dismissed L-1A Case: Import/Export And Travel Services

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: SRC 03 206 50591 Office: TEXAS SERVICE CENTER Date: DEC 0 1 ,nnr 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1(a)(15)(L) 
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. 
" - -- - - - - 
/'-- - Robe* Wiemann, Director 
Administrative Appeals Office 
SRC 03 206 50591 
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 is a Texas corporation engaged in the business of importing and distributing goods and 
providing travel services. The petitioner filed this nonimmigrant petition seeking to extend the employment 
of its president as an L-1A nonirnrnigrant intracompany transferee pursuant to section 101(a)(15)(L) of the 
8 U.S.C. 5 1101(a)(15)(L). The petitioner claims to be a 
subsidiary of located in Nepal. The beneficiary was initially granted a one-year 
States. The petitioner now seeks to extend the beneficiary's 
stay. The director denied the petition concluding that the petitioner failed to establish that the beneficiary 
would be employed in the United States in a managerial or executive capacity. 
On appeal, the petitioner disputes the director's findings and submits additional information to support its 
claim. Although the petitioner indicated in its Form I-290B that a brief would be submitted within 30 days, 
the AAO has received no additional evidence or information. As such, a decision regarding the issue of the 
petitioner's eligibility will be based on the record as presently constituted. 
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. 
Pursuant to 8 C.F.R. 5 214.2(1)(14)(ii) 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) 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 managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
At issue in this proceeding is whether the petitioner has established that the beneficiary would be employed 
primarily in a managerial or executive capacity. 
SRC 03 206 50591 
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Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee prirnarily- 
I. manages the organization, or a department, subdivision, function, or component 
of the organization; 
. . 
11. 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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
1. directs the management of the organization or a major component or function of 
the organization; 
. . 
11. establishes the goals and policies of the organization, component, or function; 
. . . 
in. 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 supplement to Form 1-129, the petitioner provided the following description of the beneficiary's 
proposed job duties: 
Manage U.S. subsidiary; negotiate with variuous [sic] agencies with trade and travel 
arrangement; establish and implement marketing policies; manage shipping and storage of 
imported goods; determine inventory levels; establish and implement accounting control; take 
necessary decision on the [sic] behalf of the company; evaluate the market trends with 
supporting business; control company administration. 
SRC 03 206 5059 1 
Page 4 
On September 16, 2003, the director issued a rpquest for additional evidence (RFE) instructing the petitioner 
to provide a list of duties performed by the beneficiary as well as a percentage breakdown of time spent on 
each duty. The petitioner was asked to discuss the job titles and job duties of any subordinates the beneficiary 
may have and to specifically identify who sells the petitioner's products or services and who handles the 
shipping and handling duties. 
The petitioner responded with a letier dated October 13, 2003, which contains the following list of the 
beneficiary's proposed duties: 
a. Manage [the] U[.]S. [slubsidiary and negotiate with various agencies with trade 
and travel arrangements. 
b. Establish and manage shipping and storage of imported goods; determine 
inventory level of merchandise. 
c. Establish administration and account control; make all necessary decisions on 
behalf of the company. 
d. Co-ordinate with Nepali [mlanagers of [the] parent company regarding trade and 
travel matter[s]; evaluate special orders [sic] packaging tour[s] from different 
countries; arrange arrival and departure policies for individual[s] outside the 
country. 
Although the petitioner stated that the beneficiary would spend between 40 and 45 hours carrying out the 
above responsibilities, it did not provide a percentage breakdown of time that would be spent on each of the 
beneficiary's individual duties. Additionally, the petitioner indicated that the beneficiary would handle 
negotiations with regard to trade and travel arrangements. However, the petitioner did not define this task 
within the context of its particular business. Thus, there is no indication as to what duties are actually 
involved in such negotiations. The petitioner also provided no explanation as to what it means to "evaluate 
special orders" with regard to tour packages. The petitioner did not explain what is meant by "special orders," 
nor did it specify the criteria for such evaluations. 
The petitioner indicated that the beneficiary has one subordinate employee whose duties include managing the 
office, answering phones, sending out correspondence, making deposits, and coordinating with customers. 
Employment of this employee is corroborated in the petitioner's quarterly report for the third quarter of 2003, 
the time period during which the petition was filed. 
On April 29,2004, the director denied the petition noting that the petitioner has operated for one year and can 
no longer be deemed a new office as defined in 8 C.F.R 214.2(1)(l)(ii). The director concluded that at the 
time the petition was filed the petitioner had not progressed beyond the initial stage of development and 
would not employ the beneficiary in a primarily managerial or executive capacity. Although the director also 
concluded that the petitioner had not established its ability to remunerate the beneficiary, the AAO hereby 
withdraws this comment, as it does not accurately reflect the statutory or regulatory requirements with regard 
to the benefit sought. Pursuant to 8 C.F.R 214.2(1)(3)(vi)(C) a petitioner seeking to employ a beneficiary in a 
new office in the specialized knowledge category is required to establish its ability to pay the beneficiary. 
SRC 03 206 50591 
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However, the petitioner in the instant matter is ineligible to file another new office petition on behalf of the 
beneficiary and seeks to employ him as a manage; or executive, not as a specialized knowledge individual. 
On appeal, counsel asserts that the petitioner currently has four employees, including the beneficiary, and 
briefly states the job duties of the four employees. The petitioner also submits its first quarterly wage report 
for 2004 identifying the four claimed employees. 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). In the instant matter, the petitioner previously indicated that it had two 
employees, including the beneficiary, at the time the petition was filed. As such, the two employees the 
petitioner hired after the Form 1-129 was filed cannot be considered as part of the petitioner's organizational 
hierarchy for the purpose of determining its eligibility for the benefit sought in this matter. 
Counsel also asserts that the regulations allow for a beneficiary that manages an essential function instead of 
personnel and claims that the beneficiary in the instant matter is responsible for the company's overall 
management. 
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 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e., identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 
8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
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. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comrn. 1988)). Thus, while a function manager is not required to supervise personnel, the petitioner must 
nevertheless establish that the petitioner has an adequate staff of employees or hires outside contractors to 
relieve the beneficiary from having to engage regularly in the performance of nonqualifying tasks. In this 
matter, the petitioner failed to provide a detailed explanation as to who actually performs the petitioner's daily 
essential tasks. Furthermore, the petitioner failed to identify the beneficiary's essential function with any 
degree of specificity. Merely stating that the beneficiary would be responsible for the "overall management" 
of the petitioner is not synonymous with identifying an essential function. 
Furthermore, while the right to hire and fire employees conveys a certain degree of discretionary authority, it 
does not suggest that the beneficiary's primary concern is handling matters and carrying out duties of a 
managerial or executive nature, particularly when the petitioner's organizational structure shows only two 
employees available to carry out the petitioner's essential and general operational tasks. 
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). 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. 
SRC 03 206 50591 
Page 6 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true 
nature of the employment. Id. In the present matter, the petitioner submitted a job description in response to 
the RFE, which suggests that the beneficiary would oversee shipping and storage of goods, maintain control 
over accounts, and establish arrival and departure policies. However, there is no indication that the petitioner 
employed anyone to actually carry out the shipping and storage-related duties, set up the accounts that the 
beneficiary would manage, or actually cany out the arrival and departure policies the beneficiary would 
establish. While the beneficiary submits a separate affidavit on appeal claiming that he currently oversees a 
marketing manager and a finance manager, neither of these positions was filled at the time the 1-129 petition 
was filed. Thus, the AAO must question who, if not the beneficiary, was actually carrying out the duties of 
the marketing and finance managers at the time the petition was filed. It is noted that 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). 
Additionally, the beneficiary's affidavit provides a less general list of his current duties. However, the 
beneficiary's current duties are performed with an expanded support staff. At the time the petition was filed, 
the petitioner's support staff did not include marketing and financial managers. As previously stated, the 
petitioner must establish eligibility at the time of filing the nonirnrnigrant visa petition. Matter of Michelin 
Tire Corp., 17 I&N Dec. 248. The record lacks a detailed description of the duties the beneficiary would 
have been performing at the time the petition was filed. 
The vague description of the beneficiary's position precludes the AAO from making a determination as to the 
nature of the duties the beneficiary would primarily perform. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to convey an understanding of what 
the beneficiary would actually do on a daily basis. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary would 
be employed in a primarily managerial or executive capacity. Although the petitioner indicates that it is a 
service provider, there is no clear indication as to who was actually providing the service at the time the 
petition was filed. The petitioner has not demonstrated that at the time the petition was filed it had reached or 
will reach a level of organizational complexity wherein the hiringlfiring of personnel, discretionary decision- 
making, and setting company goals and policies constitute significant components of the duties performed on 
a day-to-day basis. Nor does the record demonstrate that the beneficiary primarily manages an essential 
function of the organization. Based on the evidence furnished, it cannot be found that the beneficiary has 
been or will be employed primarily in a qualifying managerial or executive capacity. For this reason, the 
petition may not be approved. 
Beyond the decision of the director, the regulation aZ 8 C.F.R. $ 214.2(1)(14)(ii)(B) requires that the petitioner 
submit evidence that the United States entity has been doing business as defined in 8 C.F.R. 
5 214.2(1)(l)(ii)(H) for the previous year. In the instant matter, the record contains invoices for services 
rendered by the petitioner in August, September, and October of 2003. Although the petitioner submitted 
"Proforma" invoices for July 2002, September and October 2002, and July 2003 for services it expected to 
render, there is no indication that these services were actually rendered as anticipated. Additionally, even if 
the services were rendered, there is no evidence to show that they were consistently rendered on a monthly 
SRC 03 206 50591 
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basis from July 2002 to July 2003. Accordingly, the AAO concludes that the petitioner failed to establish that 
it had been doing business for one year prior to filing the petition. 
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. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th 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). As such, based on the additional grounds discussed above, this petition cannot be 
approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.