dismissed L-1A Case: Investment / Retail

identieing data deleted to 
prevent clearly unwarranted 
invasion of peaom\ privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 07 21 1 51302 Office: VERMONT SERVICE CENTER Date: FEB 0 3 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
JO~. Grissom, Acting Chief 
Administrative Appeals Office 
EAC 07 21 1 51302 
Page 2 
DISCUSSION: The Director, Vermont 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. 5 1101(a)(15)(L). The petitioner, a Mississippi corporation, states that it is a private 
investment company. It operates a gas station/convenience store, and a discount tobacco store. The petitioner 
claims to be a subsidiary of located in Mumbai, India. The beneficiary was initially 
granted a one-year period of stay to open a new office in the United States in 2002 and was subsequently 
granted two extensions of status. The petitioner now seeks to extend the beneficiary's L-1A status for two 
additional years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would 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 appeal to the AAO for review. On appeal, counsel asserts that the petitioner submitted 
sufficient evidence to establish that the beneficiary will be employed in an executive capacity, and provides 
further explanation as to how her duties are executive in nature. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1(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. 5 214.2(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 
EAC 07 211 51302 
Page 3 
education, training, and employment qualifies himher 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 sole issue addressed by the director is whether the petitioner established that 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. § 1 101(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 
(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. § 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonimmigrant petition was filed on July 16, 2007. The petitioner indicated on Form 1-129 that the 
beneficiary would serve as the director of the U.S. company, which was stated to have five employees. In 
EAC 07 21 1 51302 
Page 4 
support of the petition, the petitioner submitted a letter dated June 29, 2007, in which it described the 
beneficiary's duties as follows: 
As president, it is expected that the following amount of time will be spent on executive 
management duties: 39% on strategic thinkinglplanning, 24% on plan 
measurement/monitoring, 14% on internal communication, 11% on crisis 
management/solving acute problems, and 10% on other. 
The specific duties are broken down as follows: locate investment businesses to purchase 
(this involves contacting business brokers and evaluating financial records of potential 
business prospects) or to set up ourselves; determine services we need to provide in our area; 
establish financial goals for each investment; analyze financial reports of each investment by 
reviewing and evaluating reports of daily business operations & establish plans to increase 
sales, review profit/loss statements; development marketing strategies to attract additional 
customers; ensure the smooth operation of each investment through strategic planning and 
thinking, monitoring of business activity, and communicating with management. 
The petitioner stated that the beneficiary's position is part-time, requiring her to work 20 to 25 hours per 
week. The petitioner indicated that it was established as "a private investment company that locates existing 
businesses to own andlor operate." The petitioner further explained that it has invested in three businesses to 
date, one of which was sold in January 2004. It stated that it currently operates "Penny Saver," a convenience 
store selling gasoline and fast food, and another store operating as "Discount Tobacco." 
The petitioner described its staffing levels as follows: 
Staff at Discount Tobacco: 
The petitioner submitted a copy of its IRS Form 941, Employer's Quarterly Federal Tax Return, and 
Mississippi Form UI-3, Employer's Quarterly Wage Report, for the first quarter of 2007. During that quarter, 
the etitioner aid a total of four employees, including the beneficiary- 
and, who received wages of $500 per month. 
The director found the initial evidence insufficient to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity. Accordingly, on October 11, 2007, the director issued a request 
for additional evidence (RFE). The director requested, inter alia, the following evidence: (1) a 
comprehensive description of the beneficiary's duties and an explanation as to how they would be managerial 
EAC 07 21 1 51302 
Page 5 
or executive in nature; (2) a list of all U.S. employees, including their names, position titles, and complete 
position descriptions with a breakdown of the number of hours they allot to each duty on a weekly basis; and 
(3) a copy of the petitioner's IRS Form 941 for the second quarter of 2007. 
In response, the petitioner submitted a letter from the beneficiary dated November 5, 2007. The beneficiary 
explained that, in her role as president, she is investigating nine new businesses to determine whether any of 
them would be appropriate investments for the petitioner. She stated that the investigation "requires me to 
meet with other business owners and realtors as well as conduct my own research as to the costs and benefits 
of acquiring these new businesses." The petitioner re-iterated the position description that was included in its 
letter dated June 29, 2007. The petitioner attached a list of nine Mississippi businesses, including the name, 
address, and telephone number for each one. 
The petitioner also submitted copies of its IRS Form 941, and Mississippi Form UI-3 for the second quarter of 
2007. The Form UI-6 indicates that the following wages were paid during the quarter: 
Penny Saver Food Mart 
2. [The beneficiary] - $4,500 
Discount Tobacco: 
2. [The beneficiarvl - $1.500 
However, the AAO notes that the petitioner appears to have changed the date on the Form UI-3, as the second 
number in the field titled "Quarter Ending" has been changed to read "06/30/2007." This alteration raises 
some question as to whether this form represents the petitioner's actual staffing levels for the second quarter 
of 2007. 
The petitioner indicated that the Penny Saver Food Mart is open daily for 12-16 hours, for a total of 106.5 
operating hours per week, and that its deli is open Monday through Friday only, from 6:30 a.m. until 1:00 
p.m.. The petitioner stated that works Monday through Friday from 6 a.m. until 1 p.m. and on 
Saturday from 2:30 p.m. until 9:30 p.m., and is responsible for preparing gas reports, reading gas levels, 
logging and paying for orders, preparing sales reports, preparing lists of products needed, and operating a cash 
register. The petitioner indicated that works 42.5 hours per week, Monday through Saturday, as a 
cook and cashier, and is responsible for deli food pre aration, checking stock stocking deli groceries, and 
operating the cash register. The petitioner stated that bworks 25 hours per week, Monday through 
Friday, as a cook and is responsible for cooking fried meat and hamburgers, assisting with stocking, cleaning 
fryers, and assisting with other cleaning duties. Finally, the petitioner i 
the Penny Saver on two evenings per week, and on Sundays, and that 
Saver three evenings per week, and on Sundays. 
EAC 07 21 1 51302 
Page 6 
The petitioner indicated that the Discount Tobacco business is open for nine hours daily, Monday through 
-. - 
Friday, and for six hours on Saturday. The petitioner stated that 
 serves as manager and 
cashier, and works in the store a total of 24 hours per week, 
 purchase orders, 
stocking inventory, preparing sales reports, and running the cash register. The petitioner indicated that 
- works in the store a total of 21 hours per week, with responsibility for operating the cash 
register, stocking supplies, cleaning, and monitoring inventory. The petitioner did not indicate that any of its 
employees work in this store during its operating hours on Saturday. 
The director denied the petition on January 30, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity under the extended petition. The 
director found a discrepancy between the number of employees reported on the Form 941 and the number 
reported on the quarterly wage reports,' and noted that the Form 941 had a number of "trash marks" which 
raise questions regarding its veracity. The director further determined that the petitioner did not provide the 
requested detailed descriptions of the employees' duties or the beneficiary's duties, and instead described only 
"general managerial functions" that failed to specifL exactly what managerial or executive duties the 
beneficiary would perform in the context of the petitioner's current staffing levels. The director concluded 
that, given the minimal number of employees, it appears that the beneficiary would be primarily engaged in 
providing sales and services to customers, not directing the organization as claimed by the petitioner. 
On appeal, counsel for the petitioner asserts that the petitioner submitted sufficient evidence to establish that 
the beneficiary would be employed in a primarily executive capacity. Counsel cites the statutory definition of 
executive capacity pursuant to section 101(a)(44)(B) of the Act, and notes that the number of employees 
supervised is not determinative. Counsel emphasizes that the petitioner owns or operates "several businesses" 
in Mississippi, and reiterates the same position description submitted by the petitioner in its letters dated June 
29,2007 and November 5,2007.~ 
To establish that the beneficiary meets the statutory criteria for employment in an executive capacity, counsel 
asserts that the beneficiary supervises managerial employees, including ~-1 manager of the 
Penny Saver Shell, and -, manager of the Discount Tobacco. Counsel asserts that each 
manager is responsible for the supervision and coordination of the day-to-day activities at their respective 
businesses, including hiring and firing staff, preparing purchase orders and sales reports, and reporting to the 
beneficiary on a daily basis. Counsel further asserts that the beneficiary establishes goals and policies by 
locating investments to purchase, establishing financial goals for each business, and developing sales and 
1 
 Upon review, it appears that the director overlooked the fact that the petitioner's two separate businesses 
completed separate state quarterly wage reports. The number of employees reported on Form 941 was equal 
to the number of employees reported on the two Mississippi Forms UI-3 for the second quarter of 2007. 
2 
 Counsel indicated on the Form I-290B, Notice of Appeal or Motion, that he would submit a brief and/or 
evidence within 30 days of filing the appeal on February 28, 2008. The AAO subsequently contacted counsel 
by facsimile on August 11, 2008 to advise him that no additional evidence had been incorporated into the 
record, and to allow him to re-submit any timely filed documentation. Counsel replied on August 14, 2008, 
advising that he did not file a brief or evidence in support of the appeal. Accordingly, the record is considered 
complete. 
EAC 07 21 1 51302 
Page 7 
marketing strategies. Counsel states that the beneficiary has "complete discretion" to recruit managerial staff 
and consultants, authority to purchase businesses, and that she reports only to the board of directors of the 
petitioner's parent company. 
Counsel's assertions are not persuasive. Upon review, and for the reasons discussed herein, the petitioner has 
not established that the beneficiary would be employed in a primarily managerial or executive capacity under 
the extended petition. 
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. 8 214.2(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. 
In the instant matter, counsel and the petitioner have repeatedly described the beneficiary's proposed position 
in very broad terms. The petitioner initially stated in its letter dated June 29,2007 that the beneficiary devotes 
39 percent of her time to "strategic thinkinglplanning," 24 percent of her time on "plan 
measurement/monitoring," 14 percent on "internal communication," 11 percent on "crisis management," and 
10 percent on "other duties." These duties are so vague they are almost meaningless, and fall significantly 
short of explaining how the beneficiary will perform in a primarily managerial or executive capacity. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 4 1 (2d. Cir. 
1990). 
The petitioner also provided a list of duties that- included locating investment businesses to purchase, 
contacting business brokers, and evaluating financial records of potential business prospects, as well as 
determining market needs in the petitioner's location. While the decision to purchase a new business may 
involve managerial or executive authority, all of the associated research leading up to this decision would not 
fall under traditional definitions of managerial or executive capacity, and the petitioner has not indicated that 
any employees assist the beneficiary with these duties. Furthermore, the AAO notes that the petitioner has 
been in business for five years and has been involved in no more than three different business ventures. In 
addition, the petitioner has provided no documentary evidence of the beneficiary's claimed role in seeking out 
additional businesses to purchase, or established that the company, which had taxable income of -$4,000 in 
2006, is in a financial position to expand at this time. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
The petitioner indicates that the beneficiary devotes the remainder of her time to analyzing financial reports of 
each business, reviewing profit and loss statements, monitoring business activity, developing sales plans and 
marketing strategies and "communicating with management." As noted by the director, these duties identify 
general oversight functions, and also fail to establish the specific duties the beneficiary would perform on a 
day-to-day basis. The petitioner failed to describe any sales plans or marketing strategies implemented by the 
EAC 07 21 1 51302 
Page 8 
beneficiary. Also, with respect to the beneficiary's responsibility over financial matters, the AAO notes that 
the petitioner does not claim to utilize the services of a bookkeeper, nor has it indicated that any of the 
beneficiary's subordinates are responsible for handling the petitioner's routine banking and accounts, so it is 
unclear who on the petitioner's staff would relieve the beneficiary from performing these non-managerial 
activities. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner 
failed to provide any detail or explanation of the beneficiary's activities in the course of her daily routine. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 
F. Supp. at 1108. 
Furthermore, the director specifically requested that the petitioner submit a comprehensive description of the 
beneficiary's duties and an explanation as to how her duties qualify as managerial or executive in nature. In 
response, the petitioner re-submitted the same position description that was already provided and found by the 
director to be inadequate to meet the petitioner's burden of proof. The regulation states that the petitioner 
shall submit additional evidence as the director, in his or her discretion, may deem necessary. The purpose of 
the request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought 
has been established, as of the time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). The failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 
C.F.R. $ 103.2(b)(14). 
As a result of the petitioner's failure to provide the requested comprehensive description of the beneficiary's 
duties, the record before the director contained no concrete description of what the beneficiary does on a day- 
to-day basis as the director of the petitioning company. 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 beneficiary primarily performs 
these specified responsibilities and does not spend a majority of his or her time on day-to-day functions. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). Here, while 
the AAO does not doubt that the beneficiary exercises decision-making authority and overall oversight over 
the petitioning company as its president and shareholder, the petitioner has not met its burden to show that the 
beneficiary primarily performs managerial or executive duties. The AAO cannot accept a managerial or 
executive job title and broad, conclusory assertions regarding the beneficiary's responsibilities in lieu of the 
required detailed description of the beneficiary's duties. The petitioner has not adequately described the 
beneficiary's actual duties, such that they could be classified as managerial or executive in nature. Nor has the 
petitioner submitted a more detailed description of the beneficiary's duties for consideration on appeal. 
When examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those 
of his or her subordinate employees, the nature of the petitioner's business, the employment and remuneration 
of employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an. organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or manager position. Contrary to the common understanding of the word 
EAC 07 211 51302 
Page 9 
"manager," the statute plainly states that a "first line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professional." Section 10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. 5 2 14.2(1)(l)(ii)(B)(2). 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. At the time the petition was filed in July 2007, the 
petitioner employed the beneficiary as president, a managerlcashier in its convenience store, a 
managerlcashier in its discount tobacco store, a cook, a cooklcashier, and a cashier. The petitioner's 
businesses are open for a total of 156 hours per week. Based on the work schedules provided, the petitioner 
claims that four of its employees are employed 40 or more hours per week. However, in the quarter preceding 
the filing of the petition, the petitioner's two "managers" each earned total wages of $1,500 in a three-month 
period, which is not commensurate with full-time employment. 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). 
Furthermore, it is noted that notwithstanding the job title given to Mukesh Sumaria, during each of his shifts 
in the petitioner's two stores, he is the only employee on duty. Therefore, it is reasonable to conclude that his 
actual duties are primarily those of a cashier, rather than those of a manager or supervisor. Similarly, although 
has been given the job title "manager," she is the only employee claimed to be performing non- 
food related services in the petitioner's gas statiodconvenience store. Again, the actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990). The record does not support a finding that the beneficiary's 
subordinates are actually performing managerial or supervisory duties, and the petitioner does not claim that 
any of the beneficiary's subordinates are professionals. The petitioner has not established that the beneficiary 
will primarily manage a subordinate staff of managers, professionals or supervisors. See section 
10 1 (a)(44)(A)(ii) of the Act. 
Therefore, while the petitioning company purportedly employs a "manager" for both of its stores, the 
evidence of record suggests that all of the petitioner's employees would be required to perform the actual day- 
to-day tasks of operating the gas stationlconvenience store and tobacco store in order for the stores to remain 
open for business. The petitioner has not provided evidence of an organizational structure sufficient to 
elevate the beneficiary to a supervisory position that is higher than a first-line supervisor of non-professional 
employees. Pursuant to section 101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualie as 
primarily managerial under the statutory definition. 
On appeal, counsel alludes to the fact that a company's size alone, without taking into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See $ 101 (a)(44)(C) of the Act, 8 U.S.C. $ 1 101(a)(44)(C). In reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that USCIS "may properly 
consider an organization's small size as one factor in assessing whether its operations are substantial enough 
to support a manager." Family Inc. v. US. Citizenship and Immigration Services 469 F. 3d 13 13, 13 16 (9th 
Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. 
EAC 07 21 1 51302 
Page 10 
Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 
29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS 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, e.g. Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The absence of a subordinate staff sufficient to perform the non- 
qualifying duties of the petitioner's business is a proper consideration in the analysis of the beneficiary's 
employment capacity. See Q Data Consulting, Inc. v. INS. 293 F. Supp. at 29. 
At the time of filing, the petitioner was operating two businesses which are open for business a total of 156 
hours per week. Although the petitioner indicates that it employs four full-time employees, and two part- 
time employees (the beneficiary and the cook), only the beneficiary and the cooWcashier earned salaries 
commensurate with full-time employment in the second quarter of 2007. All other employees were earning 
wages between $300 and $750 per month, and therefore were evidently not working the full-time schedules as 
claimed by the petitioner. Furthermore, even if all of the employees did work the alleged hours provided, the 
petitioner did not claim to have any employees working in its tobacco store on Saturdays at all, and did not 
indicate that anyone was working in its convenience store between the hours of 1:00 and 5:30 p.m., Monday 
through Friday. The petitioner's representation that it operates for a total of 28.5 hours per week with no 
employees in its stores is not credible, and for this additional reason, the petitioner's claimed staffing structure 
can be called into question. 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. at 591-92 (BIA 1988). 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. 
Id. at 591. 
Given the minimal number of hours worked by the beneficiary's subordinates, and the petitioner's extensive 
operating hours, the record does not support the petitioner's claim that it employs sufficient lower-level 
personnel to relieve the beneficiary from primarily working in the petitioner's stores. The record does not 
establish who among the petitioner's staff would be responsible for purchasing and monitoring inventory, 
receiving deliveries, stocking and maintaining store displays, cleaning and maintenance, day-to-day 
administrative, financial and banking functions, and other routine tasks associated with operating retail 
businesses during the many hours when the claimed subordinate managers and other employees are not on 
duty. Based on the totality of the record, it is reasonable to conclude, and has not been shown otherwise, that 
the beneficiary has been and will be primarily engaged in the day-to-day tasks associated with operating a 
retail store, rather than primarily performing the claimed managerial or executive duties. Furthermore, the 
reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the context of 
reviewing the claimed managerial or executive duties. The petitioner must still establish that the beneficiary 
is to be employed in the United States in a primarily managerial or executive capacity, pursuant to sections 
101(a)(44)(A) and (B) of the Act. As discussed above, the petitioner has not established this essential 
element of eligibility. 
EAC 07 211 51302 
Page 11 
Collectively, the lack of specifics in the beneficiary's job description and the absence of subordinates to 
perform many of the duties that are reasonably required in the daily operation of this type of business raise 
questions as to how much of the beneficiary's time can actually be devoted to managerial or executive duties. 
As stated in the statute, the beneficiary must be primarily performing duties that are managerial or executive. 
See sections 10 1 (a)(44)(A) and (B) of the Act. 
On appeal, counsel claims that the beneficiary will be employed in an executive capacity. The statutory 
definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. § 1 10 1 (a)(44)(B). Under the 
statute, a beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of that organization. Inherent to the definition, the organization must have a subordinate level of employees 
for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the 
organization rather than the day-to-operations of the enterprise. An individual will not be deemed an 
executive under the statute simply because they have an executive title or because they "direct" the enterprise 
as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization." Id. Counsel has essentially paraphrased the statutory 
definition of executive capacity on appeal in an effort to establish that the beneficiary meets the criteria. 
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. Suva, 724 F. Supp. at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). As discussed, the petitioner has not provided evidence to support its claim that the beneficiary 
primarily focuses on the broad goals and policies of the organization, and a review of the totality of the 
evidence supports a conclusion that the beneficiary is primarily engaged in the day-to-day operations of the 
company's two retail businesses. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity under the extended petition. Accordingly, the appeal will be 
dismissed. 
Finally, the AAO notes the petitioner's claim that the beneficiary will only be required to work on a part-time 
basis of 20 to 25 hours per week. As discussed above, at least two of the petitioner's claimed full-time 
employees are receiving wages commensurate with part-time employment, and the petitioner appears to be 
un-staffed for an additional 28 hours per week. Therefore, the claim that the beneficiary's services are only 
required on a part-time basis is not persuasive. It is noted that the regulation at 8 C.F.R. 5 214.2(1)(12)(ii) 
provides that the limitations on periods of stay in L-1 status do not apply to aliens who do not reside 
continually in the United States and whose employment in the United States is seasonal, intermittent or 
consists of aggregate of six months or less per year. The limitation also does not apply to aliens who reside 
abroad and commute to the United States for part-time employment. The AAO questions whether the 
petitioner is attempting to take advantage of these exceptions in order to eventually prolong the beneficiary's 
stay in the United States beyond the seven-year limit imposed by 8 C.F.R. 9 214.2(1)(12)(i). Even if the AAO 
were convinced that the beneficiary's employment would be on a part-time basis, it is noted that the 
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beneficiary does in fact appear to reside in the United States on a full-time basis and, therefore, she would not 
qualify for the exceptions described at 8 C.F.R. tj 214.2(1)(12)(ii). 
The AAO acknowledges that USCIS approved other L-1 nonimmigrant petitions that had been previously 
filed on behalf of the beneficiary. It must be emphasized that each petition filing is a separate proceeding 
with a separate record. See 8 C.F.R. 5 103.8(d). In making a determination of statutory eligibility, USCIS is 
limited to the information contained in that individual record of proceeding. See 8 C.F.R. tj 103.2(b)(16)(ii). 
The prior approvals do not preclude USCIS from denying an extension of the original visa based on 
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). 
If the previous nonimmigrant petitions were approved based on the same unsupported assertions that are 
contained in the current record, the approvals would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Based on the lack of required evidence of 
eligibility in the current record, the AAO finds that the director was justified in departing from the previous 
petition approvals by denying the instant petition. 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. fj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.