dismissed L-1A Case: Jewelry

U.S. Department of llomeland Security 
20 Mass. Ave. N.W. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC 04 168 DEC 2005 
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. § 1101(a)(15)(L) 
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. 
- 
Robe 
Administrative Appeals Office 
WAC 04 168 50987 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its vice president of 
international sales and marketing 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. 4 1 101(a)(15)(L). The petitioner is 
a corporation organized in the State of Arizona that is engaged in the design, manufacture, and sale of 
jewelry. The petitioner claims that it is the subsidiary of , located in Sandton, 
South Africa. The beneficiary was initially granted a one-year period of stay to open a new office in the 
United States, and the petitioner now seeks to extend the beneficiary's stay for three more years. 
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 filed an appeal in response to the denial. On appeal, counsel for the petitioner contends that the 
director erred by finding that the beneficiary would not be employed in a primarily managerial or executive 
capacity. In support of this contention, counsel submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimrnigrant 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 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. § 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 (I)(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 
education, training, and employment qualifies himlher 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. 
WAC 04 168 50987 
Page 3 
The regulation at 8 C.F.R. 4 214.2(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 (I)(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 managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The primary issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(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. 
WAC 04 168 50987 
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Section 101(a)(44)(B) of the Act, 8 U.S.C. 4 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, the petitioner submitted an attachment identified as "Attachment B" to the Form 1-129 
which listed the beneficiary's duties while in the United States. Specifically, the duties were identified as 
executive in nature and were listed as follows: 
Establish and Develop strategic direction and action plan according to Board of 
Directors initiatives; 
Support and coordinate with other corporate organizations in implementing group 
strategies and policies; 
Develop and implement marketing policies and strategies; 
Identify additional opportunities in jewelry distribution and sales; 
Develop market strategies for further expansion into Asia, Europe and Australia; 
Develop and implement advertising strategies to customers and market; and 
Exercise discretionary authority for personnel recruitment and termination, 
evaluation of work performance, and recommendation of other personnel action 
The petitioner submitted a copy of the beneficiary's resume, which listed his duties while in the United States 
for the previous year. Specifically, under a heading identifying the nature of the business as "Jewelry 
Distribution and Production," the following responsibilities were listed: 
Oversee stock receiving in the Anzona office of [the petitioner]; 
Oversee stock ordering and purchasing; 
Account management of large retail customers with chain stores in excess of 200 
stores; 
Merchandising and systems control; 
Conclude various supply agreement with large U.S. manufacturers; 
Oversee importing and exporting aspects of shipping; and Negotiated supply 
agreements with international manufacturers; 
Consult with Board of Directors in establishing and implementing policies and 
strategies for [the foreign entity's] business; 
Develop new business and markets; 
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Develop and implement business plan to increase sales of [the foreign entity's] 
products; 
Develop market strategies for expansion of [the foreign entity's] products throughout 
the United States and internationally; 
Participate in business and strategic negotiations; 
Develop and implement business allegiance strategies; and 
Exercise discretionary authority for personnel recruitment and termination, 
evaluation of work performance, recommendations and other personnel actions. 
The director found this initial description of the beneficiary's duties insufficient and consequently issued a 
request for evidence on May 28, 2004. The request required the petitioner to submit an organizational chart 
for the U.S entity which showed the beneficiary's position in the organizational hierarchy as well as all 
employees under the beneficiary's supervision. In addition, the director requested a more detailed description 
of the beneficiary's duties as well as quarterly wage reports and a payroll summary verifying the employees of 
other persons. 
In response, the petitioner submitted a list of three administrative staff members who specialized in customer 
service and alleged that the beneficiary oversaw their activities. In addition, a separate list of duties was 
submitted, which is reproduced below: 
Daily correspondence with admin team and sales team in Los Angeles 
- Complete management of [the foreign entity] and [foreign entity] brand development 
in the USA 
- Order placing 
Bank accounts and financial overview 
Liaising with suppliers in Hong Kong and Asia 
Management of all banking wire transfers 
- Continued strategy planning with o further develop the business 
- Bi weekly travel to Los Angeles office to conduct meetings with employees and sales 
teams 
Assistance in range development and merchandise planning 
Traveling toshow Las Vegas, JA New York winter and summer shows 
- Travel 3 x per annum to Hong Kong to plan buying and merchandising and to meet 
with suppliers 
Additionally, a February 12, 2003 declaration from the petitioner's president further discussed the nature of 
the beneficiary's duties in general terms while discussing the responsibilities of the vice president. The 
declaration stated: 
The Vice President will primarily be responsible for the following activities: 
WAC 04 168 50987 
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Establish and develop strategc direction and action plan according to Board 
of Directors initiatives; 
Support and coordinate with other corporate organizations in implementing 
group strategies and policies; 
Develop and implement marketing policies and strategies[;] 
Identify additional opportunities in jewelry distribution and sales; 
Develop market strateges for further expansion into the United States, Asia, 
Europe and Australia; 
Develop and implement advertising strategies to customers and market; 
Exercise discretionary authority for personnel recruitment and termination, 
evaluation of work performance, and recommendation of other personnel 
action; 
Consult with Board of Directors in establishing and implementing policies 
and strateges for [the foreign entity's] business; 
Develop new business and markets; 
Develop and implement a business plan to increase sales of [the foreign 
entity's] products through [the petitioner]; 
Develop market strategies for expansion of [the foreign entity's] products 
throughout the United States and internationally; 
Participate in business and strategic negotiations; 
Develop and implement business allegiance strategies; and 
Exercise discretionary authority for personnel recruitment and termination[,] 
evaluation of work performance, recommendations, and other personnel 
actions. 
The AAO notes that these duties listed above are very similar to the duties initially identified with the 
petition. 
On July 3, 2004, the director denied the petition. The director found that the evidence in the record failed to 
establish that the beneficiary would be functioning in a primarily managerial or executive capacity. 
Specifically, the director concluded that the beneficiary would be performing the day-to-day tasks of the 
organization. The director further concluded that the beneficiary was performing the tasks necessary to 
provide the petitioner's goods and services and that it had not been demonstrated that the beneficiary was 
managing an essential function. Finally, the director concluded that the petitioner had not reached the point 
where it could employ the beneficiary in a primarily managerial or executive capacity, noting that at the time 
of the petition's filing it employed only three subordinate administrative staff members. 
On appeal, the petitioner restates the beneficiary's qualifications and asserts that the short time in which the 
petitioner has been a functioning company should be considered when reviewing the actual duties performed 
by the beneficiary. Counsel alleges that the petitioner is still in the start up phase and that the beneficiary did 
not amve in the U.S. entity until September 2003 to begin the necessary tasks. Counsel hrther asserts that 
the beneficiary now oversees a number of new staff members, including managers, and that the beneficiary is 
also managing a key function within the petitioner. Furthermore, the petitioner asserts that, although the 
WAC 04 168 50987 
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beneficiary does perfom some of the day-to-day duties of the business, the percentage of time spent on these 
tasks in comparison to his managerial and executive duties is minimal. 
Upon review, the petitioner's assertions are not persuasive. Whether the beneficiary is a manager or executive 
employee turns on whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. In this case, the petitioner asserts 
that the beneficiary is an executive by virtue of his position title, experience, and associated duties. However, 
the description of duties provided is vague and fails to specify the exact nature of the claimed executive 
duties. 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. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff, 905 F.2d 41 (2d. Cir. 
1990). 
At the time of filing, the petitioner was an almost two-year old jewelry retailer that claimed to have a gross 
annual income of $73,630. The firm employed the beneficiary as its vice-president and claimed to employ 3 
administrative staff members responsible for performing customer service functions. The description of the 
beneficiary's duties, provided in the initial letter of support, is vague and seems to merely paraphrase the 
regulatory definitions. Specifically, the identification of duties such as "exercise discretionary authority for 
personnel recruitment," "develop new business and markets" and "develop market strategies" in the initial 
petition did little to clarify what the beneficiary does on an average workday. In fact, these duties are 
extremely similar to the executive duties set forth in Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 
1101(a)(44)(B). In response to the request for evidence, a more detailed description of duties was submitted, 
which indicated that the beneficiary traveled to trade shows, placed orders, and managed banking functions. 
Essentially, the claim that the beneficiary places orders and handles banking is inconsistent and contradictory 
to the petitioner's claim that the beneficiary handles only executive functions. ln addition, the fact that the 
beneficiary travels bi-weekly to California and attends trade shows in both the winter and summer months 
without a sales staff or subordinate managers to run the business in his absence suggests that the beneficiary is 
single-handedly running the operations of the petitioner. 
The actual duties themselves reveal the true nature of the employment. Id. In reviewing the beneficiary's 
stated duties, it appears that the majority of his time is devoted to the company's marketing and acquisitions. 
Furthermore, it appears that based on the petitioner's statements, the petitioner is still in a start-up phase. 
Since the beneficiary apparently oversees only three administrative staff members who focus on customer 
service, there does not appear to be sufficient staff to handle the sales functions, the marketing functions, the 
trade shows, or even the accounting and banking responsibilities. Consequently, it appears that all of these 
functions fall on the shoulders of the beneficiary. 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 Scie~tology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Furthermore, the subordinate staff members the beneficiary is claimed to oversee have not been verified, 
since despite the director's request, quarterly wage reports and payroll summaries for the employees were not 
submitted. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. 5 103,2(b)(14). Although the petitioner discusses a joint venture agreement in 
which the petitioner is engaged and explains the presence of these employees through a related agreement, 
WAC 04 168 50987 
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this claim is insufficient to satisfy the requirements in this matter. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, the AAO notes that for the first time on appeal, counsel asserts that the beneficiary oversees a 
key function of the petitioner while simultaneously alleging his qualifications in a managerial and executive 
capacity. Specifically, counsel asserts that the marketing strategies and the marketing department of the 
petitioner are the keys to the petitioner's success, and thus the beneficiary's involvement in the petitioner's 
marketing is an essential function. This assertion is not persuasive. On appeal, a petitioner cannot offer a 
new position to the beneficiary or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169,176 (Assoc. Comrn. 1998). 
Based on the petitioner's representations, it does not appear that the reasonable needs of the petitioning 
company might plausibly be met by the services of the beneficiary as vice president and three administrative 
staff members. The petitioner indicates that the business is still developing, and once fully operational, it will 
hire additional employees. It is evident, therefore, that without the required staff, the beneficiary is required 
to perform the duties that would normally be delegated to subordinate employees in order to keep the business 
operational. Although the petitioner asserts that the beneficiary is truly acting in a managerial or executive 
capacity, the petitioner provides no independent evidence to corroborate these claims. As previously 
discussed, the petitioner does not meet its burden of proof in these proceedings without documentary evidence 
to support its statements, Matter of Soflci, 22 I&N Dec. at 165. Furthermore, the assertions of counsel wiil 
not satisfy the petitioner's burden of proof. The unsupported assertions of counsel on appeal do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of laureano, 19 I&N Dec. 1 
(BIA 1983); Matrer of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
CIS must take into account the reasonable needs of the organization, in Iight of the overall purpose and stage 
of development of the organization. In the present matter, however, the regulations provide strict evidentiary 
requirements for the extension of a "new office" petition and require CIS to examine the organizational 
structure and staffing Ievels of the petitioner. See 8 C.F.R. 8 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 
214.2(1)(3)(v)(C) allows the "new office" 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 does not have sufficient staffing after one year to relieve the 
beneficiary from primarily performing operational and administrative tasks, the petitioner is ineligible by 
regulation for an extension. Although the petitioner on appeal alleges that numerous new employees will 
soon be retained and that the delay in becoming fully operational is attributed to the start-up phase of the 
petitioning entity, these assertions are not persuasive. The petitioner must establish eligibility at the time of 
fiIing. 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). In the instant 
WAC 04 168 50987 
Page 9 
matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. 
For the reasons set forth above, the petitioner has failed to establish that the beneficiary's duties would be 
primarily managerial or executive in nature. For this reason, the petition may not be approved. 
Beyond the decision of the director, the petition also may not be approved because there is insufficient 
evidence that a qualifying relationship exists between the petitioner and the foreign entity. Specifically, the 
record indicates that ign entity, - 
The petitioner 1 s 50% of the petitioner, and that 
the true affiliation of the companies lies with a holding company identified as '- 
However, it would appear that an affiliate relationship could exist between the parties by way of the 
ownership interests of. in both entities. The record indicates that = 
owns 100% of the petitioner, and not 50% as claimed by the petitioner. The Minutes of 
the Shareholder's meeting of the petitioner indicate that 5,000 shares have been authorized, and an 
accompanying ledger indicates that those 5,000 shares were issued to 
January 29, 2003. However, the petitioner claims that 5,000 shares were issued to b n October 1, 
2003 in exchange for his services, which suggests that 10,000 shares are now outstanding. There is no 
evidence that the petitioner authorized the issuance of an additional 5,000 shares. Specifically, the petitioner's 
Form 1120, u.s.- Corporation Tax Return, for the year 2003, filed in May 2004, indicates that = 
is the sole owner of the petitioner, while also indicating on Form 5472 that = 
is a direct foreign shareholder of the petitioner. Consequently, the petitioner's claims of ownership are I inconsistent and confusing and fail to clarify the true relationship between the parties. 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). For this 
additional reason, the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER. The appeal is dismissed.