dismissed L-1A Case: Import/Wholesale

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PETITTON: Pctit ion for a tlo~~irmnigl-ant Worker Pursuant to Section 10 1 (a)(lS)(L) of the 
11-ntnigi;ttiun and Nationality Act. 8 U.S.C. 9 1101(a)(15)(L) 
ON WEI-WAF OF: PETITTOIQ~~?: 
This is the decision of the Adnliltrstliltive Appeals Office in your case. All documents have been 
returned to the office that origin;l!ly decided your case. Any further inquiry must be made to that 
office. 
/ i 
I 
<-, / 
j - , ; iF,i @Zgc/i4 = b~+..------- 7 Robert P. Wiernann, S:lirector 
Administrative Appeals (3ffice 
DISCUSSION: The noniinmigrant visa petition was denied by the Director, Texas Service 
Center, and is now becore the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner,, endeavors to classify the beneficiary as a manager or 
executive pursuant to se,ction 101(a)(15)(L2) of the Immigration and NationaIity Act (the Act), 8 
U.S.C. 4 1 lOl(n)( l5)il .).I Thc pclitioncr claims to be abranch of-), 
located ill l+leital ,~IIL! claims to be engaged in the import, wholesale, and distribution of handmade 
wocic:~i gciiris and Iicndicrafts bilsia~es>~. 11 appears that the petitioner operates a gas station and 
convenience store. It seeks to extend the petition's validity and the beneficiary's stay for three 
years as the general director at an annual salary of $20,000. The petitioner was incorporated in the 
State of Texas on October 9. 1908 ,md claims to have four employees. 
On May 24, 2002. the director denied the petition. The director determined that the beneficiary 
will not be eiliployed in the United States in a primarily managerial or executive capacity. 
On appeal. the petitionc~r's counsel states that the beneficiary is employed in a managerial and 
execulivc: poc;itrort 
To establish L-1 eligibility 1.11nder section 101(a)(15)(L) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 ilOl(a)(15)(L,). the petitioner must meet certain criteria. Specifically, within three 
years preceding the beneficiary's application for admission into the United States, a qualifying 
organization must have emnployed' the beneficiary in a qualifying nunagerial or executive capacity, or 
in a specialized hlowlcdge capacity, for one continuous year. Furthermore, the beneficiary must seek 
to enter the United States temporarily to continue rendering his or her services to tile same employer 
or a subsidiary or affiliate thereof' in a managerial, executive, or specialized knowledge capacity. 
In relevant parl. t!~e 1,egulations at 8 C F.R. 5 214.2(1)(3) state that an individual petition filed on 
Form I-1?1 st~all l~e aczompanied by: 
(i) Evidence that the petitioner and the 01-ganization which employed or 
will ernploy the alien art: qualiCying organizations as defined in paragraph 
(I)( l )(ii)(G) of this section; 
(ii) Evidence that the alien wjll be employed in an executive, managerial, or 
specialized knowledge capcity, including a detailed description of the services 
to be performed. 
-. -- -. -- - - - --a - - 
1 The AAO notes that on Form 1-129, the petitioner indicated that it seeks to classify the 
beneficiary as an L-IB specialized knowledge worker. The alien was previously granted L-1B 
status from Mii) 2% !999 tc) I;ebru2sy 1, 2000 and from February 2, 2000 until February 2002. 
However, on appeal, cuunsel's brief and the petitioner's supporting lettcrs claim that the 
beneficiary will be employed in a ~nartagerial and executive capacity. Therefore, this decision will 
only address the issue of wl~ether t11c beneficiary is employed in a primarily manager or executive 
capacity. 
The issue in this proceeding is whether the beneficiary will be employed in a primarily managerial or 
executive capacity. Section 10J (a)(44)(8) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The tcrm "lnanagerial capacity" means an assignment within an organization in which the 
employee primarily-. 
(i.) managcs the organization, or a department, subdivision, function. or ' 
rornpoilpnt c4 tile organization; 
(i~.) superviscs and controls the work of other supervisory, professional, or 
managerial ealployees. or manages an essential function within the organization, or a 
depar tmen1 or subdivision of the organization; 
(iii.) if another enlployee or other employees arc directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions (such 
as promotion and leave autt~orization). or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
func:tlon lna[l,i~ed; and 
(iv.) exercises discretion over the day-today operations of the activity or function 
for which thc errrployee 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 1 IOl(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primal ily 
(i.) directs the management of the orgatlization or a major component or 
function of the organization; 
(ii.) establishes the goals and policies of thc organization, component, or 
function; 
(iii.) exercises wide latit~lde in discretionary decision-making: and 
(iv.) receivc,s only gcneral supervision or direction from higher level 
execulives, the board of directors, or stockholders of the organization. 
On February 12, 2002, the pctitionem filed Form 1-129. On Form 1-129, the petitioner described 
, the beneficiary's [J.S. duties as "[the beneficiary] ,makes policy decisions, managing, directing, 
supervising LJS Branch including hiring. firing of employees. deal and negotiate and contract with 
customers." In addition, in a letter of support, the beneficinry's duties are described as: 
i 
Page 4. 
o Plan, manage, and make policy decision to secure the growth of the 
cornpany under his management. 
(P Make policy decisions regarding the ~nanagement and the operation of this 
branch office, 1 
@ Negotiate deals 
e h'iandgc: the cash flow of the company 
Q Hirc and fire ernployecs. decide their benefits 
0 Confer and repott directly to the board of director in Nepal. 
On March 7,2002, the director requested additional evidence. ln particular, the director requested 
a description of the beneficiary's U.S. duties, percentage of time spent in each of the listed duties, 
the number of subordinate managers and employees. and their job titles. 
In response to the request for additional evidence, the petitioner described the beneficiary's duties 
in an April 3. 2002 letter as: 
c 10%: Making policy decisions regarding the management and operation 
of ths office and developing market strategy. 
o 10%: Negotiating dt:als, quality control of goods and services, signing 
contracts, managing cash flows. 
o 25%: Conferring with managers of the parent company, regarding 
prciioction, design and quality in acco~.dance to cursent American rnarket 
taste arid setting prices, analyzing and evaluating market trends, 
desigr~ing feasibility and draft design, and reporting to the board of 
directors in Nepal. 
o 50%: Advertising, promotional activities such as getting in touch with 
regular and prospective clients direct and through correspondence, 
telephone, Internet, providing samnples, observing and participating in . 
shows and exhibitions. 
5%: D2y to day administration. 
In addition, the petitioner claimed that "as the business expands, it plans to hire subordinate 
employees in rhe branch office silch as a managcr, an accountant, and a secretary." The petitioner 
claimed that the beneficii~ry supervises the following employees: 
a. Manager (not hired yet) 
b. Secrelary to the Director (not hired yet) 
I c. Accountant 
d. Officc Executives:(2) already hired 1 
On May 24, 2002, the director denied the petition concludirlg that the petitioner had not 
established that the beneficiary will not be performing duties in a primarily managerial or 
executive capacity for the United States entity. 
On appeal tht: [etitioiler's counsel states that the beneficiary is employed in a managerial and 
execulive capacity. Lunsel reiterates the duties the beneficiary performs. Couilsel also states that 
the beneficiary, "performs executive duties which include managing, directing, making decisions 
regarding the operation and policy of the company. and supervising and directing, hiring and 
firing personnel, and eslablishing the goals and policies of the company under his sole 
discretion." 
On review, the petitioner has not established that the beneficiary will be employed in a primarily 
executive or managerial capacity. In exanlining 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. 
9 214.2(1)(3)(ii) T!K petitioner has provided a general and nonspecific description of the 
beneficiary !; I i.S de!tlr:s. For example, the petitioner states that the beneficiary's duties include 
planning, managing, establishing goals, and making po!icy decision. The petitioner did not, 
however, define thc i?cneficiary's goals, plans, or policies. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter qf Sofici, 22 I&N Dec. 158. 165 (Comm. 1998)(citing Matter of Treasure 
Cruji of Califontiiz. 14 IRrN Dec. 190 (Reg. Comm. 1972)). 
Further, the petitioner generally paraphrased the statutory definition of executive capacity. See 
section 101(a)(44)(A) of the Act, 8 1J.S.C. Ij 1 IC)l(a)(44)(A). For instance, the petitioner depicted 
the beneficiary as directing the company, establishing the goals and policies of the company, and 
exercising sole d1scrc:ionary in decision making. Howcver, conclusory assertions regarding the 
beneficiary's empJoynlent.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. Sava. 724 
F. Supp. 1103. 1108 CE.II.N.Y. 1989, aff'd. 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Irzc. v. 
Meissner, 1997 WI, 188942 at "5 (S D.N.Y.). 
In addition, the petitioner describes tile beneficiary's primary U.S. duties as dedicating 50 percent 
of his time to advertising and promotional activities, 25 percent of his time to analyzing and 
evaluating market trends, and draft design activities, and 10 percent of his time to developing 
market strategies and negotiating deals. This description indicates that the beneficiary spends 85 
percent of his time yetforming the d4y tasks of the company; therefore, the beneficiary is not 
employed in a primarily managerial or executive capacity. An employee who primarily performs 
the tasks necessary to produce a product or to provide services is not considered to be employed 
in a rnanagerial capacity. SPC ~C~LC~~CP. ?f ChurcIz Scie/ztology Intei-lzational, 19 I&N Dec. 593, 604 
(Comrn. 1988). 
The petitioner also clajn~s that "as the business expands it plans to hre some subordinate 
enlployees in the branch office such as the manager, accountant, secretary, and one office 
execurive who will be under the control of the beneficiary." However, 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. Marter rfMichelin Tire Cbrp., 17 I&N Ilec. 248 (Reg. Comm. 1978). 
In sum, the petitioner failed to provide a sufficiently comprehensive and detailed description of 
the beneficiary's proposed responsibilities. Thus, the petitioner did not provide evidence 
si~fficient to mhet ti,:. burden of proof. See Matter of Sofici, 22 I&N Dec. at 165. Second, as 
demol~stratcd above. the beneficiary will be largely performing tasks necessary to produce a 
product or provide services; thus, the beneficiary is not employed in a primarily managerial or 
executive capacity. See .+fatter i$Church Scienrology Intei*rzationczl, 19 I&N Dec. at 604. 
Finally, a critical analysis of the nature of the petitioner's business further undermines counsel's 
assertion that the beneficiary is e~vployed in a managerial or executive capacity. At the time of 
filing, the petitioner operated a gas station and convenience store and claimed to employ the 
beneficiary, an accountant, and an "office executrve" whose duties have not been described. 
There is no mention of any cashiers, clerks, supervisors, or a store manager working in the 
petitioner's stor?. Ai-lmrdingly, it is evident from the record that the beneficiary and his two 
subordinates rntrst ac~uitily be engaged in routine 11011-qualifying tasks required for the operation 
of a retail store. Doubt cast cri any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliiihility and sufficiency of the rcrnaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec 582, 59 1 (BIA 1988). The AAO is therefore left to 
question the validity of the remainder of the beneficiq's claimed duties. . 
After careful consideration of the evidence, the AAO concludes that the beneficiary will not be 
employed in a primarily managerial or executive capacity. For this reason, the petition may not be 
approved. 
Beyond the dccision of tlzt director, the AAO is not persuaded that a qualifying relationship exists 
between the petitioner and foreign entity. 'The petitioner claims to he a branch office of the 
foreign entity. In defin~ng the nonimmlgrant- classification, the regulations specifically provide for 
the temporary admission of an intraconipar~y transferee "to the United States to be employed by a 
parent. bmnch, affiliate. or subsidiary of [the foreign firm. corporation, or other legal entity]." 8 
C.F.R. !j 214.2(1)(1)(i) (ernphasls added). The regulations define the term "branch" as "an 
ope~ating division or office of tlie same organ~zation housed in a different location." 8 C.F.R. $ 
214.2(1)(l)(ii)(J). CIS has recognized that the branch otf~ce of a foreign corporation may file a 
non~mmigrant petition for an inrracompariy transferee. See Matter oj Kloetti, 18 I&N Dec. 295 
(Reg. Comm. 1981); Marter of LeBlanc, 13 I&N Dec. 816 (Keg. Cormn. 1971); Matter of Schick, 
13 1&N Dec. 647 (Keg:. Comm. 1970); ~ee also Matle~. of Penner, 18 I&N Dec. 49, 54 (Cornm. 
1982)(stating that a Canadiart corporation may not petition for L-1B employees who are directly 
employed by the Canadian office rather than a IJnited States office). When a foreign company 
establishes a branch in the IJnited States. that branch is bound to the parent company through 
cornmon ownership :id management. A branch that is authorized to do business under United 
States law bec.omes, 111 effect, part uf the ndtional industry. Matter of Schick, supm at 649-50. 
If the petitioner subrrits evidence to show that it is incorporated in the United States, then that 
entity will not qualify as "an . . off~ce of the same organization housed in a different location," 
since that corporation is a drstinct legal entity separate and apart from the foreign organization. 
See Matter of'rVl, 8 lKLN Dec. 24., 50 (BIA 1958, AG 1958); Matter of Ayhrodite Iiivestnzents 
Limited, 17 I&N Dec. 530 (Cornm. 1980); and Matter of Tessel, 17 I&N Dec. 63 1 (Act. Assoc. 
Comrn. 1980). If the claimed branch is incorporated in the United States, CIS must examine the 
ownership and control of that corporation to deteimine whether it qualifies as a subsidiary or 
affiliiit~ of ibt: <)verseas employer. 
The AAO notcs that there is insufficient evidence in the record to establish ownership of the 
petitioner. The petitioner was incorporated in the State of Texas on October 9, 1998. Therefore, 
the petitioner is not considercd a branch of the foreign entity. 1n addition, on Form 1-129, the 
petitioner indicated that the foreign entity owns 100 percent of the U.S. entity. However, the 2001 
Form 1120, U.S. Coa-porarion li~come Tax Return. Schedule K, does not indicate that a 
corporation owned SO percent or more of the U.S. entity's voting stock. The petitioner submitted 
no additional evidence to substantiate its claim that the foreign entity owns 100 percent of its 
stock. The lack of cLurent evidence and inconsistencies in the record leads the AAO to conclude 
that there is ini~affj!:~?~~~ evidence to establish that a qualifying relationship exists between the 
petitioner anti foreign entity. Again. going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
supra. In addition, it is incumbent upon the petitioner to resolve any inconsistencies in the record 
by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent ob-jective evidence pointing to where the truth 
lies. Matter of Hb, 19 I&N Dec. 82, 591-92 (BLA 1988). Rased on the above, the petitioner has 
not established that it bas a qualifying relationship with the foreign entity as required by 8 C.F.R. 
5 214.2(1)(3)(i). For this additional reason, the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the iLZO evlx if the Service Center does not identify all of the grounds for denial in 
the initial decision. Scc .Spencer Etttelpl-ises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(ED. Cal. 2001)- afd. 345 F.3d 653 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n, 9 
(2d Cir. 1989)(noting that the AAO rcviews appeals on a de lezo1,o basis). 
In visa petition ploczedings, the burden of proving eligibility for the benefit sought remains 
entirely with the ],etitio~~er. Section 291 of tht: ,4ct, 8 1J.S.C. 9 1361. Here, that burden has not been 
met. Accordingly, the appeal will be dlsmissed. 
ORDER: The appeal is dismissed.