dismissed L-1A Case: Investment And Retail

U.S. Department of llomeland Security 
70 Mass Ave . N W., Km A3042 
a Wath~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: SRC 02 179 50227 Office: TEXAS SERVICE CENTER Date: SFC : 
IN I=: Petitioncr: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker I'ursuant to Section lOl(a)(IS)(L) of the 1mmigl.ation 
and Nationality Act. 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
This is the decision of the Admi~listrativc Appeals Office in your case. All documents have been retumcd to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiernann. ~irectou' 
Administrative Appeals Office 
h 
SRC 02 179 50227 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The 
Administrative Appeals Office (AAO) summarily dismissed a subsequent appeal. Counsel for the petitioner 
has submitted evidence to establish that she timely filed a brief in support of its appeal. Accordingly. the 
appeal was improperly summarily dismissed. The AAO will reopen the'mattcr in order to considcr counsel's 
brief and issue a new decision. The appeal will be dismissed. 
The petitioner filed this nonim~nigrant petition seeking to extend the employment of its president as an L-IA 
noni~nmigrant intraconlpany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act). 8 U.S.C. 9 llOl(a)(15)(L). The petitioner is a corporation organized in the Statc of Texas that 
claims to be engaged in investment and retail sales. The petitioner claims that it is the subsidiary of Goyal 
Industries located in Bahadurpura, India. The beneficiary was initially granted a one-year period of stay to 
open a new office in the IJnited States and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States 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 appcal to the AAO for review. On appeal. counsel for the petitioner asscl-ts that the director 
applied an incorrect standard and e~roneously based her decision upon size of the U.S. company and the small 
number of employees. Counsel contends that the beneficiary is a "function manager" and states that the 
petitioner is not required under current regulations to prove that the beneficiary docs not "directly perform" 
the function he manages. Counsel submits a brief in support of the appeal. 
To cstablidl eligibility for the L-1 nonimniigrant 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 Unitcd 
Statcs. 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, 01. 
specialized hlowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-12!) shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien arc qualifying organjzations as defined in paragraph (I)(l)(ii)(G) of this section. 
(ii) Evidencc 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 contilluous ycar of full tirue employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
SKC 02 179 50327 
Page 3 
(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 him/her to perform the intended 
services in the United States; however. the work in the United States nccd not bc the 
same work which the alicn performed abroad. 
The regulation at 8 C.F.R. 3 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of 3 
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) or this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previo~~s year and the 
duties the beneficiary will perform under the extended petition; 
(11) A statement describing the staffing of the new operation. including the numbcr 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 TJnited States operation. 
Thc primary issue in the present matter is whether the beneficiary will be employed by the lJnited States 
entity in a primarily rna~lagcrial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 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 persomiel actions (such as 
promotion and leave authorization). or if no other employee is directly supervised. 
SRC 02 179 50227 
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functions at a senior lcvel within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day opcrations 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 mercly by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(34)(U) of the Act, 8 U.S.C. 1101(a)(44)(B), defincs the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) dirccts the management of the organization or a major component or function of thc 
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. 
Jn a May 17, 2002 lettcr appendcd to the initial petition. the pctitioner described the beneficiary's job duties as 
follows: 
[Thc bencl'iciary] currently serves as the President of [the petitioner.] As such, [the 
beneficiary] is the primary officer responsible for thc creation. implementation and 
monitoring of all operations for [the petitioner] as well as for planning and implementing the 
expansion of our business. Under his supervision, Ithe petitioncr] has purchased a retail 
business in Atlanta, and [the beneficiary] continues to explore business oppol-tunitics and 
investments for the company. [The beneficiary] supervises approximately 3 cmployces. 
including the General Manager of the rctail business. In addition, he formulates company 
policies and oversees our overall financial administration. [The bencficialy] has the authority 
to negotiate and enter into contracts on behalf of the company. hire employees, direct their 
training. dismiss employees, and oversee domestic distribution systems. He is granted broad 
discret~on over the day to day operations of [the petitioner. I 
Thc petitioner indicated on Form T-129 that it ernploys four workers. The petitioner indicated in its lettcr that 
the company maintains headquarters in Longview, Texas, and operates a "full-range. budgct-priced retail 
store" located in Georgia, which was purchased during the first year of operations. In support of the petition, 
the petitioner submitted its Form 941, Employer's Quarter Federal Tax Return, and its Georgia Form G-7, 
Quarterly Return for Quai-terly Filers, for the first quarter of 2002. These documents indicate that the 
petitioner e~nployed three individuals as of March 2002. In addition, the pctitioner submitted its 2001 Form 
SIiC 02 179 50227 
Page 5 
1120. U.S. Corporation Income Tax Return, on which it reported $27,000 in gross receipts for the year, no 
salaries, no inventory, no investments and no assets. 
On September 27, 2002, thc director issued a request for additional evidence asking the petitioner to provide 
the names and job titles of the company's four workers. 
In a response datcd November 26, 2002, the petitioner's contracted tax practitionerPaccountant provided the 
following information regarding the petitioner's staffing: 
On Decembcr 3 1, 2002, the director denied the petition. The director determined that the beneficiary would 
not serve in a primarily managerial or executive capacity under the extended petition. Specifically, the 
director noted that the petitioner had not established that the beneficiary manages or directs thc management 
of a department, subdivision, function or component of the organization, or that he will supervise the work of 
other supervisory, professional or managerial employees. The director concluded that the petitioner's 
organization had not cxpanded to the point whcre it required a bona fide full-time president, and thrit the 
beneficiary would devote the majority of his time to non-executive, day-to-day operations of the business. 
On appeal, counsel for the petitioner asserts that the director's decision "is based upon an unsupported legal 
conclusion that is contrary to statute ancl regulation." Counscl states that thc director incorrectly based her 
decision solely on the number of employees in the company. Counsel further asserts that the cvidencc 
submitted clcarly establishes that the beneficiary qualifies as a "function manager," and contends that the 
director erroneously required that the petitioner demonstrate that other cmployecs in fact directly perform the 
function managed by the beneficiary. Counsel claims that the "essential function" managed by the 
bcneficiary is "the operation of the United Statcs subsidiary" and the fact that the beneficiary "has few 
subordinates is immaterial, as is their 'supervisory, professional 01 managerial' status or the impression that 
they may not be demonstrated as sufficient to 'relieve' him from primarily performing the serviccs of the U.S. 
subsidiary." Counscl concludes that the beneficiary qualifies as the "executive and manager of an eksential 
function" and that the petitioner's staffing levels are reasonable given the needs of the organization. 
1Jpon 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 oC the job duties. Sec 8 C.F.K. 
S 212(1(3)(ii). Thc petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such dutics are either in an executive or Inanagerial 
capacity. /[I. 
In this casc, the petitioner's description of the beneficiary's job duties is vague and does not establish what 
tasks he will perform on a daily basis. For example. the petitioner states that the beneficiary wilI be 
responsible for "planning and implementing the expansion of our business" and "explore business 
SRC 02 179 50227 
Page 6 
opportunities and investments for the company." Howcver. the pctitioner fails to identify any managerial or 
executive tasks associated with these broad responsibilities. Without additional explanation, and absent 
evidencc that the petitioner is actively engagcd in investment activities, thc AAO cannot determine whethcr 
thc beneficiary is doing anything more than performing market rescarch, which is not traditionally a 
managerial or executive duty. Similarly. the pctitioner does not clarify what spccific managerial or cxecutivc 
tasks the beneficiary performs to "oversee domestic distribution systems," particularly since the petitioncr 
does not claim to be engaged in distribution of goods other than retail sale of goods from its discount store. 
The petitioner further states that the beneficiary has thc authority to negotiate and enter into contracts on 
behalf of the company, but provides no examples which would demonstrate that this duty rises above thc level 
of signing routine sales contracts or contracts with vendors and suppliers. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in naturc, otherwise meetink 
the definitions would simply be a matter of reiterating thc regulations. 'Fedirz Bros. Co., Lld. L: Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989). rlf'd. 905 F.2d 41 (2d. Cis. 1990). The actual duties themselves reveal the true 
nature of the employment. Id. The provided job description does not allow the AAO to dctertnixle the actual 
tasks that the beneficiary performs, such that they can be classified as managerial or exccutive in nature. 
The petitioner further states that thc beneficiary "is granted broad discretion over the day to day opcrations" 
and "formulates company policies." These statements borrow liberally from the definition of executive 
capacity and do not convey an understanding of the beneficiary's daily duties. Conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient. Merely repeating the languagc of tlie 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Brt~s. Co., Ltcl. 11. Suva, 724 F. 
Supp. at 1108; Avyr Associntes, Inc. v. Meissrter, 1997 WL 188942 at *-5 (S.D.N.Y.). Thc beneficiary's job 
descript~on does not allow the AAO to determine his actual duties, such that the AAO can deterrninc whether 
they arc managerial or executive in nature. 
Counsel correctly observcd that CIS may not base a dcterrnination of the beneficiary's eligibility for 
managerial or executive capacity solely on the size of the petitioning company. I'ursuant to section 
101(a)(44)(C) of the Act, 8 U.S.C. $ 1101(a)(44)(C). if staffing levels are used as a factor in determ~ning 
whcther an individual 1s 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. In the present matter, howevcr, the rcgulations provide strict cvidentiary requirements for thc 
cxtension of a "new office" petition and require CTS to examlrie the organizational structure and staffing 
lcvcls of thc petitioncr. See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation al 8 C.F.R. $ 214.211)(3)(v)(C) 
allows the "new office" operation onc 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 
pcriod. If the business does not have sufficient staffing after one year to relieve the beneficiary from 
primarily pcrforming operational and administrative tasks. the petitioner is ineligible by regulation for an 
extension. 
111 the instant matter, the petitionei- claimed to maintain a headquarters office in Texas and a retail store in 
Georgia, with a total ol four employees. The pctitioner claimcd that the beneficiaiy works in the Texas office. 
and thc petitioner's Georgia Form (3-7 Quarterly Return indicatcs that the petitioner's other three employees 
were working in Georgia. In response to the dircc~or's request for evidence, the petitioner claimed that its 
SRC 02 179 50227 
Page 7 
three enlployees served in the position of store mdnager, cashier and bookkeeper. Only one of these 
employees, the individual identified as the "store manager" was included on the most recent Form G-7 at the 
time of filing. The only address listed on many of the petitioner's tax documents is a residential address in 
Georgia, rather than the company's purported Texas headquarters. The record does not contain the addrcss for 
the retail store, much less evidence that the petitioner purchased the store or obtained a lease or deed for its 
premises The only other address indicated for Lhe store is the address of the petitioner's contracted 
accountant Based on the evidence on record, the AAO cannot determine with any certainty ~vhere thc 
beneficiary is working, whenlif the petitioner actually acquired a retail store, or the job titles and duties of the 
petitioncr's subordinates at the time of filing. If the bcneficiary was indeed working in Texas, it is evident that 
he was the only employce in the office and by necessity would have been responsible for all administrative 
and clerical work, as well as market research and other mundane tasks associated with thc petitioner's 
investment business. An employee who primarily performs the tasks necessary LO produce a product or 
provide services is not considered to be employed in a managerial or executive capacity. Mr~tter- of Cl~urch 
Scientology I~~tcrnatiorzul, 19 I&N Dec. 593, 604 (Cornm. 1988). 
Furthermore, although the pctitioner indicated that the beneficiary works at its Tcxds headquarters, the 
beneficiary's job description suggests that he is directly involved in the retail business, as the petitioner 
indicates that he supervises and trains the store's employees. If the bcneficiary is in fact working at the 
petitioner's store, the petitioner has not established that a store manager and one cashier are sufticierlt to 
relieve the beneficiary from performing non-qualifying duties associated with operating a store. including 
tracking and ordering inventory and directly supervising employees engaged in sales and customer service. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the bcneficiary PI-imririly performs these specified responsibilities and does not spend a 
majority of his 01- her time on day-to-day functions. Chanlpiorl World, Ilzc. v. INS, 940 F 2d 1533 (Table), 
199 1 WL 144470 (9th Cir. July 30, 199 1). While the beneliciary in this case likely performs some tnanagerial 
or executive duties in oversccing the petitioner's operations, the petitioner's vaguc description of the 
beneficiary's duties, its business operations, and its staffing levels precludes the AAO from finding that the 
bcneficiary is performing primarily managerial or executive duties. 
Additionally, counsel observcs that Congress omitted thc language that discussed individuals who produce a 
product or provide a service from the Immigration Act of 1990 and asserts that this is a clear indicator that 
such individuals are not precluded from qualifying as multinational managers or exccuiivcs. However, the 
AAO will not draw this conclusion based solcly on an omission. Counsel docs not rcference a prcexisting 
precedent decision that discussed individuals that are engaged in the production of a product or servicc. That 
pleccdent clearly states that an employee who primarily performs the tasks necessary to procluce a product or 
to provide a scrvice is not considered to be employed in a ~nanagerial or executive capacity. Mutter of 
Chzir-rll Scientology Interrzntiorzal. 19 I&N Dec. at 604. 
Dcspite the changes made by the Immigration Act of 1990, the statute continues to require that an individual 
"primarily" pdorm managerial or executive duties in order to qualify as a managerial or executive employee 
under the Act. The word "primarily" is defined as "at first," "principally," or "chiefly." Websrer's I1 Nelr. 
SKC 02 179 50227 
Page 8 
College L)ictionnry 877 (2001). Where an individual is "principally" or "chiefly" performing the tasks 
necessary to produce a product or to provide a service. that individual cannot also "principally" or "chicfly" 
perform managerial or executive duties. Counsel submits no evidence in the form of congressional reports, 
case law, or other documentalio~i to support his argument. Accordingly, counsel's unsupported assertions are 
not persuasive on this point. 
Finally, the AAO acknowledges com~sel's assertion on appeal that the beneficiaty will serve as an execulive 
or manager of an "essential function." The term "function manager" applies generally when a beneficiary 
does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing 
an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. 8 U.S C 
1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must identify the function with specific~ty, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attr~buted to managing the essential function. In 
addition, the petitioner must provide a co~nprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating to the 
function. Again, 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. Mutter of Cllctrclz 
Scientology Inter-~zatiorznl, 19 I&N Dec. at 604. In this matter, the petitioner has not provided ebidence that 
the beneficiary manages an essential function. Counsel's unsubstantiated statement that "the operation of thc 
United States subsidiary is clearly an 'essential function'" is not persuasive. Without documentary evidence 
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions 
of counsel do not constitute evidence. Matter of Ohnigberzn, 19 l&N Dec. 533, 534 (131A 1988); Mutter Or 
Lnzfrenrzo, 19 I&N Dec. I (RIA 1983); Matter of Rmnirez-Sanclzez, 17 Z&N Dec. 503, 506 (BIA 1980). 
The record is not persuasive in demonstrating that the beneficiary has becn or will be employed in a primal ily 
managerial or executive capacity. The petitioner indicates that it plans lo expand its operations in the future. 
However, the petitioner must establish eligibility at the time of filing the lionimmigrant 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 Miclzelirz Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, as notcd 
above, 8 C.F.R 5 214 2(1)(3)(v)(C) allows the intended 17nited States operation onc year \vithin the date of 
approval of the petition to support an execut~ve or managerial position. There is no provision in CIS 
regulations that allows for an cxtension of thls one-year period. If the business is not sufficiently operational 
after one year, thc petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner 
has not reached the point that it can employ the beneficiary in a predominantly managerial or exccurive 
pos~tion. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily or 
managerial capacity. as required by 8 C.F.R. 5 214.2(1)(3). 
Beyond the decision of the director, [he record does not contain sufficient evidence that the petitioner has 
becn engaged in the rcgular, systematic, and con~inuous provision of goods and/or services in the United 
States for the entire year prior to filing the petition to extend the beneficiary's status. The petitioner submitted 
copies of salcs and use tax retiuns suggesting that it has been selling its goods on a regillar basis. The earlicst 
SRC 02 179 50227 
Page 9 
invoice documenting the sale of the petitioner's goods dates back to January 2002. However, the new officc 
petition was approved in August 2001. Thus, pursuant to the regulation at 8 C.F.R. 5 214.2(1)(L.l)(ii)(H). the 
petitioner is expected to submit evidence that it has been doing business since the date of the approval of thc 
initial petition. In the instant case, there is no evidence that the petitioner was do~ng business from August 
tl~rough December of 2001. For this additional reason, the petition may not be approved. 
' 
In addition, thc record leflects that the petitioner did not file the petition for an extension within the requited 
time frame. The regulation at 8 C.F.R. 214.2(1)(14)(i) provides. in pertincnt part, thal a petition extension 
inay be filed only if the validity of the original petition has not expired. In the present case, the beneficiary's 
authorized period of stay expired on May 19, 2002 However, the petition for an extension of the 
beneficiary's L-IA status was filed on h4ay 20, 2002, one day following the expiration of the beneficiary's 
status. Pursuant to 8 C.F.R. 3 214.1(~)(4), an extension of stay may not be approved for an dppiicant who 
failed to maintain the previously accorded status or where such status expired before the application or 
pelitioil was filed. As the extcnsion petition was not timely filed, it is noted for the record that the beneficiary 
is ineligible for an extension of stay in the United States. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if thc Service Centcr does not identify all of the grounds for denial in the initial decision. See 
Spencer Ettterpuises, lnc. v. IJnited States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001). uffrl. 345 F.3d 683 
(9th Cir. 2003); set. also Dor- v. INS, 891 F.2d 997. 1002 n. 9 (2d Cir. 1989)(noting thal the AAO reviews 
appeals on a de rzovo basis). 
7 
The petition will be denied for the above statcd reasons, with each considercd as an indcpendcnt and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.