dismissed L-1A Case: Jewelry Business

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 02 163 525 12 Office: VERMONT SERVICE CENTER Date: Abl8 s 3 m 
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) 
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. 
obert P. Wiemann, Director 
B 
Administrative Appeals Office 
EAC 02 163 525 12 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to documentary evidence contained in the record, the petitioner was established in 2001 and is 
described as a jewelry business. The petitioner claims to be a subsidiary of Aurea SRL, located in Rome, 
Italy. It claims one employee with a gross annual income of $132,266.00. It seeks to extend its authorization 
to employ the beneficiary temporarily in the United States as its marketing and managing director at a yearly 
salary of $20,000.00. The director determined that the petitioner had not submitted sufficient evidence to 
demonstrate that the beneficiary would be employed by the U.S. entity primarily in a managerial or executive 
capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties will be 
managerial or executive in nature. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 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. 5 214.2(1)(l)(ii) states, in part: 
Intracompany 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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
EAC 02 163 52512 
Page 3 
education, training, and employment qualifies hirnlher 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. 5 2 14.2(1)(14)(ii) states that a visa petition under section 10 1 (a)(15)(L) 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); 
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 issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary will 
be employed by the U.S. entity primarily in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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 
EAC 02 163 525 12 
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the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B), provides: 
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 
(14 Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In response to the director's request for additional evidence to demonstrate the beneficiary's proposed job 
duties, the petitioner described them as: 
Meetings with potential clients - consultations with client in order to evaluate needs, 
personal image, etc. (20 hourslweek); 
Travel time to client's residencehusiness (3 hourslweek); 
Meeting with consultants, such as lawyers, accountant, etc. (1 hourlweek); 
Meeting with diamond dealers (3 hourslweek); 
Training of future managerlmarketer (4 hourslweek); 
Searching for a better location ($4 hourlweek); 
Preparing brochures and sales materials (3 hourslweek); 
Creating strategy for name recognition in New York (% hourlweek); 
Analysis of the competition - Gathering data on competitors and performing price, sales, 
marketing and distribution analysis (2 hourslweek); 
Creating an analysis that forecasts sales volume based on sell through [sic] and market 
trends for the New York City market (2 hourslweek); 
Gather and analyze general customer preferences and buying habits (2 hourslweek); 
Preparing market proposals (1 hourlweek); 
Researching and analyzing distribution methods that are relevant and effective in a city 
such as New York (1 hourlweek); 
Preparing business reports to be reviewed by other owners (1 hourlweek); 
Supervising timely delivery of merchandise, negotiate payment terms, and oversee 
customer satisfaction (2 hourslweek); 
Oversee budget and forecast fbtwe financial needs in order to expand operations thereby 
allowing for future hirings [sic] (2 hourslweek); 
Analyzing jewelry trends worldwide and in New York (Ihourlweek); 
Creating and maintain database of clients and their preferences (1 hourlweek); 
Creating active presentation on Power Point (1 hourlweek); and 
EAC 02 163 52512 
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Introducing styles to department stores for future expanded marketing (% houdweek). 
The petitioner submitted an organizational chart demonstrating that the U.S. entity's hierarchy consists of the 
beneficiary as director of marketing and management and an assistant to director of marketing and 
management. The petitioner also submitted a copy of the assistant's resume, which described his duties as: 
Assisting in analyzing the New York market to help*expand the customer base. 
Assisting in preparing training booklet for future employees. 
Participating with the director of marketing in meeting with customers to create a 
feedback chart of client tastes. 
In denying the petition, the director determined that the evidence submitted was insufficient to demonstrate 
that the beneficiary will be employed by the U.S. entity primarily in a managerial or executive capacity. The 
director noted that the job duty descriptions given were vague and did not clearly describe the beneficiary's 
day-to-day activities. The director also noted that it did not appear that the U.S. entity, being formed in 2001, 
employing one individual, and reporting a net annual income of $51,116.00 would realistically be in a 
position to utilize the beneficiary as a viable manager. The director concluded by stating that there had been 
no evidence submitted to show that the beneficiary would be managing subordinates who could relieve her 
from performing non-qualifying duties, or that the petitioner would be able to support a managerial or 
executive position. 
On appeal, counsel disagrees with the director's decision and asserts that the beneficiary has been performing 
as marketer, manager, and trainer for the U.S. entity. Counsel also asserts that the assistant to the beneficiary 
is employed by the U.S. entity, had been working without compensation, and is being trained by the 
beneficiary to eventually take over her position. 
Upon review, counsel's assertions are not persuasive. The evidence submitted does not establish that the 
beneficiary will be employed by the U.S. entity primarily in a managerial or executive capacity. In 
evaluating whether the beneficiary is employed in a primarily managerial capacity, the AA0 will look first to 
the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's 
description of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. Further, 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 beneficiarypvimavily 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). Counsel contends that the beneficiary and her assistant are employed by the U.S. entity. 
Counsel further contends that the beneficiary is in the process of training the assistant to eventually take over 
her position. A review of the assistant's job description fails to demonstrate that he will be supervised by the 
beneficiary; that he is employed in a managerial, professional, or supervisory position; or that he actually will 
perform the day-to-day non-qualifying duties of the U.S. entity. Consequently, there is insufficient evidence 
to show that the beneficiary will perform the high-level responsibilities as defined, or that she will primarily 
perform those duties rather than spending the majority of her time performing the day-to-day functions of the 
organization. 
In addition, the petitioner described the beneficiary duties as: researching the market, marketing the 
petitioner's product, shipping the product, performing sales functions, and negotiating contracts, etc. Since 
EAC 02 163 525 12 
Page 6 
the beneficiary actually performs administrative duties as well as clerical work, she is performing tasks 
necessary to provide a service or product and these duties will not be considered managerial or executive in 
nature. 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). 
Although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. The assistant's duties are described as "assisting in analyzing the New 
York market to help expand the customer base," "assisting in preparing training booklet for future 
employees," and "participating with the director of marketing in meeting with customers to create a feedback 
chart of client tastes." This description is insufficient to show that the subordinate is employed in a 
supervisory, professional, or managerial capacity. A first-line supervisor will not be considered to be acting 
in a managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
professional. Section 101(a)(44)(A)(iv) of the Act. Because the beneficiary is primarily performing non- 
qualifying duties, the beneficiary cannot be deemed to be primarily acting in a managerial or executive 
capacity. 
Even though the petitioner claims that the beneficiary directs and manages the petitioner's sales, marketing, 
and customer service activities, it does not claim to have anyone on its staff to actually perform the sales, 
marketing, and customer service functions. The petitioner has noted that the beneficiary was in the process of 
training the subordinate at the time the petition was filed. The subordinate stated that he was an "assistant" to 
the beneficiary and that he anticipates being trained for the next two years to take over the beneficiary's 
position. Thus, either the beneficiary herself is performing the sales, marketing, and customer service 
functions or she does not actually manage the sales, marketing, and customer service functions as claimed by 
the petitioner. In either case, the AAO is left to question the validity of the petitioner's claim and the 
remainder of the beneficiary's claimed duties. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). If the beneficiary is performing the sales, 
marketing, and customer service functions the AAO notes that 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, supra. 
The record shows that the U.S. entity was established in 2001. It is inferred throughout the record that the 
petitioning entity is still in its developmental stage. However, the record shows that the entity has been 
operational for more than one year and therefore, it will be treated as an established entity pursuant to 
8 C.F.R. $ 214.2(1)(3)(v)(C). As an established entity, the petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition. Furthermore, 8 C.F.R. $ 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, the petitioner is ineligible by regulation for an 
extension. In order to qualify for an extension of the L-1 visa after an organization becomes operational, the 
petitioner must establish the need for an executive or managerial employee. Although the petitioner claims 
that the events following the 911 1 attacks detrimentally affected its business, the company is still expected to 
conform to the statutory and regulatory requirements in petitioning for an extension of the beneficiary's stay 
as an intracompany transferee. The evidence fails to demonstrate that the petitioner has reached the point 
that it can employ the beneficiary in a predominantly managerial or executive position. Based upon evidence 
EAC 02 163 52512 
Page 7 
contained in the record, it is apparent that the beneficiary has been performing Oand will continue to primarily 
perform the day-to-day services of the organization rather than perform primarily in a managerial or executive 
capacity. 
In summary, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed by the U.S. entity primarily in a managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
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. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.