dismissed L-1A Case: Jewelry And Apparel Trade

U.S. Department of Homeland Security 
20 Massachusetts Arc. N W . Rtn A.3032 
Wash~ngton. DC 20529 
ldentiEufng data deleled to ,,*- &arly onwd 
haore- 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 01 235 55369 Office: VERMONT SERVICE CENTER Date: NW 2 8 2005 
"- 
IN RE: Pet~tioner: 
Beneficiary: 
PETITION: Pet~tion for a Nonlmmlgrant Worker Pursuant to Sectlon lOl(a)(li)(L) of the Imm~gration 
and Nationality Act, 8 U.S.C. 3 1 lOl(a)(lS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Th~s 1s the dec~sion of the Admlnlstrat~ve Appeals Office m your case. All documents have been returned to 
the office that orig~nally decided your case. Any further lnqulry must be made to that office. 
dmlnistrat~ve Appeals Office 
EAC 01 235 55369 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denled the petltion for a nonlmmlgrant vlsa. The 
Admlnlstratlve Appeals Office (AAO) summarily dismissed the subsequently filed appeal. The matter IS now 
before the AAO on motlon to reopen. The motlon will be granted and the previous dectslon of the AAO will 
be affirmed. 
The petitioner states that it is engaged in trading fabrics, garments and 22 karat gold jewelry. It seeks to 
extend its authorization to employ the beneficiary temporarily in .the United States as Its .general manager 
pursuant to section 101(a)(15)(L) of the Immigration and Natlonallty Act (the Act), 8 U.SC 
6 1 lOl(a)(lS)(L). The petitloner, a New York corporation, clams to be a subs~dlary of m 
located In Delhi. India. The benefic~ary was ~nlt~ally granted a one-year penod of stay In L-IA status In order 
to open a new office In the United States and the petltloner now seeks to extend her stay for a three-year 
perlod. 
The dlrector denied the petltlon on January 21, 2001, concluding that the petitloner had not established that 
the beneficiary would be employed In a managerlal or executive capacity. On August 4, 2003, the AAO 
summarily dlsmlssed the pet~tloner's appeal pursuant to 8 C.F.R. tj 103.3(a)(l)(v), as the petitloner failed to 
identlfy any erroneous conclus~on of law or statement of fact for the appeal. 
On motlon, counsel asserts that the d~rector's declslon was based on presumption and mlsapplicatlon of legal 
standards. Counsel, cltlng several precedent dec~s~ons, asserts that a company's size alone, w~thout taklng Into 
account the reasonable needs of the organization, may not be the determlnlng factor In denylng a visa to a 
mult~national manager or executive. Counsel clalms that the beneficiary now supervises two employees and 
devotes 100 percent of her tlme to management dutles. Counsel submits a brlef, but no new evidence, In 
support of the motlon to reconsider. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality ~ct (the Act), 
8 U.S.C. 3 1 lOl(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 invblves specialized knowledge. 
The regulation at 8 C.F.R. 214.2(1)(3) states that an indlvldual petitlon 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 (1)(1 )(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, manageria1,'or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
EAC 01 235 55369 
Page 3 
(in) Ev~dence that the alien has at least one continuous year of full-t~me employment 
abroad w~th a qual~fy~ng orgamzatlon within the three years preceding the filing of 
the pctltlon. 
(IV) Evidence that the allen's pnor year of employment abroad was in a pos~tion that was 
managenal, executive or ~nvolved spec~alized knowledge and that the alien's prlor 
education, trammg, and employment qualifies himher to perform the intended 
servlces m the United States; however, the work In the Unlted States need not be the 
same work whlch the ahen performed abroad. 
The regulat~on at 8 C.F.R. 214.2(1)(14)(ii) also prov~des that a visa petit~on, which ~nvolved the openlng of a 
new office, may be extended by filing a new Fonn 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 Un~ted States entity has been doing business as defined m 
paragraph (l)(l)(i~)(H) of th~s section for the prevlous year; 
(C) A statement of the dut~es performed by the beneficiary for the prevlous year and the 
duties the beneficiary w~ll 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 accompan~ed by ev~dence of wages pald to 
employees when the benefic~ary will be employed m a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in the present matter is whether the beneficiary will be employed by the United ~tates.entit~'in a 
pr~marily 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, fimct~on, or component of 
the organization; 
(11) supervises and controls the work of other supervisory, professional, or managerla1 
employees, or manages an essential function w~thln the organlzatlon, or a department 
or subdivision of the organization; 
(111) ~f another employee or other employees are d~rectly supervised. has the authority to 
hlre and fire or recommend those as well as other personnel act~ons (such as 
EAC 01 235 55369 
Page 4 
promotion and leave authonzatlon), or ~f no other employee is d~rectly supervised, 
funct~ons at a senior level w~thin the organ~zat~onal hierarchy or with respect to the 
function managed; and 
(IV) exercises discretion over the day to day operattons of the activlty or functlon for 
which the employee has authonty. A first hne supervisor is not considered to be 
acting in a managerial capaclty merely by vlrtue of the superv~sor's supervisory 
dut~es unless the employees supervised are professional. 
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 organlzatlon m which the employee pnmarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(11) establishes the goals and policies of the organization, component, or function; 
(111) exerclses wide latitude in discretionary dec~s~on makmg, and 
(iv) receives only general supervision or direction from higher level executives. the board 
of directors, or stockholders of the organization. 
The petition was submitted on July 31, 2001. The petitioner ~ndicated on Form 1-129 that ~t had one 
employee, and attached a July 24, 2001 letter describing the benefic~ary's ~ob duties as follows: 
[The beneficiary] was transferred to the Unlted States to develop and expand business 
ventures spcclfically directed to utillze business opportunities and dlverslfy buslness 
activities. Since her arrival In USA, she has orchestrated annual sales of more than $8 million 
and IS actlvely pursuing other busmess opportun~tles. Her dutles as General Manager remaln 
the same; namely, negotiate contracts, credit terms, Identify new and improved products, and 
Independent declsion maklng to meet the projected demand based on market condttions. In 
addlt~on to her continued liaison between the U.S. and forelgn companle, [the benefic~ary] 
continues to rema~n responsible for overseas investment and business operations of the parent 
company. 
On September 21, 2001, the dlrector requested additional evidence to establish that the beneficiary would be 
employed m a managerial or executive capaclty. The director observed that the beneficiary's dutles, as 
described In the record, d~d not appear to relate pnmanly to policy and general operat~ons oversight, but 
appeared related to the day-to-day operation lnvolved in producing a product or provldrng a servlce. 
Accordingly, the dtrector Instructed the petitloner to provlde: (1) a breakdown of the number of hours devoted 
to each of the benefic~ary's job dut~es on a weekly basls; (2) an organizational chart for the Unlted States 
entity, as well as complete positlon descnptions for its employees; and (3) the number of supervisors under 
the benefic~ary's management, thelr job titles, and their job dutles. 
EAC 01 235 55369 
Page 5 
In a response dated December 12, 2001, the petlt~oner subm~tted the follow~ng job description for the 
beneficlary's role as general manager: 
[The beneficlary) is respons~ble for operation and management of [the pet~t~oner's] Import, 
sale and dlstrlbutlon of 22kt gold hand made jewelry pr~rnar~ly from India. Her dutles and 
average t~me spent Include: 
10% Identify the deslgn and jewelry to meet customers' requirements, 
30% Import wholesale- send purchase orders and follow-up 
45% Negotiate Contracts wlth retallers for sale, dlsplay, payment, credlt, returns, 
and all items of quality control. 
15% Arrange custom clearance and dellvery to retailers. 
The pet~tioner subm~tted an organizat~onal chart wh~ch deplcted the beneficlary as general manager over 
"custom clearance," "fre~ght forward service," a market~ng ass~stant who performs 
"market~ng servlces," a contracted attorney, and a contracted accountant. The pet~tloner also submitted a 
statement fiom ~ts pres~dent identifying ~ts management and personnel structure as follows: 
[The petlt~oner] Imports 22kt hand made gold jewelry pr~manly from Indla. The items for 
importat~on are ~dentified as a result of marketing effort ofustoms clearance 
and fretght forwarding services are obtalned from independent firms. The Items sold are 
elther delivered to andlor picked up by the retallers. Payments from sales are ut~lized to pay 
[for] the purchase and meet the expenses of small office. Legal and accounting servlces are 
obta~ned as needed. 
The d~rector denled the petlt~on on January 2 1, 2002 conclud~ng that the beneficiary would not be employed 
In a managerla] or executive capacity. The director observed that the benefic~ary alone was responsible for 
the day-to-day operations of the U.S. company. The AAO affirmed the director's declslan and summanly 
dtsm~ssed the petitioner's appeal on August 3,2004. 
On mot~on, counsel clalms that the director's determinat~on that the beneficiary will be engaged 111 pnmarlly 
non-managenal operational tasks of the company "IS based upon alleged 'appearance' andlor 'presumpt~on"' 
and "lacks the appllcatlon of appropnate legal cntena and the find~ngs of facts and conclusions of law to 
sustain the standard of judic~al rev~ew." 
Counsel incorporates into her brief a large portion of the U.S. District court's decision in Mars Jewelers, Inc. 
v. INS. 702 F.Supp. 1570 (N.D. Ga. 1988), in which the denial of the beneficiary's immigrant visa petition 
was deemed an abuse of discretion in part because the director based his decision on the small size of the 
petitioning company. Counsel claims that the beneficiary devotes 100 percent of her time to management of 
the company,. supervises a "Manager Operations" and sales clerk, and exercises absolute discretion in hjring, 
firing, negotiating contracts, arranging terms. and financing for the company. Counsel claims that the 
beneficiary's duties are the critical factor in determining whether the beneficiary se6es in a managerial or 
executive capacity, and asserts that the director placed undue emphasis on the size of the organization. 
EAC 01 235 55369 
Page 6 
Counsel's assert~ons are not persuasive. When examlnlng the executive or managerla] capaclty of the 
beneficiary, the AAO will look first to the petitloner's description of the job dunes See 8 C.F R. 
24.2()(3)(1). The petitioner's description of the job iduties must clearly describe the duties to be 
performed by the benefic~ary and ~nd~cate whether such dutles are in an executive or managerlal capaclty Id 
Counsel has provided no additional evidence on motion to persuasively demonstrate that the beneficiary 
would be employed in a managerial or executive capacity. Although counsel claims the beneficiary devotes 
100 percent of her time to management duties, the breakdown of the beneficiary's job duties submitted in 
response to the request for evidence shows that she primarily performs operational duties that allow the 
petitioner to provideits goods to U.S. customers. For example, the beneficiary devotes 10 percent of her time 
to "identify[ing] the design and jewelry to meet customers' requirements." This is a market research task and 
has not been shown to be a managerial or executive duty. The beneficiary allocates a total of 45 percent of her 
time to sending and following up on purchase orders and arranging custom clearance and delivery of goods to 
retailers. The, petitioner has not explained how purchasing and arranging delivery of products meets the 
definition of either managerial or executive capacity. The beneficiary devotes the remainder of her time to 
"[n]egotiat[ing] Contracts with retailers for sale, display, payment, credit, returns and all items of quality 
control." The petitioner has failed to distinguish these duties from routine sales and customer service tasks. 
The petitioner states that the beneficiary "is responsible for operation and management of [the petitioner's] 
importation, sale, and distribution of 22kt gold hand made jewelry," however, based on the job description 
provided, it is evident that the beneficiary is primarily engaged in non-qualifying operational duties necessary 
for the petitioner to import, sell and distribute jewelry in the United States. 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 Scientoioe Inlernalional, 19 I&N Dec. 593, '604 (Comm. 
1988). 
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 pritnarify performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, hc. t'. 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 pr~marily 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 observes that a company's size alone may not be the determining factor in denying a visa to 
a multinational manager or executive. See section 101(a)(44)(C), 8 U.S.C. 1101(a)(44)(6). 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. Systronics Corp. v. INS, 153 F. Supp. 2'd 7, 15 (D.D.C. 2001). Furthermore, 
in the present matter, the regulations provide strict evidentiary requirements for the extension of a "new 
office" petition and require CIS to examine the organizational structure and staffing levels of the petitioner. 
See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. tj 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. 
EAC 01 235 55369 
Page 7 
If the business does not have sufficient staffing after one year to rel~eve the benefic~ary from prlmar~ly 
perfonn~ng operational and administrative tasks, the petitioner 1s ~nellgible by regulation for an extenslon 
Counsel cites Natlonnl Hand Tool Corp v Pasquarell, 889 F.2d 1472, n.2 (5Ih Clr. 1989). and Mnrs Jewelers. 
IHC. v INS, 702 F.Supp. 1570, 1573 (N.D Ga 1988), to stand for the proposltlon that the small size of a 
pet~tloner w~ll not, by itself, undermine a finding that a beneficiary will act m a pnmarlly managerla1 or 
executive capacity. It 1s noted that both of the cases c~ted by counsel relate to immlgfant vlsa petttions, and 
not the extenslon of a "new office" non~mmlgrant visa. As the new office extension regulations call for a 
review of the petitloner's bus~ness actlvitles and staffing after one year, the cases c~ted by counsel are 
distinguishable based on the applicable regulations. See 8 C.F.R. 5 214.2(1)(14)(11). 
At the time the petition was filed, the petitioner claimed to have one employee. In response.to the request for 
evidence, the petitioner indicated that the beneficiary oversees an attorney, an accountant, customs clearance 
and freight forwarding services, and a marketing assistant whose duties are described as "marketing services." 
The petitioner provided no evidence of payments to the accountant or attorney, nor .has .the petitioner 
explained how the services of the contracted employees' obviate the need for the beneficiary to primarily 
conduct the petitioner's business. Likewise, the petitioner submitted no evidence to confirm the employment 
of the marketing assistant, such as a state quarterly wage report listing all employees,"for the third quarter of 
2001, the ,quarter within which the petition was filed. Without documentary evidence to support its 
statements, the petitioner does not meet its burden of proof in these proceedings. 'Mutter of Soffici, 22 I&N 
Dec. 158, 165 (Cornrn. 1998)(citing Matter of Treasure Craft, 14 I&N Dec. 190 (Reg. comm. 1972)). The 
petitioner did not submit evidence that it employed any subordinate staff members who would perform the 
actual day-to-day, non-managerial operations of the company. Regardless, 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 managerial or executive capacity, pursuant to sections .101(a)(44)(~) and (B) or 
the Act. As discussed above, the petitioner has not established this essential element of eligibility. . . 
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or medium 
size businesses. However, the AAO has also long required the petitioner to establish that the beneficiary's 
position consists of primarily managerial and executive duties and that the petitioner has sufficient personnel 
to relieve the beneficiary from performing operational and administrative tasks. The petitioner has not 
established the basic eligibility requirement in this matter. that the beneficiary is primarily performing 
managerial or executive duties. Although counsel asserts that the director abused his discretion by plac~ng 
undue emphasis on the size of the petitioner's organization; the MO finds that the director properly 
concluded that the beneficiary's actual duties would be performing essentially all of the petiti,oner's.non- 
qualifying operational tasks. This conclusion was reasonably drawn from the petitioner's job description for 
the beneficiary and was not based on mere speculation, as intimated by counsel. The actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. supp. 'I 103, 1.108 (E.D.N.Y. 
19b9), afd, 905 F.2d 41 (2d. Cir. 1990). 
On appeal, counsel claims that the petitioner's business is growing and the beneficiary is now supervising 
additional employees, including a subordinate manager. -The petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner 
or beneficiary becomes eligible,under a new set of facts. Matter of Michelin Tire Corp.. 17 I&N Dec. 248 
EAC 01 235 55369 
Page 8 
(Reg. Comm. 1978). The AAO need not and w111 not consider evidence of buslness growth or expanston that 
occurred subsequent to the filtng of the petition. The regulat~on at 8 C.F.R. 4 214,2(1)(3)(v)(C) allows the 
Intended United States operation one year w~thm the date of approval of the pet~tton to support an executlve 
or managerial positlon. There 1s no provlslon tn CIS regulations that allows for an extenston of thls one-year 
pertod. The record lndlcates that as of the date of filing, the benefictary was soIely responsible for all aspects 
of the petitloner's business. Accordmgly, the petlt~oner has not reached the polnt that ~t can employ the 
. beneficiary In a predomtnantly managerial or executive position. The petltloner has not submitted ev~dence on 
mot~on to overcome the d~rector's declsion on thls issue. 
Beyond the decision of the director, the petitioner has not established that it maintains a qualifying 
relationship with the foreign entity as required by 8 C.F.R. 3 214.2(1)(14)(ii)(A). The petitioner claims that 
the foreign entity owns 60 percent of its stock, and submitted, two stock certificates showing that 600 shares 
were issyed to the foreign entity and 400 shares were issued to the beneficiary. However, the petitioner' 2000 ' 
Internal Revenue Service (IRS) Form 1120, U.S. Corporation Income Tax Return, indicates at Schedule E 
that the beneficiary owns 100 percent of the company's common stock, which directly contradicts the 
petitioner's claim that the petitioner is a subsidiary of the foreign entity. In addition, the petitioner has failed 
to submit evidence to demonstrate that the foreign organization continues to do business, and thus it can not 
be concluded that the foreign entity is a qualifying organization as defined at 8 C.F.K. $'214.2(l)(ii)(~). For 
this additional reason, the petition may not be approved. 
An appllcat~on or pet~tion that falls to comply wlth the technical requirements of the law may be denled by the 
AAO even tf the Servlce Center does not tdentify all of the grounds for denial In. the lnit~al declslon. See 
Spencer Enterprises. he. v. Urzrted States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afjd. 345 F.3d 683 
(9th Clr. 2003); see also Dor v INS, 891 F.2d 997, 1002 n. 9 (2d Clr. 1989)(notlng that the AAO revlews 
appeals on a de novo basis). 
The pet~t~on wtll be denled for the above stated reasons, wtth each cons~dered as an Independent and 
alternative baas for demal. In vlsa pet~tlon proceedings, the burden of provmg el~g~bll~ty for the benefit 
sought remalns entlrely w~th the petltloner. Sectton 291 of the Act, 8 U S C 5 1361. Here, that burden has 
not been met. Accordingly, the prevlous decislon of the AAO will be affirmed, and the petltlon w~ll be 
denled 
ORDER: The decislon of the AAO dated August 4, 2003 is affirmed.