dismissed L-1A Case: Jewelry

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rrn. A3042 
Idem--@ 
Wash~ngton DC 20529 
P- -1~ an4 U.S. Citizenship 
4ed-p- and Immigration Services 
mTBWC COPY 
FILE: EAC 00 275 5 1560 Office: VERMONT SERVICE CENTER Date: NOV 2 8 
IN RE: Petitioner: 
Beneficiary: 
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 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
X 
EAC 00 275 5 1 5 60 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
Administrative Appeals Office (AAO) dismissed the subsequently filed appeal. The matter is now before the 
AAO on motion to reopen. The motion will be granted and the previous decision of the AAO will be 
affirmed. 
The petitioner states that it is engaged in the import and retail sale of jewelry. It seeks to extend its 
authorization to employ the beneficiary temporarily in the United States as its executive director pursuant to 
section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The 
petitioner, a Virginia corporation, claims to be a subsidiary of Bansal Jewelers, located in Delhi, India. The 
beneficiary was initially granted a one-year period of stay in L-1A status in order to open a new office in the 
United States and the petitioner now seeks to extend his stay. 
The director denied the petition on February 16, 2001, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a managerial or executive capacity. 
On appeal, the AAO affirmed the decision of the director in a decision dated October 15,2002. The AAO also 
observed that the evidence on record did not demonstrate that (1) the beneficiary's services would be for a 
temporary period or that the beneficiary would be transferred abroad upon completion of the assignment as 
required by 8 C.F.R. 5 214.2(1)(3)(vii); or that (2) the petitioner has a qualifying relationship with the 
beneficiary's foreign employer pursuant to 8 C.F.R. 8 214.2(1)(l)(ii)(G). 
On motion, counsel submits a brief statement and additional evidence to address the grounds of the director's 
denial and the findings of the MO. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his 
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. $ 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. 
EAC 00 275 51560 
Page 3 
(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 
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 regulation at 8 C.F.R. 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 the present 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. 5 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; 
EAC 00 275 5 1560 
Page 4 
(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. $ 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. 
The Form 1-129 petition was submitted on September 8, 2000 with insufficient evidence to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. The petitioner provided only 
a brief description of the beneficiary's duties during the first year of operations, and indicated that the 
beneficiary's wife, an unsalaried shareholder, was solely responsible for selling jewelry and maintaining the 
store. The petitioner stated that it did not have any payroll employees. 
On October 25, 2000, the director requested additional evidence in support of the petitioner's claim that the 
beneficiary would be employed in a managerial or executive capacity, including in part a comprehensive 
description of the beneficiary's duties, an organizational chart depicting all of the petitioner's employees, and 
descriptions of the duties performed by the beneficiary's subordinates. The petitioner, through former 
counsel, submitted evidence that it hired two employees subsequent to the filing of the petition, brief 
descriptions of their duties, and a new description of the beneficiary's duties. As the beneficiary's job 
description was quoted in its entirety in the AAO's previous decision, it will not be repeated here. 
The director denied the petition on February 16, 2001 concluding that the petitioner had not established that 
the beneficiary had been and would be employed in a primarily executive or managerial capacity. The director 
observed that the evidence submitted indicated the beneficiary had been and would be engaged primarily in 
non-managerial, day-to-day operations involving producing a product or providing a service. 
EAC 00 275 5 1560 
Page 5 
On appeal, former counsel for the petitioner asserted that the director failed to consider the job description 
provided in response to the petitioner's request for evidence "detailing his duties vis-a-vis executive functions 
in contrast to the duties of its two regular staff employees." The AAO dismissed the appeal, noting that the 
petitioner's descriptions of the beneficiary's duties were too broad and general, and that the record contained 
no indication of the beneficiary's actual duties. The AAO also found no evidence that the beneficiary would 
manage a staff of professional, managerial or supervisory personnel and concluded that he would be acting, at 
most, as a first-line supervisor of non-professional employees. 
On motion, counsel for the petitioner does not specifically address the issues raised in the AAO's decision. 
Rather, counsel merely states: 
The prior counsel misstated the beneficiary's duties. Actually, he was performing these duties 
while setting up the business. The job description for his position as a Manager is as follows: 
Manager - Directs Sales, Export and Import of Jewelry. Formulates pricing policies of 
Jewelry according to profitability of store operations. Coordinates sales promotion activities 
and prepares or directs workers preparing merchandise displays, supervises employees 
engaged in sales work. Taking inventories, Reconciling Cash and Sales Receipts. Plans and 
prepares work schedules and assigns employees to specific duties. 
The job is a combination of job of Export Manager, Sales Manager, Retail Store Manager and 
General Manager all in one. In a small business enterprise, there has to be a lot of flexibility. 
The Manager has to wear many hats, and sometimes he has to substitute for employee too. 
Counsel cites several unpublished AAO decisions to stand for the proposition that CIS is required "to look at 
the increase in the number of employees, significant growth in cash flow, presence of significant customers 
and clientele or similar elements in order to determine the need of Managerial or Executive Employee." 
Counsel states that the petitioner's "cash flow is growing everyday as is indicated by its sales. The sales are 
much higher in 2001 than in 2000 and 1999. Its clientele or base of customers is increasing and thus it needs 
the services of the beneficiary." The petitioner provides copies of its Internal Revenue Service (IRS) Forms 
1120, U.S. Corporation Income Tax Return, for the years 1999, 2000 and 2001 and "payroll deductions" for 
the 2001 and 2002 years. Finally, counsel asserts that the Immigration Act of 1990 "liberalized" the 
definitions of managerial and executive capacity, and no longer requires beneficiaries to have supervisory 
responsibilities. Counsel concludes that the beneficiary is performing "all the managerial duties" while other 
employees perform the day-to-day functions. 
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 job description of the job duties. See 8 C.F.R. 
$ 2142()(3)(i). 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 in an executive or managerial capacity. Id. 
Counsel has provided no additional evidence on motion to persuasively demonstrate that the beneficiary 
would be employed in a managerial or executive capacity. Rather, the new job description, which counsel 
EAC 00 275 5 1560 
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claims represents the beneficiary's "actual" duties, supports the director's and the AAO's previous 
conclusions that the beneficiary primarily performs routine operational tasks, such as taking inventory and 
reconciling cash register receipts, and directly performing sales tasks, as well as first-line supervisory duties 
over low-level staff. 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). A managerial or executive employee must 
have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless 
the supervised employees are professionals. Id. 
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 show 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). Where an individual is primarily performing the tasks necessary to 
produce a product or to provide a service, that individual cannot also primarily perform managerial or 
executive duties. In the instant matter, the petitioner has failed to show that non-qualifying duties will not 
constitute the majority of the beneficiary's time. 
Counsel correctly states that the Immigration Act of 1990 removed the requirement that a managerial or 
executive employee directly supervise personnel. However, counsel does not submit evidence or argument to 
establish that the beneficiary qualifies as a "function manager." 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) 
of the Act, 8 U.S.C. 5 1101(a)(44)(A). Based on the petitioner's representations, the beneficiary devotes a 
substantial proportion of his time to supervisory responsibilities. If it is claimed that his duties involve 
supervising employees, the petitioner .must establish that the subordinate employees are supervisory, 
professional, or managerial. See section 101(a)(44)(A)(ii) of the Act. As discussed in the AAO's previous 
decision, the beneficiary has not established that the beneficiary has authority beyond that of a first-line 
supervisor of non-professional personnel. 
Counsel correctly states that the AAO will take into account certain factors, such as an increase in the number 
of employees, a significant growth in cash flow or the presence of significant customers in determining the 
need for a managerial or executive employee once a business becomes operational. However, the AAO need 
not and will not consider evidence of business growth or expansion that occurred subsequent to the filing of 
the petition. 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, and does not have sufficient subordinate staff to relieve the beneficiary 
from performing non-qualifying duties, the petitioner is ineligible by regulation for an extension. Therefore, 
the AAO will not consider evidence of the petitioner's staffing levels or sales figures for the 2001 and 2002 
years. The record indicates that as of the date of filing, the beneficiary and his spouse were still solely 
responsible for all aspects of the petitioner's business. Accordingly, the petitioner has not reached the point 
EAC 00 275 5 1560 
Page 7 
that it can employ the beneficiary in a predominantly managerial or executive position. The petitioner has not 
submitted evidence on motion to overcome the AAO's previous decision on this issue. 
The second issue in this proceeding is whether the petitioner has established that the beneficiary's 
employment will be for a temporary period. 
Generally, the petitioner for an L-1 nonimmigrant classification needs to submit only a simple statement of 
facts and a listing of dates to demonstrate the intent to employ the beneficiary in the United States 
temporarily. However, where the beneficiary is claimed to be the owner or a major stockholder of the 
petitioning company, a greater degree of proof is required. Matter of lsovic, 18 I&N Dec. 361 (Comm. 1982); 
see also 8 C.F.R. 9 214.2(1)(3)(vii). As noted in the AAO's previous decision, the record indicates that the 
beneficiary is a 50 percent owner of the petitioning organization. The petitioner did not furnish evidence that 
the beneficiary's services are for a temporary period or that the beneficiary will be transferred abroad upon 
completion of the assignment. 
On motion, counsel simply asserts that the statute does not require evidence that the beneficiary's services 
will be for a temporary period or evidence that the beneficiary will be transferred abroad upon completion of 
his assignment. The petitioner has not submitted any additional evidence in compliance with the 
requirements at 8 C.F.R. 5 214.2(1)(3)(vii). Counsel's contention that such a requirement does not exist, when 
the requirement is stated in the plain language of the regulations, is not persuasive. The petitioner has failed to 
overcome the AAO's determination on this issue. For this additional reason, the petition may not be 
approved. 
The third and final issue in this proceeding is whether the petitioner has established a qualifying relationship 
between the U.S. company and the foreign entity. 
The pertinent regulations at 8 C.F.R. 9 2 14.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) QuaizJSling organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the definitions of 
a parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this 
section; 
(2) Is or will be doing business (engaging in international trade is not required) as 
an employer in the United States and in at least one other country directly or 
through a parent, branch, affiliate or subsidiary for the duration of the alien's 
stay in the United States as an intracompany transferee; and, 
(3) Otherwise meets the requirements of section 10 l(a)(15)(L) of the Act. 
EAC 00 275 5 1560 
Page 8 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization housed in a 
different location. 
(IS) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
(L) Af$liate means 
(1) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
The petitioner indicated on Form 1-129 Supplement E/L that the United States company is a subsidiary of the 
foreign entity and explained: 
Both companies family owned: Alien owns overseas branch with his brother from '84 to '92 
and thereafter alone until March '99 when he left for U.S. (His wife's brother manages the 
business to date in which he and alien are equal [partners]. U.S. business is 100% owned by 
alien & wife. 
The record includes the following documents with respect to the foreign entity's ownership: (1) a partnership 
deed for the foreign entity dated July 20, 1984, listing the beneficiary and his brother as 50-50 partners; (2) a 
dissolution deed confirming that the beneficiary's brother left the partnership on December 30, 1994; and (3) 
an affidavit executed by the beneficiary on September 9, 1999, which indicates that his brother-in-law became 
a partner in the foreign entity in March 1999, and that his brother-in-law currently manages the foreign entity. 
The record also contains the petitioner's stock certificates numbers one and two, confirming that the 
beneficiary and his spouse each own ten shares of stock in the company. 
Although the director did not address this issue in his decision, the AAO noted that the petitioner did not 
submit evidence to establish that it is a subsidiary of the foreign entity, as claimed on the Form 1-129 
supplement. The AAO further observed that the petitioner indicated that the beneficiary alone owns the 
foreign entity, while the U.S. entity is owned by the beneficiary and his spouse, and concluded: "Given this 
EAC 00 275 5 1560 
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evidence, it is apparent that there is no qualifying relationship between the petitioner and the foreign entity 
pursuant to 8 C.F.R. 214.2(1)(1)(ii)(G)." 
On appeal, counsel objects to the AAO's findings and asserts: 
The law does not say that the U.S. entity has to be a subsidiary of the foreign entity. A 
Majority of stock ownership in both companies is sufficient (Matter of Tessel). Less than 
majority ownership, but control, may be sufficient. (Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). It is a matter of fact that the beneficiary is a majority owner for both the 
entities. Thus, there is a qualifying relationship between the two companies. 
Counsel's assertions are not persuasive. Upon review of the previous decision, the AAO acknowledges that 
this office could have offered a clearer explanation for finding the petitioner's evidence deficient. However, 
the petitioner has not submitted evidence on motion to establish that the U.S. entity and the foreign entity 
have the requisite qualifying relationship. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 51 percent of 
outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., I&N Dec. 362. Without full disclosure of 
all relevant documents, CIS is unable to determine the elements of ownership and control. 
The petitioner claims that the beneficiary owns 50 percent of the foreign entity, but has failed to provide any 
supporting documentation to establish the current ownership and control of the company. The petitioner did 
not submit a copy of the foreign entity's current partnership deed, which would establish the beneficiary's 
actual percentage of ownership and degree of control in the foreign partnership at the time this petition was 
filed. In addition, the petitioner's statement that the beneficiary's partner actually manages the foreign entity 
suggests that the beneficiary does not exercise "de facto" control over the entity. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofici, 22 l&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
EAC 00 275 5 1560 
Page 10 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Absent this essential documentation, the AAO is unable to 
determine whether the United States and foreign entities possess the claimed affiliate relationship. 
Although counsel also cites on appeal that Matter of Tessel, Inc., 17 I&N Dec. 631 (Acting Assoc. Comm. 
1981) determined that a majority stock ownership in both companies is sufficient for the purposes of 
establishing a qualifying relationship, counsel has misconstrued the decision. In the Tessel decision, the 
beneficiary owned 93% of the foreign corporation and 60% of the petitioning organization, thereby 
establishing a "high percentage of common ownership and common management . . . ." It was further 
determined that "[wlhere there is a high percentage of ownership and common management between two 
companies, either directly or indirectly or through a third entity, those companies are 'affiliated' within the 
meaning of that term as used in section 10l(a)(15)(L) of the Act." Id. at 633. The facts in the present matter 
can be distinguished from Matter of Tessel because no one shareholder holds a majority interest in either 
corporation. The record, therefore, fails to demonstrate that there is a high percentage of common ownership 
and common management between the two companies. 
The petitioner has not submitted sufficient evidence to establish a qualifying relationship between the United 
States and foreign entities. For this additional reason, the petitioner may not be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent 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. 9 1361. Here, that burden has 
not been met. Accordingly, the previous decision of the AAO will be affirmed, and the petition will be 
denied. 
ORDER: The decision of the AAO dated October 12,2002 is affirmed.