerial or executive in nature. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(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 
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(iv) Exercises discretion over the day-today 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 101(a)(44)(B) of the Act, 8 U.S.C. !j 1101(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 stockholders of the organization. 
The petitioner described the beneficiary's duties in the petition as: "Has been serving as directorlpresident of 
U.S. subsidiary. Is overall in charge of the company's operation. Hires, trains, supervises, and fires managers 
who, in turn, perform the same functions with respect to lower echelon employees." 
In a letter dated November 15,2002, the petitioner described the beneficiary's duties as follows: 
As the president of [the U.S. entity] in Sugar Land, Texas, [the beneficiary] is authorized to 
initiate and carry out all import business conducted in the U.S. He will direct the 
management of the company and establish its policies and goals regarding business direction 
and growth. [The beneficiary] maintains contact with existing clients overseas and explores 
and establishes business relationships with potential buyers in local markets in the U.S. He 
formulates business strategies and financial goals, and directs and oversees all activities of 
the company. [The beneficiary] exercises wide latitude in discretionary decision-making, and 
receives only general supervision from directors in Karachi. He spends about 60% of his 
time in supervisory duties, 20% in assessing new projects and business opportunities and the 
rest in miscellaneous functions. 
The petitioner stated that the U.S. entity employed a manager in its mortgage department who was in charge 
of consultation and marketing of home mortgages. The petitioner stated that the U.S. company also employed 
clerical staff, and an import manager who was in charge of the import of furniture and other items. 
In response to the director's request for additional evidence, the petitioner described the beneficiary's duties 
in part as: 
[The beneficiary] would directly supervise the mortgage operation. 
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[The beneficiary] also supervises the manager of our 'furniture and accessories import 
division' who supervises one clerk. In addition, he supervises the manager of the vehicle 
audio division who, in turn, supervises an installer and commissioned sales personnel. The 
commissioned sales personnel do not appear on our payroll since they are 'contract' workers. 
The petitioner submitted an organizational chart depicting the U.S. entity's hierarchy. The chart listed the 
beneficiary as director and president. The chart also listed employees under the beneficiary's direction to 
include: an installer and commissioned sales personnel in the vehicle audio division; a clerical position in the 
furniture and accessories import division; and loan officers and loan processors in the financial mortgage 
division. The petitioner submitted copies of the U.S. entity's IRS Form 941, Employer's Quarterly Federal 
Tax Return for all four quarters in 2002; and the company's IRS Fonn 940-EZ, Employment (FUTA) Tax 
Return summary for 2002. 
The director denied the petition determining that the evidence submitted was insufficient to establish that the 
beneficiary would be employed by the U.S. entity primarily in an executive capacity. The director noted that 
the U.S. entity employed five persons and paid only $33,750.00 in total salaries and less than $568,000 in 
gross annual income. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence submitted clearly 
establishes that the beneficiary will be employed by the U.S. entity primarily in a managerial or executive 
capacity. Counsel contends that the evidence submitted demonstrates that the beneficiary will be performing 
managerial or executive duties as the director and president of the U.S. entity. Counsel also contends that 
there are no regulatory requirements that call for a company to have a certain amount in payroll or gross sales 
in order to qualify for L-1 intracompany transferee status. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a managerial or executive capacity. When examining the managerial or executive capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the beneficiary's 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. In this matter, the petitioner has failed to demonstrate whether the beneficiary's duties are 
primarily managerial or primarily executive. For example, on the one hand the petitioner states that the 
beneficiary directs the management of the company, exercises wide latitude in discretionary decision-making, 
and only receives general supervision from directors. On the other hand, the petitioner states that the 
beneficiary supervises subordinates. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-today functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). In this matter, there is insufficient evidence to show that the 
beneficiary will perform the high-level responsibilities as defined, or that he will primarily perform those 
duties rather than spending the majority of his time performing day-today functions of the organization. 
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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 managing the company, establishing its policies and goals, formulating 
business strategies, and exploring and establishing business relationships. The petitioner did not, however, 
define the beneficiary's goals, policies, or clarify how the beneficiary is to explore and establish business 
relationships. 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 :Dee. 190 
(Reg. Cornrn. 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afS'd, 
905 F.2d 41 (2d. Cir. 1990). 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section lOl(a)(44)(A) of the Act, 
8 U.S.C. 5 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as directing the entire 
operation of the organization, establishing goals and policies of the organization, and exercising sole 
discretionary decision making authority. 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. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associales Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Although the petitioner asserts that the beneficiary will be managing a subordinate staff, the record does not 
establish that the subordinate staff will be composed of supervisory, professional, or managerial en~ployees. 
See section 101(a)(44)(A)(ii) of the Act. In the instant matter, the petitioner asserts that the beneficiary will 
spend about 60% of his time performing supervisory duties. The petitioner also contends that the beneficiary 
will supervise the mortgage division, and the managers of the vehicle audio division and furniture and 
accessories import division. However, there has been no evidence presented to demonstrate that the persons 
to be managed are supervisory, professional, or managerial employees. It is noted that the petitioner asserts 
that "[the beneficiary] hires, trains, supervises, and fires managers who, in turn, perform the same functions 
with respect to lower echelon employees." 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. Based upon the evidence in the record it appears that the 
beneficiary will be primarily supervising a staff of non-professional employees; therefore, the beneficiary 
cannot be deemed to be primarily acting in an executive or managerial capacity. 
Although the petitioner contends that it employs commissioned sales personnel who don't appear on the 
payroll because they are "contract workers," it has neither presented evidence to document the existence of 
these employees nor shown how they will be supervised by their superiors. Nor has the petitioner identified 
whether the contract employees are employed on a full-time or part-time basis. Additionally, the petitioner 
has not explained how the services of the contracted employees will obviate the need for the beneficiary to 
primarily conduct the petitioner's business. Without documentary evidence to support its statements, the 
petitioner does not meet its burden of proof in these proceedings. Matter of Treasure Crap of Gzlifornia, 
supra. 
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In summary, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed by the U.S. entity in a primarily managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
Although not directly addressed by the director, the minimal documentation of the foreign entity's business 
operations raises the issue of whether there remains a qualifying relationship between the U.S. entity and a 
foreign entity pursuant to 8 C.F.R. 6 214.2(!)(l)(ii)(G). The petitioner has not demonstrated that a qualifying 
relationship still exists between the U.S. entity and a foreign entity and that the foreign entity will continue 
doing business during the alien's stay in the United States. Consequently, it cannot be concluded that the 
foreign entity continues to have a qualifying relationship with the U.S. entity. For this additional reason, the 
petition will 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. 6 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.