dismissed L-1A Case: Jewelry

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. A3042 
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Washington, DC 20529 
U.S. Citizenship 
and Immigration 
mLIC COPY 
FILE: SRC 02 274 52301 Ofice: TEXAS SERVICE CENTER Date: Al,lG~1~52005 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice 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. 
Administrative Appeals Office 
SRC 02 274 52301 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated in 2000 and 
claims to be in the import, export, and wholesale jewelry business. The petitioner claims that the U.S. entity 
is a branch of ., located in Mexico. It seeks to extend its authorization to 
employ the beneficiary temporarily in the United States as its president, at a yearly salary of $3 1,200.00. The 
director determined that the petitioner failed to submit sufficient evidence to establish that the beneficiary has 
been or would be employed primarily in an executive or managerial capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the evidence establishes that 
the beneficiary's duties have been and wilI continue to be primarily executive or managerial in nature. 
To establish L-1 eligibility under section lOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 10 1 (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. 8 214.2(1)(l)(ii) states, in part: 
Inlracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. tj 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(1) Evidence that the petitioner and the organization which employed or wiIl 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 
education, training, and empIoyment qualifies hidher to perform the intended 
SRC 02 274 52301 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The reguIation at 8 C.F.R. 9 214.2(1)(14)(ii) states that a visa petition under section lOl(a)(lSXL) 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 (1 )(l)(ii)(H); 
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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 1 101(a)(44)(A), provides: 
The tenn "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(9 Manages the organization, or a department, subdivision, function, or 
component of the organization; 
(i i) Supervises and controls the wo~k of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(i i i) 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. 5 1101(a)(44)(B), provides: 
SRC 02 274 5230 1 
Page 4 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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 fiom higher level 
executives, the board of directors, or stockholders of the organization. 
Section 10l(a)(44)(C) of the Act, 8 U.S.C. 4 1101 (a)(44)(C), provides: 
If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, the Attorney General shall take into account the reasonable 
needs of the organization, component, or function in light of the overall purpose and stage of 
development of the organization, component or function. An individual shall not be considered 
to be acting in a managerial or executive capacity (as previously defined) merely on the basis of 
the number of employees that the individual supervises or has supervised or directs or has 
directed. 
In a letter dated September 13, 2002, the petitioner stated that the beneficiary would be responsible for 
overseeing the vice-president and managers of the business. The petitioner also stated that the beneficiary 
would be responsible for determining the scope of the U.S. business operation and its specific goals, 
, implementing company policies, determining the company's annual budget, and future developments of the 
organization. The petitioner submitted a copy of its organizational chart that showed the beneficiary as 
president, with a vice-president, manager, and two salespersons as his subordinates. 
The director determined that the petitioner had failed to submit sufficient evidence to establish that the 
beneficiary would be performing job duties primarily in an executive capacity. The director stated that the 
petitioner had not demonstrated that the beneficiary would be involved in the supervision and control of the 
work of other supervisory, professional, or managerial employees who wouId relieve him from performing 
the services of the business. The director also stated that the beneficiary would not be primary engaged in 
executive duties where it had not been demonstrated that the services of a full-time president was required. 
The director noted that a majority of the beneficiary's time would be spent perfonning the non-executive, 
day-to-day operational duties of the organization. 
On appeal, counsel argues that the director failed to examine the reasonable needs of the company in 
assessing the petitioner's eligibility for benefits and services. Counsel also argues that the petitioner is a 
small business owner and that previous INS decisions were made in favor of the small business owner. On 
appeal, the petitioner submitted a sworn affidavit, copies of company invoices, and a list of jewelry suppliers 
as evidence. In the affidavit the beneficiary states in part: 
SRC 02 274 52301 
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To survive in today's economic, [sic] I have to do many works [sic] outside the "executive 
capacity." lNS should not compare my daily work with the work of CEO of big compatly 
[sic]. My business is a small Mexican business. It is a wonder that my business survives atid 
continues to general [a] profit every year . . . . I direct the management of my business. For 
example, I determine the budgets and [am] responsible for financial planning of my small 
business. I directly negotiated all the contract [sic] of large amount purchase and sales. I 
decide all the hiring of managers . . . I personally hire all the managers in both Mexico and 
USA . . . Everyday the managers from Mexico call me and report to me the business 
operation [sic]. I give managers orders in regard [sic] large payment and large purchase. The 
manager must have my permission before they negotiate with the banks or other creditors . . . 
I am the person [who] establishes the goals and policies of my business, component or 
function . . . I exercise wide latitude in discretionary decision-malung in the daily operation 
of both the Mexico and American business. For example, I make decision in large wholesale 
purchase (detail to follow). I make decision in the financial strategies in regard of loan and 
payment [sic]. I do not receive supervision or direction from any one [sic] in my daily 
operation of my business. 
The record reveals that the U.S. entity was incorporated in 2000 and that it has been doing business for more 
than one year prior to the filing of this petition. Therefore, it is not to be considered a new office pursuant to 
8 C.F.R. tj 214.2(1)(l)(ii)(F) for purposes of evaluating the beneficiary's proposed position. The petitioner 
infers that the U.S. entity is still in its developmental stages. However, 8 C.F.R. tj 214.2(1)(3)(v)(C) allows 
the intended operation one year within the date of approval of the petition to support an executive or 
managerial position. There is no provision in CIS regulations that allows for an extension of this one-year 
period. If the business is not sufficiently operational after one year, the petitioner is ineligible by regulation 
for an extension. In the instant case, the petitioner has failed to present sufficient evidence to establish that it 
has reached the point where it can employ the beneficiary in a predominantly executive position. Counsel 
asserts that similar extension of new office petitions have been granted by the AAO, and cites to unpublished 
decisions in support of his contentions. However, while 8 C.F.R. tj 103.3 (c) provides that Citizenship and 
Immigration Services (CIS) precedent decisions are binding on all CIS employees in the administration of the 
Act, unpublished decisions are not similarly binding. Further, an unpublished decision carries no precedential 
weight. See Chan v. Reno, 1 13 F.2d1068, 1073 (9~ Cir. 1997) (citing 8 C.F.R. 9 3.l(g)). As the Ninth Circuit 
says, "[U]npublished precedent is a dubious basis for demonstrating the type of inconsistency which would 
warrant rejection of deference." Id. (citing De Osorio v. INS, 10 F.3d 1034, 1042 (4& Cir. 1993)). 
Counsel correctly observes 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 section 10 1 (a)(44)(C), 8 U.S.C. tj 1 101 (a)(44)(C). However, it is appropriate for CIS to consider the size 
of the petitioning company in conjunction with other relevant factors, such as a company's small personnel 
size, the absence of employees who would perform the non-managerial or non-executive operations of the 
company, or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. 
Sysrronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especiaHy 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
Together, these facts can be used as indicators to help determine whether a beneficiary can remain primarily 
focused on managerial or executive duties or whether that person is needed, in large part, to assist in the 
company's day-to-day operations. The Iatter more accurately describes the beneficiary's role. The record 
demonstrates that the petitioner is in the importing, exporting, and wholesale of jewelry business. Although 
the petitioner claims to employ five individuals, the beneficiary has stated "to survive in today's economic 
SRC 02 274 52301 
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[sic], I have to do many works outside the executive capacity." Further, there has been no independent 
documentary evidence submitted to establish that there are any individuals currently employed by the U.S. 
entity to perfonn the functions of the organization or to relieve the beneficiary from performing such duties. 
When examining the capabilities of an established organization, future projections are not sufficient to 
establish that the petitioner is developed to the point where it can support an employee in a primarily 
managerial or executive position. A visa petition may not be approved based on speculation of future 
eligibility or after the petitioner becomes eligible under a new set of facts. See Matter of Michelin li're Corp., 
17 I&N Dec. 248 (Reg. Comm. 2978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity, CIS must take into account the reasonable needs 
of the organization, in light of the overall purpose and stage of development of the organization. To establish 
that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must 
specifically articulate why those needs are reasonable in light of its overall purpose and stage of development. 
In the present matter, the petitioner has not explained how the reasonable needs of the petitioning enterprise 
justify the beneficiary's performance of non-managerial or non-executive duties. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof' in these 
proceedings. Matter of Treasure Crafr of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
The petitioner has provided no comprehensive description of the beneficiary's duties that would demonstrate 
that he will be directing the management of the organization or a major component or function of the 
organization, that he will be establishing goals and policies, that he will be exercising a wide latitude in 
discretionary decision-making, or that he would receive only general supervision or direction from higher 
level individuals. There has been no evidence submitted to show the percentage of time the beneficiary will 
spend performing executive versus non-executive duties. 
The petitioner claims that the beneficiary will direct the overall management of the organization. However, 
rather than managing a major department, subdivision, function, or component of the organization, it appears 
that the beneficiary will actually be performing the services of the business. As case law confirms, 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). The petitioner has failed to submit sufficient evidence to demonstrate 
that the beneficiary will direct the overall management of the organization. For this reason, the petition may 
not be approved. 
Beyond the decision of the director, the remaining issue in this proceeding is whether the petitioner has 
established that a qualifying relationship continues to exist between the petitioning entity and a fore@ entity 
pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). In this matter, the petitioner submitted an untranslated copy of a 
purported business registration for the foreign entity. Because the petitioner failed to submit certified 
translations of the documents, the AAO cannot determine whether the evidence supports the petitioner's 
claims. See 8 C.F.R. $ 103.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any 
weight in this proceeding. The petitioner also submitted a copy of a U.S. entity stock certificate, dated 
October 23, 2000, which shows that 1,000 shares of stock were issued to 1 This 
evidence alone is insufficient to establish the existence of a qualifying relationship between the U.S. entity 
and a foreign entity. Furthermore, the petitioner has not persuasively demonstrated that the foreign entity will 
continue doing business during the alien's stay in the United States. For these additional reasons, the petition 
may not be approved. 
SRC 02 274 52301 
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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. 8 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.