dismissed L-1A Case: Import/Wholesale

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PILE: Office: TEXAS SERVICE CENTER Date: JUN 1 4 1005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
g/ Robert P. ~iemann, Director 
' Administrative Appeals Office 
i 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner, Rachiti Corporation, endeavors to classify the beneficiary as a manager or 
executive pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(~).' The petitioner claims to be a branch of Rachiti Enterprises Concern, 
located in Nepal and claims to be engaged in the import, wholesale, and distribution of handmade 
woolen goods and handicrafts business. It 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, 1998 and claims to have four employees. 
On May 24, 2002, the director denied the petition. The director determined that the beneficiary 
will not be employed in the United States in a primarily managerial or executive capacity. 
On appeal, the petitioner's counsel states that the beneficiary is employed in a managerial and 
executive position 
To establish L-1 eligibility under section 101(a)(15)(L) of the lmrnigration and Nationality Act (the 
Act), 8 U.S.C. § 1101(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 employed the beneficiary in a qualifying managerial or executive capacity, or 
in a specialized knowledge capacity, for one continuous year. Furthermore, 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. 
In relevant part, the regulations at 8 C.F.R. 5 214.2(1)(3) state 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. 
' The AAO notes that on Form 1-129, the petitioner indicated that it seeks to classify the 
beneficiary as an L-1B specialized knowledge worker. The alien was previously granted L-1B 
status from May 22, 1999 to February 1, 2000 and from February 2, 2000 until February 2002. 
However, on appeal, counsel's brief and the petitioner's supporting letters claim that the 
beneficiary will be employed in a managerial and executive capacity. Therefore, this decision will 
only address the issue of whether the beneficiary is employed in a primarily manager or executive 
capacity. 
The issue in this proceeding is whether the beneficiaty will be employed in a primarily managerial or 
executive capacity. Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(i.) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii.) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, or a 
department or subdivision of the organization; 
(iii.) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel actions (such 
as promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv.) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A frst-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), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(i.) directs the management of the organization or a major component or 
function of the organization; 
(ii.) establishes the goals and policies of the organization, component, or 
function; 
(iii.) exercises wide latitude in discretionary decision-making; and 
(iv.) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
On February 12, 2002, the petitioner filed Form 1-129. On Form 1-129, the petitioner described 
the beneficiary's U.S. duties as "[the beneficiary] -makes policy decisions, managing, directing, 
supervising US Branch including hiring, firing of employees, deal and negotiate and contract with 
customers." In addition, in a letter of support, the beneficiary's duties are described as: 
s- Page 4 
Plan, manage, and make policy decision to secure the growth of the 
company under his management. 
Make policy decisions regarding the management and the operation of this 
branch office, 
Negotiate deals 
Manage the cash flow of the company 
Hire and fire employees, decide their benefits 
Confer and report directly to the board of director in Nepal. 
On March 7,2002, the director requested additional evidence. In 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: 
10%: Making policy decisions regarding the management and operation 
of the office and developing market strategy. 
10%: Negotiating deals, quality control of goods and services, signing 
contracts, managing cash flows. 
25%: Conferring with managers of the parent company, regarding 
production, design and quality in accordance to current American market 
taste and setting prices, analyzing and evaluating market trends, 
designing feasibility and draft design, and reporting to the board of 
directors in Nepal. 
50%: Advertising, promotional activities such as getting in touch with 
regular and prospective clients direct and through correspondence, 
telephone, Internet, providing samples, observing and participating in 
shows and exhibitions. 
5%: Day to day administration. 
In addition, the petitioner claimed that "as the business expands, it plans to hire subordinate 
employees in the branch office such as a manager, an accountant, and a secretary." The petitioner 
claimed that the beneficiary supervises the following employees: 
a. Manager (not hired yet) 
b. Secretary to the Director (not hired yet) 
c. Accountant 
d. Office Executive~(2) already hired I 
On May 24, 2002, the director denied the petition concluding 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, the petitioner's counsel states that the beneficiary is employed in a managerial and 
executive capacity. Counsel reiterates the duties the beneficiary performs. Counsel 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 establishing 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 examining the executive or managerial capacity of the 
beneficiary, the AAO will look fust to the petitioner's description of the job duties. See 8 C.F.R. 
$ 214.2(1)(3)(ii). The petitioner has provided a general and nonspecific description of the 
beneficiary's U.S. duties. For example, the petitioner states that the beneficiary's duties include 
planning, managing, establishing goals, and making policy decision. The petitioner did not, 
however, define the beneficiary'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 of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998)(citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972)). 
Further, the petitioner generally paraphrased the statutory definition of executive capacity. See 
section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A). For instance, the petitioner depicted 
the beneficiary as directing the company, establishing the goals and policies of the company, and 
exercising sole discretionary in decision making. However, conclusory 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. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In addition, the petitioner describes the 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 performing the daily 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 managerial capacity. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Cornm. 1988). 
The petitioner also claims that "as the business expands it plans to hire some subordinate 
employees in the branch office such as the manager, accountant, secretary, and one office 
I executive who will be under the control of the beneficiary." However, the petitioner must 
establish eligibility at the time of filing the nonimrnigrant 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 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 
sufficient to meet the burden of proof. See Matter of Sofici, 22 I&N Dec. at 165. Second, as 
demonstrated 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 Matter of Church Scientology International, 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 employed 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 executive" whose duties have not been described. 
There is no mention of any cashiers, clerks, supervisors, or a store manager working in the 
petitioner's store. Accordingly, it is evident from the record that the beneficiary and his two 
subordinates must actually be engaged in routine non-qualifying tasks required for the operation 
of a retail store. 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). The AAO is therefore left to 
question the validity of the remainder of the beneficiary'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 decision of the director, the AAO is not persuaded that a qualifying relationship exists 
between the petitioner and foreign entity. The petitioner claims to be a branch office of the 
foreign entity. In defining the nonimrnigrant classification, the regulations specifically provide for 
the temporary admission of an intracompany transferee "to the United States to be employed by a 
parent, branch, affiliate, or subsidiary of [the foreign firm, corporation, or other legal entity]." 8 
C.F.R. § 214.2(1)(1)(i) (emphasis added). 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. 8 
214.2(1)(l)(ii)(J). CIS 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. Corn. 1981); Matter of LeBlanc, 13 I&N Dec. 8 16 (Reg. Comm. 1971); Matter of Schick, 
13 I&N Dec. 647 (Reg. Corn. 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. 
If the petitioner submits evidence to show that it is incorporated in the United States, then that 
entity will not qualify as "an . . . oKice 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 1958, AG 1958); Matter of Aphrodite Znvestments 
Limited, 17 I&N Dec. 530 (Cornrn. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. 
Cornrn. 1980). If the claimed branch is incorporated in the United States, CIS must examine the 
ownership and control of that corporation to determine whether it qualifies as a subsidiary or 
affiliate of the overseas employer. 
The AAO notes 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 considered a branch of the foreign entity. In 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. Corporation Income Tax Return, Schedule K, does not indicate that a 
corporation owned 50 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 current evidence and inconsistencies in the record leads the AAO to conclude 
that there is insufficient evidence to establish that a qualifying relationship exists between the 
petitioner and 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 Sofici, 
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 objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Based on the above, the petitioner has 
not established that it has a qualifying relationship with the foreign entity as required by 8 C.F.R. 
3 214.2(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 AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Entetprises, Znc. v. United States, 229 I?. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), afd. 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). 
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. 3 1361. Here, that burden has not been 
met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.