dismissed L-1A Case: Importation

iddfViw data deleted to 
prevent &1y unwarranted 
invasion d~ersonal shcy 
U.S. Department nf IIorneland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC 03 025 52092 Office: CALLFORNIA SERVICE CENTER Date: JUN 1 7 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
TNSTRUCTIONS : 
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. 
Robert P. Wiernann, ~i4ector 
Administrative Appeals Office 
WAC 03 025 52092 
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 AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation organized in the State of California 
that is engaged in the importation and claims that it is the 
subsidiary of Gallgent Trading Limited, located i The beneficiary was initially 
extended granted a two-year period of stay to open 
for an additional three years. The petitioner now seeks to extend the beneficiary's stay for two more years. 
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary has 
been and will continue to be employed in the United States in a primarily managerial or executive capacity; 
(2) the petitioner was doing business as required by the regulations; and (3) the petitioner had the financial 
ability to remunerate the beneficiary. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner contends that the 
director acted arbitrarily in denying the petition, and that the denial was not logical. In support of these 
contentions, counsel submits a brief and additional evidence for consideration. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10l(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 
WAC 03 025 52092 
Page 3 
education, training, and employment qualifies hirnlher to perform the intended 
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. 5 214.2(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 first issue in this matter is whether 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. 9 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 
WAC 03 025 52092 
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. 9 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. 
In the initial petition, counsel submitted a letter dated October 18, 2003 from the petitioner detailing the 
nature of the beneficiary's duties. Specifically, the petitioner stated: 
Under [the beneficiary's] direction, the business volume of the U.S. subsidiary have [sic] 
grown tremendously. In consideration of [the beneficiary's] excellent performance, our 
company had filed an application to extend [the beneficiary's] L-1A visa . . . . 
Under [the beneficiary's] policy, company operation, and business strategy, the sales volume 
of our business expanded rapidly. The gross sales of our company in the year 2001 raised 
[sic] to $498,543.00. The current asset of our company as of 07-30-2002 reached 
$196,277.2 1. These encouraging figures ensured us promising future sales revenue. In 
addition, there are large on-going contract negotiations and projects to which [the 
beneficiary] is personally involved and has in-depth knowledge. 
On January 8, 2003, the director requested additional evidence pertaining to the nature of the beneficiary's 
position. Specifically, the director requested a description of the beneficiary's day-to-day duties for the past 6 
months, and requested clarification as to the nature of the petitioner's business and the beneficiary's role 
therein. 
In a response dated March 25,2002, the petitioner, through counsel, submitted a detailed response to all of the 
points raised by the director. With respect to the beneficiary's duties, the petitioner stated: 
WAC 03 025 52092 
Page 5 
The beneficiary's responsibilities included: To develop and maintain sales progress. To 
coordinate sales distribution by establishing sales territories, quotas, and sales. To advise 
dealers distributors, and clients concerning sales and advertising techniques. To analyzes 
[sic] sales statistics to formulate policy and to assist dealers in promoting sales. To review 
analyses to determine customer needs, volume potential, price schedules, and dlscount rates. 
To manage product simplification and standardization to eliminate unprofitable items from 
sales lines. To represent company at trade association meetings to promote products. To 
prepare periodic sales reports showing sales volumes and potential sales. To recommend 
budgets and expenditures. 
The petitioner further stated that the beneficiary acted as the sales manager for the U.S. entity, and 
advised that in the capacity of sales manager, his duties could be described as follows: 
The beneficiary usually spends the morning hours in the office in managing the sales 
personnel and matters. He allots time to process paper works such as reviewing and 
responding to correspondence; reports; contracts; and approving budget and sales proposals. 
He also receives and returns telephone calls from customers and business associates. 
Approximately once in a week, or when such need exists, he holds a regular meeting 
discussing sales matters, and to review and to discuss if promotional methods are necessary to 
boost the company sales volume. 
The beneficiary usually spends the afternoon hours in the field, such as visiting markets to 
inspect our company products which are put on display by our vendors, or visiting our 
business associates discussing and negotiating terms of purchasing contracts. The beneficiary 
usually sets aside the late afternoon hours for appointments and meetings with visitors. 
The beneficiary has also made business trips to attend food product meetings, to participate in 
trade shows and conventions, and to present progress report to our parent company. 
The petitioner further stated that their peak season is during the holidays, namely, the Chinese and 
Vietnamese traditional holidays such as the Lunar New Year. During this period, the petitioner stated that the 
beneficiary is busy "gathering prices of competitors; checking and comparing product qualities, approving 
product prices; confirming purchase orders, negotiating and approving terms for discount and commission, 
inspecting product displays at vendors' markets, and participating in sales promotion activities." 
On May 13, 2003, the director denied the petition. The director, who reviewed the record to determine 
eligibility under both managerial and executive capacity, found that the evidence in the record was 
insufficient to warrant a finding that the beneficiary had been and would continue to be functioning in a 
capacity that was primarily managerial or executive. Specifically, the director found that the petitioner did 
not employ a sufficient staff to relieve the beneficiary form performing non-qualifying duties. Additionally, 
the director found that the beneficiary was involved in substantially all of the day-to-day duties of the 
business as opposed to merely directing such actions through other managers, supervisors, or professional 
employees. 
WAC 03 025 52092 
Page 6 
On appeal, counsel asserts that the director's conclusion were erroneous, and submits the petitioner's quarterly 
tax returns for the auarters ending December 3 1. 2002 and March 3 1, 2003. Since these returns list another 
the beneficiary's eligibility. Specifically, counsel states that these documents "support the fact that the 
petitioning corporation maintained other employees performing clerical duties to subordinate [sic] the 
beneficiary." 
Upon review, counsel's assertions are not persuasive. 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. 
2142(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. The burden is on the petitioner to specifically state whether the beneficiary is primarily 
employed in a managerial or executive capacity. 
As previously stated, the initial description of the beneficiary's duties was insufficient. Consequently, the 
director requested additional details regarding the beneficiary's duties and an example of a typical day in the 
beneficiary's job. The petitioner's response further clarified the beneficiary's duties, and explained that the 
beneficiary would devote a large portion of his time doing market research and dealing directly with clients 
and vendors. The response further indicated that the beneficiary would be performing customer service and 
administrative duties. Although a detailed description of the beneficiary's duties was provided, the petitioner 
failed to provide a breakdown in terms of the percentage of time he would devote to each duty. 
Whether the beneficiary is a manager 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. In this case, counsel alleges that the beneficiary is a manager by virtue of his position title, 
experience, and associated duties. However, the stated duties identified in the record do not substantiate the 
claims of the petitioner and counsel for two reasons. First, the petitioner fails to document what proportion of 
the beneficiary's duties would be managerial or executive functions and what proportion would be 
non-managerial and non-executive. Although the petitioner provided an updated overview of the 
beneficiary's duties while in the U.S., it failed to provide a breakdown of the percentage of time spent on each 
of the identified duties. Consequently, it is impossible to determine, based on the current record, how much 
time the beneficiary will allocate to executive or managerial duties as opposed to the numerous non- 
qualifying duties listed in the response. The failure to provide this requested information is important because 
several of the beneficiary's daily tasks, such as representing the company at trade association meetings, 
participating in sales promotion activities, checking and comparing competitor prices, and receiving and 
returning calls fiom customers, do not fall directly under traditional managerial duties as defined in the 
regulations. 
Additionally, ~t appears that the beneficiary 1s directly responsible for generating the servlces of the business, 
since some of the other specified duties, namely, visiting markets to inspect company products and meeting 
with visitors, are essential services needed to establish a company's reputation in the industry. Furthermore, 
there is no evidence in the record, other than the quarterly tax returns submitted on appeal, that the pet~tioner 
WAC 03 025 52092 
Page 7 
employed any other individuals to relieve the beneficiary of these duties prior to the end of 2002. Therefore, 
absent evidence to the contrary, the beneficiary is directly responsible for generating the petitioner's business 
and potential sales and, thus, is personally ensuring that the petitioner's product andlor services penetrate the 
U.S. market. 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). 
Finally, the fact that there is no evidence of a subordinate staff further supports the conclusion that the 
beneficiary has not been employed in a primarily managerial or executive capacity. Although a company's 
size alone, without taking into account the reasonable needs of the organization, may not be the determining 
factor in denying classification as a multinational manager or executive, it is appropriate for Citizenship and 
Immigration Services (CIS) to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non- 
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See 9 101(a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C); see, e.g. 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. See id. 
As required by section 10l(a)(44)(C) of the Act, 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. To establish 
that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must 
specifically articulate why those needs are reasonable in light of its overall purpose and stage of development. 
In the present matter, the petitioner has not explained how the reasonable needs of the petitioning enterprise, 
which was established in 1996 and has employed the beneficiary for five years, justify the beneficiary's 
performance of non-managerial or non-executive duties, such as performing marketing duties and customer 
service tasks. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
1 Ol(a)(44)(A) and (B) of the Act, 8 U.S.C. 8 1 101(a)(44). The reasonable needs of the petitioner may justify 
a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 90 percent, 
but those needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying 
duties. Since there is no evidence that the petitioner employed any other individual until the final quarter of 
2002, the AAO must conclude that the majority of the beneficiary's time has been spent performing the 
essential non-managerial duties necessary to the running of the company.' The burden is on the petitioner to 
clearly establish that the beneficiary qualifies as a manager or executive. 
1 The AAO notes that according to the quarterly tax returns for the quarters ending December 3 1, 2002 and 
March 3 1, 2003, the petitioner hired a second employee. However, the nature of this person's position, as 
well as his duties and job title, have been ommitted from the record. Consequently, the AAO cannot 
WAC 03 025 52092 
Page 8 
Counsel further alleges that CIS overlooked the petitioning entity as a whole, and failed to take into account 
the duties of all employees named in the record. At the time the petition was filed, however, the petitioner 
only employed one other employee in addition to the beneficiary. Although the petitioner alleges that 
numerous subcontractors work for the company, and the petitioner has since hired other employees and will 
continue to do so, these assertions are misplaced and unpersuasive. The regulation at 8 C.F.R. 5 
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. If the business is not sufficiently operational after one year, the 
petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner did not reach the 
point where it could employ the beneficiary in a predominantly managerial or executive position by the end of 
this one-year period. 
For the reasons set forth above, the petitioner has failed to establish that the beneficiary's duties are primarily 
managerial or executive in nature. For this reason, the petition may not be approved. 
The second issue in this matter is whether the petitioner has been doing business as required by the regulations 
for the previous year. The regulation at 8 C.F.R. §214.2(1)(l)(ii)(H) defines the term "doing business" as "the 
regular, systematic, and continuous provision of goods andlor services by a qualifying organization and does not 
include the mere presence of an agent or office of the qualifying organization in the United States and abroad." 
In this matter, the petitioner claims that it is engaged in the importation and distnbution of food products. The 
director denied the petition, finding that the petitioner had failed to satisfy the regulatory requirements for 
doing business, and specifically noted the absence of customs and regulatory documentations pertaining to the 
import business. 
With the initlal petition, insufficient evidence of the petitioner's business practices was submitted. 
Consequently, in the request for evidence issued on January 8, 2003, the director requested additional 
information pertaining to the nature of the petitioner's business. Specifically, the director requested a 
description of the petitioner's business and the role of the beneficiary therein. In the response filed on March 
25, 2003, the petitioner submitted a large amount of documentation pertaining to the foreign entity, and a 
brief discussion of the U.S. business. 
determine whether this employee actually did relieve the beneficiary from performing non-qualifying tasks in 
the last quarter of 2002, because no details are provided regarding this person's duties. More importantly, 
however, the fact that an additional employee was hired at the time the beneficiary's visa was due to expire 
(the valid period was January 1, 2000 through December 31, 2002) does not establish the beneficiary's 
eligibility as a manager or executive, since he was require to run the business alone in 2000, 2001, and the 
majority of 2002. The records for the first quarter of 2003 are likewise unpersuasive, since 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 
of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
WAC 03 025 52092 
Page 9 
The director denied the petition on May 13, 2003, and specifically stated that the record failed to contain the 
company's Form 7525-V, and/or Shipper's Export Declaration for In-Transit Goods, Form 7513 or U.S. 
Customers Forms 7501, Entry Summary, and 301, Customs Bond. On appeal, counsel submits copies of the 
petitioner's Form 301 from 2000 and copies of its Forms 7501 from November and December 2002. 
On review of the evidence submitted, the AAO concludes that the petitioner failed to demonstrate that it had 
been doing business during the previous year. However, the AAO must first note that the director's denial did 
not thoroughly address the grounds for denying the petition on this basis. When denying a petition, a director 
has an affirmative duty to explain the specific reasons for the denial; this duty includes informing a petitioner 
why the evidence failed to satisfy its burden of proof pursuant to section 291 of the Act, 8 U.S.C. 9 1361. See 
8 C.F.R. 9 103.3(a)(l)(i). In this matter, the director merely stated that the record did not contain certain 
customs forms, but did not explain why this statement had any relevance to the decision. The AAO will 
endeavor to explain why the petitioner failed to satisfy its burden of proof in this matter. 
The record indicates that the beneficiary was granted an initial two-year period of stay from February 2, 1997 
to December 31, 1999 to open a new office. The record further indicates that his stay was extended for an 
additional period, from January 1, 2000 through December 31, 2002. The petitioner claimed that it would 
engage in the importation and distribution of food products. 
The record contains the following documentation regarding the business transactions for the petitioner during 
this period. For 1997, 1998, and 1999, a handful of shipping documents were submitted. There is no 
documentation whatsoever pertaining to the year 2000. For the year 2001, the record contains copies of 
invoices from January 23, 2001 and July 5, 2001. For the year 2002, the petitioner submitted a total of six 
invoices, one from April, two from June, one from July, one from August, and one from October. 
In the course of examining whether a petitioning company has been doing business as an import and export 
firm, it is reasonable to request that the company produce copies of documents that are required in the daily 
operation of the enterprise due to routine regulatory oversight. Upon the importation of goods into the United 
States, the Customs Form 7501, Entry Summary, serves to classify the goods under the Harmonized Tariff 
Schedules of the United States and to ascertain customs duties and taxes. The Customs Form 301, Customs 
Bond, serves to secure the payment of import duties and taxes upon entry of the goods into the United States. 
According to 19 C.F.R. 5 144.12, the Customs Form 7501 shall show the value, classification, and rate of 
duty for the imported goods as approved by the port director at the time the entry summary is filed. The 
regulation at 19 C.F.R. 5 144.13 states that the Customs Form 301 will be filed in the amount required by the 
port director to support the entry documentation. Although customs brokers or agents are frequently utilized 
in the import process, the ultimate consignee should-have access to these forms since they are liable for all 
import duties and taxes. Any company that is doing business through the regular, systematic, and continuous 
provision of goods through importation may reasonably be expected to submit copies of these forms to show 
that they are doing business as an import firm. In this case, there are no copies of such forms, aside from 
those submitted on appeal, to establish that the petitioner was regularly, systematically, and continuously 
providing goods through importation as it claims. 
WAC 03 025 52092 
Page 10 
In addition, it is clear that the petitioner also failed to regularly, systematically, and continuously provide 
goods through distribution during this period. Thus, the petitioner was not doing business during the relevant 
period as required by 8 C.F.R. tj 214.2(1)(14)(ii)(B). The AAO acknowledges the petitioner's claim that 
business may have been slow to start. However, the record is devoid of an explanation as to what the 
petitioner did during the most recent period, from January 1, 2000 through December 3 1, 2002, and a total of 
8 invoices during this period is not enough to establish that the petitioner has been conducting a regular and 
continuous distribution business during this time. 
The regulation at 8 C.F.R. 9 214.2(1)(3)(v)(C) allows the intended United States operation one year within the 
date of approval of the petition to establish the new office. Furthermore, at the time the petitioner seeks an 
extension of a new office petition, the regulations at 8 C.F.R. tj 214.2(1)(14)(ii)(B) require the petitioner to 
demonstrate that it has been doing business for the previous year. In the present matter, the evidence 
submitted at the time of filing confirmed that the petitioner had not been conducting business as required, and 
notably, the petition in this matter was filed over five years after the petitioner commenced operations. For 
this additional reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.