dismissed L-1A Case: Jewelry Wholesale

U.S. Department of Homeland Security 
20 Masachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
pix . "- +i r*&i, U. S. Citizenship and Immigration 
bv~ion of persona privac) 
File: EAC 03 066 53542 Office: VERMONT SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN 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 
EAC 03 066 53542 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant bisa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss thz appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of New Jersey that i:; engaged 
in the wholesale of gold and silver jewelry and silver house wares. The petitioner claims that it is the affiliate 
of the beneficiary's current employer, Flamingo Industria de Ourivesaria, S.A., located in Rio Tinto, Portugal. 
The petitioner seeks to employ the beneficiary as its president. 
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 subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
erred in his application of the relevant statute and that the beneficiary will be performing duties that qualify as 
executive in nature. In support of this assertion, the petitioner submits additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(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. 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 (I)(l)(ii)(G) of this section 
(ii) Evidence that the alien will be employed in an executive, managerial, or specializetl 
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 hirnlher to perform the intended 
services in the United States; however, the work in the United States need not be thr: 
same work which the alien performed abroad. 
EAC 03 066 53542 
Page 3 
At 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 1101(a)(44)(A), defines the term "managerial capac~ty" 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 a.s 
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), 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 a letter dated December 4, 2002, submitted with the initial petition, the petitioner described the 
beneficiary's job duties as follows: 
[The beneficiary] feels that his presence is required in the U.S. at this time to oversee the 
continuous expansion and growth of the U.S. Company to deal with issues such as securing 
credit for the company. He will have full authority over the U.S. affiliate as he does overseas. 
EAC 03 066 53542 
Page 4 
[The beneficiary] has been employed as President of the overseas company since it's [sic] 
inception and he now wishes to come to the U.S. to oversea [sic] the U.S. Company. He will 
remain as President of the overseas parent company by returning to Portugal at various times 
during the year. His employment on [sic] the U.S. will be full-time and his salary will t~e 
$50,000. 
On January 9, 2003, the director requested additional evidence to establish that the beneficiary would be 
employed in a managerial capacity. Specifically, the director requested: (1) a comprehensive description of 
the beneficiary's duties and an explanation as to how the proposed duties will be managerial or executive in 
nature; (2) a breakdown of the number of hours devoted to each of the beneficiary's job duties on a weekly 
basis; (3) an organizational chart for the petitioning company depicting the subordinates under the 
beneficiary's supervision; (4) a list of employees that will be under the beneficiary's supervision in the United 
States including job titles, educational credentials and brief position descriptions for these employees; (5) a 
copy of the petitioner's business plan for continuing the company's operations in the United States, including 
specific dates for each proposed action, for one year; and (6) evidence of the proposed future staff~ng of the 
petitioner's organization, including the number of proposed employees and the duties to be performed by each 
employee. 
In response, the petitioner submitted a letter from the beneficiary dated January 9, 2003 explaining his need 
for an L-1A visa; an organizational chart for the foreign entity only; and the petitioner's most recent product 
brochure. Responding to the director's request for a comprehensive description of the beneficiary's duties and 
a detailed description of the petitioner's current and proposed staffing levels, the beneficiary stated the 
following: 
In response to your specific question I am the president of this company and all final decision 
making authority, whether in the US affiliate or the Portuguese parent company remains in 
my hand. 
I have previously been entering the United States on B-2 visas every 2-3 months to keep a 
close tab on our ever-expanding U.S. operation. It is my current plan to be in the United 
States in capacity of president of the US Company for about only 3 months out of the year. 
I am requesting the L-1 status for varied reasons. The main reason is that my company is in 
the process of expanding our current physical plant in the US and our office manager in the 
US has lined up some properties for me to inspect upon my next visit in the U.S. 
The financing for the new building is currently being set up and any loans to the U.S. 
Company must include my signature and social security number to have any credit extended 
to the company. I cannot obtain a social security number on a B-2 visa. In addition, I want to 
obtain a New Jersey driver's license to use when I come to the U.S. and I also must have a 
valid social security number. In order to drive the company's vehicle I need to be included on 
the vehicles [sic] insurance, and again for that I need a New Jersey driver's license. 
EAC 03 066 53542 
Page 5 
As to our future business plan I previously stated that our company has planned to expand to 
a bigger location in the near future. Currently our office manageremairls 
our only employee. We intend to hire sales people as soon as we expand our physical plant. I 
point out that the monthly sales are now in excess of $150,00O/month. Given the present 
trend with the new facility and additional sales person we expect that sales will increase to 
$180,000 month during the next year. This increase in business further require [sic] that I be 
in the US for certain period of time this year, though I will remain in Portugal for the majority 
of the year. I feel that my situation will be best served by being granted an L-1 visa. 
On March 11, 2003, the director denied the petition. The director determined that the beneficiary would not 
be employed in a primarily managerial or executive capacity, noting that it appears that he would be involved 
in the non-managerial day-to-day operations of the company, given the size and nature of the organin.ation. 
On appeal, counsel for the petitioner asserts that the director erroneously concluded that the beneficiary would 
not be employed in qualifying managerial or executive capacity, contrary to the evidence presented. Counsel 
submits the following description of the beneficiary's duties: 
[Tlhe beneficiary in this case is the majority owner and president of both the U.S. affiliate and 
the Portuguese parent company. As such he is the final decision maker, policy maker, etc. of 
both companies. He answers to no one. He has [sic] a president of both companies made a 
decision that his presence in the US is required given the companies [sic] continued growth 
and plan [sic] future expansion. 
Counsel also notes the beneficiary's desire to enter the U.S. for a brief period to view properties anti sign off 
on loans, and the need for a social security number and driver's license which cannot be obtained if he enters 
the U.S. as a visitor. Citing the Foreign Affairs Manual, 9 FAM 41.54 N.8.2, counsel asserts that the 
beneficiary "has made a valid business decision that, given the overall purpose and stage of development of 
the company, the organization would best be served by his presence in the U.S. as president of the company 
for a short period of time during the year." 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a managerial or executive capacity. When examining the executive or managerial capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the job duties. See :3 C.F.R. 
214.2()(3)(). 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. 
Although the petitioner has identified the beneficiary's role as that of an executive, the petitioner has provided 
a very vague and nonspecific description of the beneficiary's duties that fails to demonstrate what the 
beneficiary would do on a day-to-day basis. For example, the beneficiary is described as "0verst:eing the 
expansion and growth of the company," and having "full authority for decision making and operations." The 
petitioner did not, however, define the company's expansion plans, specify how he would exercise authority, 
or explain who would be responsible for carrying out the day-to-day operations of the company which the 
beneficiary will allegedly oversee. Going on record without supporting documentary evidence is not sufficient 
EAC 03 066 53542 
Page 6 
for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972). Further, rather than providing a specific description of the beneficiary's 
duties, the petitioner generally paraphrased the statutory definition of executive capacity. See section 
101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A). However, conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient to meet the petitioner's burden of prooi'. Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990); Avyr 
Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The actual duties themselves reveal the true 
nature of the employment. Fedin Bros. Co. Ltd. v. Sava, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), (zff'd, 905 
F.2d 41 (2d. Cir. 1990). 
In the request for evidence, the director requested that the petitioner submit a comprehensive description of 
the beneficiary's duties, including a breakdown of the percentage of time spent on each duty, as well as an 
organization chart, a business plan, and detailed information regarding its current and proposeti staffing 
levels. The petitioner failed to submit the requested information and documentation. Instead, the petitioner 
submitted only an ambiguous assertion that the beneficiary has final authority with respect to company 
decisions. With respect to its business plan and organization structure, the petitioner stated that the company 
employs only an office manager, but that the petitioner plans to increase sales, move to a larger location and 
eventually hire a sales person. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 3 103.2(b)(8). The 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). For this reason, the petition will not be approved. 
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 prove 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 (9& Cir. July 30, 1991). Based on the current record, which consists entirely of a few vague 
executive-level duties paraphrased from the regulations, the AAO is unable to determine whether tht: claimed 
executive duties constitute the majority of the beneficiary's duties, or whether the beneficiary would primarily 
perform non-qualifying administrative or operational duties. 
Although specifically requested by the director, the petitioner's description of the beneficiary's job duties 
does not establish what proportion of the beneficiary's duties is executive in nature, and what proportion is 
actually non-executive. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). It should be 
noted that there is currently only one employee working for the petitioner as an "office manager" who is 
apparently also in the U.S. in L-1 status. The petitioner has not provided a description of the office manager's 
duties. There is no mention in the record of any marketing, sales, accounting or clerical staff working for the 
petitioning enterprise, which operates as a wholesaler of gold and silver jewelry and related items. 
Collectively, this brings into question how much of the beneficiary's time can actually be devoted to 
managerial or executive duties. Although both employees have managerial job titles, it is reasonable to 
expect that both the office manager and the president would need to devote a substantial amount of time to 
non-qualifying operational and administrative tasks necessary to operate the business. As stated in the statute 
the beneficiary must be primarily performing duties that are managerial or executive. See sections 
EAC 03 066 53542 
Page 7 
101(a)(44)(A) and (B) of the Act. Furthermore, the petitioner bears the burden of documenting what portion 
of the beneficiary's duties will be managerial or executive and what proportion will be non-managerial and 
non-executive. Id. Given the lack of these percentages, the record does not demonstrate that the beneficiary 
will function primarily as a manager or executive. 
The petitioner makes inconsistent statements regarding the purpose and nature of the beneficiary's 
employment that further cloud the beneficiary's role with the company. In the initial petition, the petitioner 
clearly indicated that the beneficiary would be employed in the U.S. on a full-time basis, but that he will 
return to the parent company at "various times during the year" to oversee operations there. In the letter 
submitted with the petition, the petitioner noted that the beneficiary's spouse, a major shareholdler of the 
foreign company, would remain in Portugal, presumably to contribute to the management of the company in 
the beneficiary's absence. However, in response to the director's request for evidence, and also on appeal, 
counsel and the petitioner both assert that the beneficiary intends to enter the United States in L-1A status for 
only two to three months, that he has been overseeing the U.S. operation by entering as a business visitor, and 
that his primary purpose for coming to the United States will be to view potential properties for the 
company's planned expansion and to secure loans to purchase property, if necessary. The beneficiary states 
that he requires the L-1A visa in order to enable him to obtain a U.S. social security number, and notes that he 
would like to have a New Jersey driver's license so that he may drive the company vehicle during his visits to 
the U.S. The petitioner has not explained why it initially stated that the beneficiary will be employed in a full- 
time capacity in the U.S. and subsequently stated that his employment would be intermittent. 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 1938). 
Counsel correctly asserts that the beneficiary is not required to be employed in the United States on a full- 
time basis. The statute does not require the beneficiary to perform full-time services within the United States. 
It must be established, however, that a significant portion of the beneficiary's time, on a regular or systematic 
basis, is spent performing managerial, executive, or specialized knowledge activities which are a part of or 
directly affect the day-to-day operations of the United States entity. INS 01 214.2(1)(5)(ii)(B). There must be 
evidence of productive employment in the United States. Generally, activities alone, such as conferring with 
officials, attending meetings and conferences, and participating in training are not considered piroductive 
employment and are appropriate for B-1 classification. Id. As discussed above, the petitioner has provided 
insufficient evidence regarding the beneficiary's duties to establish that his time spent in the Unitlzd States 
would be spent performing managerial or executive duties. Moreover, the beneficiary has stated that he has 
been fulfilling his duties as President of the U.S. entity in B-2 status, and suggests that he is only applying for 
the L-1A classification in order to facilitate obtaining a U.S. Social Security Number and driver's 1ict:nse. CIS 
cannot excuse the petitioner from meeting the statutory requirements of the classification sought simply for 
the beneficiary's convenience. Furthermore, some of the beneficiary's proposed activities, such as viewing 
properties and signing a loan, do not clearly establish that the beneficiary duties would amount to productive 
employment. 
The fact that an individual manages a small business and has an executive job title does not necessarily 
establish eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section lOl(a)(44) of the Act. The record does not establish that a majority of the 
EAC 03 066 53542 
Page 8 
beneficiary's duties in the United States. will be primarily directing the management of the organization. 
Regardless of whether the beneficiary would be in the United States on a full-time or part-time basis, the 
record contains insufficient evidence to demonstrate that the beneficiary has been or will be employed in a 
managerial or executive capacity. The petitioner has provided no comprehensive descripticln of the 
beneficiary's duties that would demonstrate that the beneficiary will be managing the organization, or 
managing a department, subdivision, function, or component of the company. The petitioner has not shown 
that the beneficiary will be functioning at a senior level within an organizational hierarchy. Further, the 
petitioner's evidence is not persuasive in establishing that the beneficiary will be managing a subordinate staff 
of professional, managerial, or supervisory personnel who relieve him from performing non-qualifying duties. 
Based on the evidence submitted, it cannot be found that the beneficiary will be employed in a primarily 
executive or managerial capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying relationship with 
the foreign entity as required by 8 C.F.R. 5 214.2(1)(l)(ii)(G). On the L Supplement to Form 1-129, the 
petitioner indicated that it is an "affiliate" of the foreign entity but stated "the overseas entity owns 100% of 
the company." In the supporting letter submitted with the petition, the petitioner indicated that the beneficiary 
owns 100% of the U.S. company and owns 40% of the foreign company, with "full decision-making authority 
in the overseas company." The petitioner has provided no documentary evidence to establish its clwnership 
and the AAO cannot determine whether the beneficiary or the foreign entity owns it. With respect to the 
ownership of the foreign company, the record contains a "declaration" dated January 2, 2002, which indicates 
that the beneficiary and his spouse each own 940,000 shares (47%), with three additional shareholders 
holding 40,000 shares (2%) each. However, many of the documents submitted regarding the foreign entity are 
in Portuguese and have not been translated, and some appear to reference a different company, "Vitclr Manuel 
Martins Nogueira Ltda." Finally, the petitioner submitted a statement from the beneficiary's spouse which 
states that the beneficiary "has the complete and full autonomy to make decisions and implement them as it 
relates to managing the company," referring to the foreign entity. Based on the inconsistent statements and 
lack of documentary evidence demonstrating the actual ownership and control of both companies, the record 
is not persuasive in establishing a qualifying relationship. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). For this additional reason, the 
petition will 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), afd. 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 AACl 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. 5 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.