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

: d-ntifying data deletea ub 
preverlt clearly unwarranted 
invasion of personal privacy 
U.S. Department of EIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: 
 SRC 04 110 51893 
 Office: TEXAS SERVICE CENTER 
 Date: JUL 0 7 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
COURTESY COPY TO: 
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. 
dministrative Appeals Office 
4 
SRC 04 110 51893 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its marketing manager as 
an L-1 A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 1101(a)(15)(L). The petitioner is Florida corporation that claims to be 
engaged in the import and export of equipment, school clo 
 It operates a retail 
clothing store. The petitioner states that it is the subsidiary o 
 located in Caracas, 
Venezuela. The beneficiary was initially granted a one-year period of stay in L-1A status to open a new 
office in the United States and the petitioner now seeks to extend the beneficiary's stay for a three-year period. 
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. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the beneficiary has been 
performing duties "of a managerial/executive capacity" and is responsible for supervising and controlling the 
work of other supervisory and professional employees as the manager of the company's marketing 
department. The petitioner submits a brief and additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101 (a)(15)(L) of the Act. Specifically, 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 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. fj 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 education, 
training, and employment qualifies hirnlher to perform the intended services in the United 
SRC 04 110 51893 
Page 3 
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. 9 214.2(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 in 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 to 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 petitioner established that 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. tj 1101(a)(44)(A), defines the term "managerial capacity" 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 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 managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
SRC 04 110 51893 
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Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1 101(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. 
The nonimmigrant petition was filed on March 8, 2004. In a March 3, 2004 letter submitted in support of the 
petition, the petitioner stated that as marketing manager, the beneficiary is "in charge of establishing and 
supervising the Marketing Department." The petitioner noted that the beneficiary "has full authority to hire 
and fire the necessary personnel in her department, and together with the Board of Directors of the parent 
company she sets policy, procedures and goals for our U.S. subsidiary." The petitioner stated that the 
beneficiary supervises three full-time employees, including university students. 
The petitioner submitted its Florida Form UCT-6, Employer's Quarterly Report, for the fourth quarter of 
2003, on which the petitioner reported three employees, including the beneficiary. Each employee received 
wages of $412.00, for a total of $1,236 paid in wages for the quarter. The petitioner also provided a copy of 
its 2003 IRS Form 940-EZ, Employer's Annual Federal Unemployment (FUTA) Tax Return, indicating that 
the total amount paid in wages for the year was $1,236. 
The director issued a request for additional evidence on March 26, 2004, in part instructing the petitioner to 
submit: (1) an organizational chart which lists all positions in the U.S. entity; (2) a list of all employee 
positions, including requirements and job duties for each position; (3) a list of all of the beneficiary's duties 
and the percentage of time spent on each; and (4) copies of quarterly tax returns for the past year. 
In a response dated June 15, 2004, the petitioner included a statement containing the following description of 
the beneficiary's duties as marketing manager: 
In charge of the operations of the Marketing Department. 
Creates and executes the sales and marketing plan. 
Develops the sales team and distribution network. 
Develop department policies, procedures, and training programs. 
Manage and handles all sales and marketing operations of the company. 
Supervises the personnel in her department. 
Responsible for providing diversified Marketing and Sales and facilities support. Coordinates 
Facility, and Support functions. 
SRC 04 110 51893 
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supervises lower-level marketing and sales personnel as well as proveyors [sic] or contract 
employees 
plan, coordinate and supervise marketing and sales support services. Review all documentation of 
incoming merchandise for action and outgoing merchandise for proper inventory purposes. 
Maintain a reliable and effective inventory system. 
Review, process and archive merchandise clearances, and access database. 
Manages the marketing and sales functions. 
Is responsible for the acquisition of merchandise. 
Select, hire and train personnel. 
Designs and implements systems and internal controls. Makes recommendations in management 
on changes and improvements to inventory systems. 
Responsible for general administrative functions, including correspondence, coordination of 
vendors and maintenance of office equipment. 
Assists with maintaining, updating and reporting on all company inventory transactions. 
Responsible for schedule sensitive ordering of all products and maintaining inventory levels; acts 
as point of contact for vendors in resolving problems related to sales, shipping and delivery. 
Responsible for facilities management. 
Performs other duties as needed. 
Is responsible for the day-to-day marketing and sales operations of the corporation, 
Hires and supervises all the staff of this Department. 
Coordinates all sales workers, 
Routinely handles unusual problems under difficult circumstances in what is sometimes an 
unsettled environment. 
Acts as liaison between management level and clients and prQveyors [sic], 
Maintains transactions in accordance with national standards and general manager's 
recommendations. 
Provides the General Manager and the board of trustees with marketing and sales information as 
required; identifies resources; prepares applications; assists the General Manager in campaigns; 
participates in the preparation and maintenance of the corporation's marketing budget; maintains 
inventory; maintains good business relationships with clients and proveyors [sic], institutions, 
credit card companies; and maintains good corporate relationships with companies doing business 
with. 
Secures and manages merchandise permits as required; Meets all reporting obligations and fills 
requests from individuals. 
The percentage of time she has spent performing these duties are: 
Supervising employees, 60%; Organizing the Marketing Department of the company; Preparing 
marketing plans and policies; direct the organizational marketing goals, objectives, and budgets, 10% 
of her time; 
Controlling the marketing operations of the company; keeping record of the doings of the marketing 
department of the company, 10%; 
SRC 04 110 51893 
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Handling marketing management functions, preparing reports, overseeing Purchases, sales, and 
exports 10%; 
Attending Trade Shows, Meeting with the General Manager and clients, 5%; 
Reporting all operations, keeping the General Manager advised of the needs of the marketing 
department of the company, making recommendations, 5%. 
The petitioner provided a lengthy job description for the beneficiary's immediate supervisor, the general 
manager, and noted the beneficiary supervises a marketing assistant and a sales supervisor. The petitioner 
indicated that the marketing assistant: maintains contact with the foreign parent company to supply them with 
the articles they need; looks for and contracts with suppliers; and is in charge of import and export 
documentation and customs. The petitioner stated that the sales supervisor is in charge of the day-to-day sales 
and daily control of inventory, and is responsible for contacting and assists clients. 
Although the director requested that the petitioner submit quarterly wage reports for the previous three 
quarters, the petitioner re-submitted its Florida Form UCT-6 for the fourth quarter of 2003 only, and provided 
its IRS Form 941, Employer's Quarterly Federal Tax Return, for the same period, also showing total wages of 
$1,236. The Form UCT-6 identifies the beneficiary, the marketing assistant and the sales supervisor, but no 
other employees as of December 3 1,2003. 
The petitioner also submitted an organizational chart depicting the beneficiary supervising the marketing 
assistant and sales supervisor, and reporting to the general manager, who in turn reports to the president and 
board of directors. The chart also depicts a legal advisor and an accountant subordinate to the president and 
general manager. 
The director denied the petition on December 21, 2004, concluding that the petitioner did not establish that 
the beneficiary would be employed in a qualifying managerial or executive capacity under the extended 
petition. The director noted that no evidence was provided to show that the United States office employs "the 
staff required to support an L-1A manager." The director noted that although the petitioner listed seven 
positions on its organizational chart, the petitioner only submitted evidence that it employs two individuals in 
addition to the beneficiary. The director determined that the beneficiary would be engaged primarily in the 
day-to-day operations of the business without managing any professional or managerial subordinates. 
On appeal, the petitioner asserts that the beneficiary performs "duties of a managerial/executive capacity," 
controls the work of professionals in the field, and manages the company's marketing department. The 
petitioner claims that the beneficiary manages a sales manager (the individual previously designated as a 
"marketing assistant"), a marketing manager (the individual previously identified as a "sales supervisor"), and 
one other employee, who was not identified in the petitioner's previous employee list. The petitioner noted 
that two of these employees attend community college and one possesses an associate's degree. The petitioner 
concludes that the beneficiary "supervises the employees who see the day-to-day operations of the activity or 
function for which the employee has authority and she has a [sic] professional and managerial subordinates." 
The petitioner also submits letters from its accountant, its general manager, and the foreign entity's treasurer, 
all of whom confirm the beneficiary's position as marketing manager, and noting that she devotes 80 percent 
SRC 04 110 51893 
Page 7 
of her time supervising personnel. The petitioner submits its Florida Form UCT-6, Employer's Quarterly 
Report, for the fourth quarter of 2004, which shows that the company employed four employees during the 
quarter and paid total wages of $2,040, with each employee earning between $480 and $530 for the three- 
month period. The petitioner also provides a copy of its IRS Form 940, Employer's Annual Federal 
Unemployment Tax Return, showing $2,040 paid in wages for the entire 2004 year. 
Finally, the petitioner asserts that it recently invested in another business, , and 
submits a copy of the bill of sale, a stock certificate transferring shares to the petitioning company, and a copy 
of the lease for the business premises for the claimed acquired company. The bill of sale and stock transfer are 
dated January 3,2005. 
Upon review, the petitioner's assertions are not persuasive. The petitioner has not established that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
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. $ 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. 
While the petitioner provided a lengthy description of the beneficiary's duties in response to the request for 
evidence, the description is vague and repetitive, and includes a number of duties which are not managerial or 
executive in nature. For example, the petitioner states that the beneficiary is responsible for: designing 
implementing and maintaining inventory systems; reviewing, processing and archiving merchandise 
clearances; acquiring merchandise; coordinating facilities support functions and "facilities management"; 
assisting with updating and reporting all inventory transactions; performing "general administrative 
functions" including correspondence, routine interaction with vendors, and office equipment maintenance; 
"schedule sensitive ordering of a1 products"; and acting as a liaison between management and clients. This 
description suggests that the beneficiary is directly responsible for the company's day-to-day purchasing, 
administrative/clerical and inventory functions, and these duties cannot be considered managerial or executive 
in nature. It is unclear from the record how much time the beneficiary allocates to these non-qualifying duties. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that her duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Here, the petitioner provided a breakdown of the time the beneficiary would devote to various 
duties, but failed to include the majority of the listed duties, including all of the non-qualifymg duties listed 
above, in its breakdown. Therefore, the petitioner has not provided a credible description of what proportion 
of the beneficiary's duties would be managerial functions and what proportion would be non-managerial. See 
Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). The petitioner lists the beneficiary's duties 
as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on the administrative and operational tasks. 
The remainder of the beneficiary's description includes duties associated with "managing" the company's 
sales and marketing activities through "lower-level" marketing and sales personnel. While it appears that the 
beneficiary may exercise discretion over the sales function, the record does not persuasively demonstrate that 
SRC 04 110 51893 
Page 8 
the beneficiary regularly supervises lower-level employees who relieved her from performing the company's 
day-to-day sales and marketing tasks. The beneficiary was initially granted L-1A status to open the 
petitioner's new office in March 2003. The petitioner paid total wages of $1,236 in 2003 and $2,040 in 2004, 
and only paid wages during the last quarter of each year. There is no evidence that the petitioner paid wages 
to any employees during the first quarter of 2004, the quarter in which the petition was filed. The petitioner 
has not substantiated its claim that the beneficiary supervises three full-time subordinates, or its various 
claims that the beneficiary devotes 60 or 80 percent of her time to supervising professional and managerial 
personnel. 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 Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, doubt 
cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 
591 (BIA 1988). 
Because there is no evidence that the petitioner employed other employees at the time the petition was filed, 
the AAO need not consider whether the beneficiary's claimed subordinates served in supervisory, 
professional or managerial positions. See section 101(a)(44)(A)(ii) of the Act. Nor is there evidence that the 
beneficiary primarily managed a function of the petitioning organization. The term "function manager" 
applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead 
is primarily responsible for managing an "essential function" within the organization. See section 
lOl(a)(U)(A)(ii) of the Act, 8 U.S.C. fj 1101(a)(44)(A)(ii). 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. As discussed above, the petitioner has not established this essential element of 
eligibility. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. fj 1 101 (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 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 staffing 
levels of the petitioner. See 8 C.F.R. fj 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. fj 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 from 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
To the extent that the petitioning company was doing business, there is no evidence of any employees to staff 
it at the time of filing other than the beneficiary and perhaps the other company officers, one of whom is 
identified as the company's general manager. Considering that the petitioner operates a retail store that 
appears to be open daily, it reasonably requires employees to order and stock merchandise, monitor and 
maintain inventory, receive deliveries, handle customer transactions, perform day-to-day administrative and 
SRC 04 110 51893 
Page 9 
financial tasks such as banking and record keeping, and other routine operational duties associated with the 
retail business. It does not appear that the reasonable needs of the petitioning company might plausibly be met 
by the services of the beneficiary as a marketing manager and a general manager. Based on the record of 
proceeding, it must be assumed, and has not been shown to be otherwise, that the beneficiary's duties are 
primarily composed of non-qualifying sales and marketing duties, other operational duties, and administrative 
tasks. An employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology Int 'I., 19 I&N Dec. 593,604 (Comm. 1988). 
The AAO acknowledges the submission of documentation on appeal related to the petitioner's purchase of a 
50 percent interest in another company that currently operates a retail store. Based on the evidence submitted, 
the transaction took place approximately nine months subsequent to the filing of this petition. The petitioner 
must establish eligibility at the time of filing the nonimmigrant 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 
ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
In sum, the record is not persuasive in demonstrating that the beneficiary has been or will be employed in a 
primarily managerial or executive capacity. As noted above, 8 C.F.R. 8 214.2(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. For this reason, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains solely with the 
petitioner. Section 291 of the Act, 8 U.S.C. €j 1361. Here, the petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.