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

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
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 Of$ce ofildmrntstratrve Appeals, MS 2090 
Washington, DC 20529-2090 
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 U. S. Citizenship 
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File: WAC 08 022 501 19 Office: CALIFORNIA SERVICE CENTER Date: 1 1 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 3 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
uhn F. Grissom 
Acting Chief, Administrative Appeals Office 
WAC 08 022 501 19 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 4 1101(a)(15)(L). The petitioner, a Louisiana limited liability company, states that it intends to 
operate an import, retail and wholesale business. It claims to be a branch office of Goodluck Enterprises Pvt. 
Ltd., located in Pune, India. The petitioner seeks to employ the beneficiary as the vice president, sales and 
marketing administration, of its new office in the United States for a two-year period.' 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary has been 
employed by the foreign entity 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 it has submitted 
documentary evidence confirming the beneficiary's employment in an executive capacity with the foreign 
entity. The petitioner submits a brief and copies of previously submitted 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. 4 214.2(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 himther to perform the intended 
1 
Pursuant to the regulation at 8 C.F.R. 4 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
WAC 08 022 501 19 
Page 3 
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. 9 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary has been 
employed by the foreign entity in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 9 1 10 1 (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 
WAC 08 022 501 19 
Page 4 
(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. 3 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. 
The petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, that the beneficiary has been 
employed by the foreign entity since January 19, 2003, and that he is responsible for "managing the overall 
supervision of the organization, marketing, purchase, sales administration, etc." In a letter submitted in 
support of the petition, the petitioner indicated that the foreign entity's business activities include operating a 
department store, trading in general products and frozen foods, manufacturing, imports and exports, and 
ownership of apartments and a resort property. 
The director issued a request for additional evidence (RFE) on December 4, 2007, in which she requested, 
inter alia, additional evidence to establish that the beneficiary- has been employed by the foreign entity in a 
primarily managerial or executive capacity. Specifically, the director instructed the petitioner to submit: (1) a 
more detailed, specific description of the beneficiary's duties abroad, indicating the percentage of time spent 
on each of the listed duties; (2) a copy of the foreign entity's organizational chart listing all employees under 
the beneficiary's supervision by name and job title; and (3) a brief description of job duties, educational level 
and annual salaries for all employees under the beneficiary's supervision. The director also requested 
photographs depicting the foreign business in operation. 
In response to the director's request for a more detailed description of the beneficiary's duties, the petitioner 
stated that the beneficiary "worked with [the foreign entity] managing the company fully in [departments] of 
Sales and Administration." The petitioner submitted an organizational chart showing that the beneficiary 
serves as "directorlsenior marketing manager" of the foreign entity, reporting to the ownerlmanaging 
directorlproprietor. Other employees in the company include a human resources manager, an administrative 
manager, an accounts manager, a purchase manager, an office manager and an employee who serves as an 
office clerkltypist and purchase clerk. None of these employees appear to report to the beneficiary based on 
the management structure depicted in the organizational chart. 
The petitioner also submitted a copy of the beneficiary's resume, in which he describes his work experience as 
the following: "Working since 2003 as a profit center head of the business Premises and business owned and 
managed by family, and workers. Departmental stores, Exports and Internet browsing center." 
WAC 08 022 501 19 
Page 5 
The petitioner submitted photographs of the foreign entity in operation, which depict a store doing business as 
"Goodluck Shoppe & Enterprises Departmental Stores." 
The director denied the petition on May 27, 2008, concluding that the petitioner failed to establish that the 
beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. In 
denying the petition, the director emphasized that the petitioner failed to submit a detailed description of the 
beneficiary's duties as requested in the RFE, and therefore found that the record contains insufficient detail 
regarding the beneficiary's actual duties and the percentage of time he devotes to various duties. The director 
acknowledged the organizational chart submitted, but noted that the petitioner did not clearly indicate who the 
beneficiary supervises or provide the requested position descriptions for any subordinates. 
On appeal, the petitioner acknowledges the stated grounds for denial, and in response states: "the applicant is 
employed with the qualifying organization for more than one year in the last three years." The petitioner 
states that the beneficiary's employment abroad as an executive for one continuous year in the last three years 
"can be verified with the certificates issued by the Ministry of Commerce, Government of India and a letter 
from the Union Bank of India, stating the operation of the accounts of [the foreign entity] since 1994, as an 
executive signatory." The petitioner also discusses the petitioner's qualifying relationship with the foreign 
entity, and addresses "the discrepancies about the legitimate establishment of [the petitioning company] in the 
U.S.," issues that were not raised in the director's decision. 
Upon review, the petitioner has not established that the beneficiary has been employed by the foreign entity in 
a primarily managerial or executive capacity. 
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). 
 The petitioner's description of the 
job duties must clearly describe the duties performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
As noted by the director, the only information the petitioner has offered regarding the beneficiary's position 
with the foreign entity is a job title and a vague, one-sentence description of his duties, indicating that he 
manages "the overall supervision of the organization" including marketing, purchasing and sales. Although 
the petitioner has repeatedly asserted that the beneficiary's duties fall within the statutory definitions of 
managerial or executive capacity, it has provided no detailed description of the beneficiary's actual duties to 
support this claim, and no explanation of what duties the beneficiary performs with respect to the foreign 
entity's marketing, purchasing and sales functions. 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), afd, 905 F.2d 41 (2d. Cir. 1990). 
Furthermore, the director specifically advised the petitioner that its initial description of the beneficiary's 
duties was insufficient and instructed the petitioner to submit a comprehensive position description, and an 
explanation as to what percentage of time the beneficiary devotes to each of his job duties. The petitioner 
failed to submit the requested information in response, and instead simply stated that the beneficiary "worked 
with [the foreign entity] managing the company fully in [departments] of Sales and Administration." A 
beneficiary's "control," management or direction over a company cannot be assumed or considered 
"inherent" to his position merely on the basis of a job title or broadly-cast job responsibilities. Conclusory 
WAC 08 022 501 19 
Page 6 
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language 
of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
5 103.2(b)(14). For this reason, the petition cannot be approved. 
The AAO acknowledges that the petitioner submitted an organizational chart depicting the beneficiary as the 
"directorlsenior marketing manager" of the foreign entity. However, the chart does not appear to indicate that 
the beneficiary had any direct subordinates in this role, nor does the chart indicate that the foreign entity 
employed any lower-level sales or marketing staff. The lack of sales staff is particularly notable, given the 
photographs of the foreign entity depicting its operation of a retail store. The director had specifically 
instructed the petitioner to provide the names, job titles, job duties and educational backgrounds of any 
employees who worked under the beneficiary's supervision. Again, failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section lOl(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
lOl(a)(44)(A)(iv) of the Act; 8 C.F.R. 5 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 
 8 C.F.R. 5 214.2(1)(1)(ii)(B)(3). 
 The record as presently 
constituted is insufficient to establish that the beneficiary was engaged in the supervision of a subordinate 
staff of managers, professionals or supervisors, as it does not clearly show that the beneficiary supervised any 
subordinates, nor does it provide position descriptions for any company employees, without which the AAO 
cannot determine whether any of the lower-level staff are supervisors or professionals. The petitioner has 
given almost every employee in the foreign entity the title "manager"; however, an employee will not be 
considered to be a manager or supervisor simply because of a job title, or because he or she is arbitrarily 
placed on an organizational chart in a position superior to another employee. 
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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. fj 1 10 1 (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 detailed description of the duties to be performed in managing 
the essential function, 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. See 
8 C.F.R. 4 214.2(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. 
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function, as it 
has not provided a detailed description of the beneficiary's duties. Even if the petitioner had articulated a 
claim that the beneficiary manages the sales or marketing function, it must still establish that someone other 
than the beneficiary performs the day-to-day non-managerial duties associated with this function. As noted 
above, the petitioner does not claim to employ any sales or marketing staff. 
WAC 08 022 501 19 
Page 7 
The petitioner has not provided any further information regarding the beneficiary's actual duties or the 
organizational structure of the foreign entity in support of the appeal. Therefore, based on the foregoing 
discussion, the AAO concurs with the director's determination that the petitioner failed to establish that the 
beneficiary has been employed by the foreign entity in a primarily managerial or executive position. 
Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, there are several other unresolved issues in the record that would also 
prohibit a finding of eligibility in this matter. 
First, the AAO notes that the record as presently constituted does not contain sufficient evidence of a 
qualifying relationship between the U.S. petitioner and the beneficiary's claimed foreign employer, Goodluck 
Enterprises Pvt. Ltd. To establish a "qualifying relationship" under the Act and the regulations, the petitioner 
must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer 
(i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally 
section 101(a)(15)(L) of the Act; 8 C.F.R. 5 214.2(1). 
The petitioner claims to be a branch office of the foreign entity. The regulations define the term "branch" as 
"an operating division or office of the same organization housed in a different location." 8 C.F.R. 9 
2142(l)(l)(i)(J). USCIS has recognized that the branch office of a foreign corporation may file a 
nonimmigrant petition for an intracompany transferee. See Matter of Kloetti, 18 I&N Dec. 295 (Reg. Comm. 
1981); Matter of Leblanc, 13 I&N Dec. 816 (Reg. Comm. 1971); Matter of Schick, 13 I&N Dec. 647 (Reg. 
Comm. 1970); see also Matter of Penner, 18 I&N Dec. 49, 54 (Comm. 1982)(stating that a Canadian 
corporation may not petition for L-1B employees who are directly employed by the Canadian office rather 
than a United States office). When a foreign company establishes a branch in the United States, that branch is 
bound to the parent company through common ownership and management. A branch that is authorized to do 
business under United States law becomes, in effect, part of the national industry. Matter of Schick, supra at 
649-50. 
Probative evidence of a branch office would include the following: a state business license establishing that 
the foreign corporation is authorized to engage in business activities in the United States; copies of Internal 
Revenue Service (IRS) Form 1120-F, U.S. Income Tax Return of a Foreign Corporation; copies of IRS Form 
941, Employer's Quarterly Federal Tax Return, listing the branch office as the employer; copies of a lease for 
office space in the United States; and finally, any state tax forms that demonstrate that the petitioner is a 
branch office of a foreign entity. 
If the petitioner submits evidence to show that it is incorporated in the United States, then that entity will not 
qualify as "an . . . office of the same organization housed in a different location," since that corporation is a 
distinct legal entity separate and apart from the foreign organization. See Matter of M, 8 I&N Dec. 24, 50 
(BIA 195 8, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 53 0 (Comm. 1980); and Matter 
of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). If the claimed branch is incorporated in the United 
States, USCIS must examine the ownership and control of that corporation to determine whether it qualifies 
as a subsidiary or affiliate of the overseas employer. Here, the petitioner was established in Louisiana as a 
limited liability company, a legal entity separate from the foreign entity, and therefore it is not a branch of the 
Indian company. 
WAC 08 022 501 19 
Page 8 
The petitioner's limited liability company o erating agreement indicates that the 
 etitioning company is 
owned in equal parts by the beneficiary, 
 and. While the petitioner 
refers to the foreign entity as "Goodluck Enterprises Pvt. Ltd.," the petitioner has not submitted evidence to 
establish the existence. ownership and control of such comuanv. Rather, the evidence in the record indicates 
. - 
that "Goodluck ~nterprises" is a trade name registered in India by, a sole proprietor. 
Therefore, it appears that wholly owns the foreign entity, but owns only a 33.33% 
interest in the U.S. company. 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 51 percent of 
outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
In this case the U.S. entity is owned by three individuals, with no majority shareholder, and the foreign entity 
is owned by one individual. Absent documentary evidence such as voting proxies or agreements to vote in 
concert so as to establish a controlling interest, the petitioner has not established that the same legal entity, 
individual, or group of individuals controls both entities, and the companies do not qualify as affiliates. 
Although it appears that the three owners of petitioning company are related, this familial relationship does 
not constitute a qualifying relationship under the regulations. 
Second, the record does not contain sufficient evidence to establish how the petitioner's new office would 
grow to support a managerial or executive position within one year. The petitioner has not described the 
beneficiary's proposed duties in specific terms, nor has it clearly described the intended scope of the U.S. 
entity and its anticipated organizational structure. In addition, the petitioner has not submitted evidence 
showing the size of the United States investment and the financial ability of the foreign entity to remunerate 
the beneficiary and to commence doing business in the United States, as required by 8 C.F.R. 5 214.2(1)(3)(~). 
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)). 
Finally, the petitioner has not established that it has secured sufficient physical premises to house the new 
office, as required by 8 C.F.R. 5 214.2(1)(3)(~). The only executed lease agreement in the record is a 
residential lease agreement for a property located at in Vallejo, California, which was 
entered into by in December 2005. The lease agreement indicates that the premises are for the 
sole use as a residence by and his family. The petitioner submitted evidence that it obtained a 
business license from the City of Vallejo to operate an import'export business from this location as a "home 
occupation" on October 22,2007. The petitioner has claimed that it will be involved in importing, exporting, 
general processing and manufacturing, construction materials sales, aircraft charter, sales, leasing and spare 
parts, hospitality management, finance and real estate activities. The petitioner has not furnished a 
comprehensive description of its intended organizational structure or its physical space requirements, and the 
AAO cannot conclude that a home office would be sufficient for these purposes. The petitioner also claims to 
have leased a hotel located in Shreveport, Louisiana, but the record does not contain an executed agreement 
for this location. Based on this minimal documentation, it cannot be determined that the petitioner has secured 
sufficient physical premises to house the new office. 
WAC 08 022 501 19 
Page 9 
For all of these additional reasons, the petition cannot be approved. 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). The AAO maintains 
plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal from or review of the 
initial decision, the agency has all the powers which it would have in making the initial decision except as it 
may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 
1 149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g. 
Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if he or 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 at 1043. 
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.