dismissed L-1A Case: Laundry Services

U.S. Department uf Iiomeland Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 03 060 50273 Office: TEXAS SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(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. 
bobert P. Wiemann, Director 
! Administrative Appeals Office 
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DISCUSSION: The nonimmigrant 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 established December 3, 
2001, and claims to be a "washeteria" business in the hospitality and service industry. The petitioner claims 
to be a subsidiary of Apsara Limited, located in Palustan. The petitioner seeks to extend its authorization to 
employ the beneficiary temporarily in the United States as its general manager for a period of three years, at 
an annual salary of $48,000.00. The beneficiary was initially granted a one-year period of stay to open a new 
office in the United States. 
The director determined that the petitioner had failed to establish that: (1) the petitioning entity has been 
doing business; or that (2) the beneficiary had been or would be employed in a primarily managerial or 
executive capacity. 
On appeal, counsel disagrees with the director's decision and asserts that the petitioner has submitted 
sufficient evidence to demonstrate that the organization has been doing business and that the beneficiary has 
been and will be employed in a primarily managerial or executive capacity. 
To establish L-1 eligibility under section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U. S.C. 3 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. 3 214.2(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 fm 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. 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. 
SRC 03 060 50273 
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(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 himher 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. 3 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) of the Act 
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 first issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that 
the U.S. entity has been doing business. 
The regulations at 8 C.F.R. 5 214.2(1)(l)(ii)(G) state: 
Qualzfiing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a 
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United 
States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
The regulations at 8 C.F.R. tj 214.2(1)(l)(ii)(H) state: 
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Doing business means the regular, systematic, and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent or 
office of the qualifying organization in the United States and abroad. 
In a letter dated November 27, 2002, the petitioner stated in part: 
The U.S. subsidiary is currently actively in negotiations for the purchase of additional 
business outlets, which purchase will be completed by December 31, 2002. With the 
purchase of these additional business outlets in the United States, the subsidiary will have in 
excess of ten employees, in the United States. 
The petitioner initially submitted copies of the U.S. entity's Articles of Incorporation, lease agreement, and a 
Bill of Sale, dated December 3, 2001. 
The director requested that the petitioner: "Submit evidence of the business conducted by the petitioner during 
the past year, such as sales contracts, invoices, bills of lading, shipping receipts, orders, US Customs Fonns 
301, 7501, 7525-V, etc." 
In response to the director's request for evidence, the petitioner submitted copies of the entity's Texas Sales 
and Use Tax Returns for 2003, a Texas Corporation Franchise Tax Report for the accounting period ending 
December 31, 2002, bank account statements dated from February 2003 through April of 2003, canceled 
checks, and copies of utility bills for 2002 and 2003. 
The director determined that insufficient evidence had been submitted to establish that the U.S. entity had 
been doing business for the year prior to the filing of the instant petition. 
On appeal, counsel argues that the company's letter, Bill of Sale, and tax returns demonstrate that the U.S. 
entity has been doing business during 2002. 
Based upon information contained in the lease agreement and Bill of Sale submitted by the petitioner, it 
appears that the petitioner purchased and is operating a washer and dry cleaning establishment. The Bill of 
Sale indicates that the establishment was purchased December 3, 2001, and the Franchise Tax Return 
demonstrates that the entity realized gross receipts in the amount of $106,224.00 in 2002. Therefore, the 
director's decision with respect to the U.S. entity doing business will be withdrawn. 
The second issue in this proceeding is whether the petitioner has established that the beneficiary has been or 
will be employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 110l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(i) Manages the organization, or a department, subdivision, 
function, or component of the organization; 
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(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 funct~on for which the*ernployee 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. 9 1101(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-malung; and 
(iv) Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the 
organization. 
Section 101(a)(44)(C) of the Act, 8 U.S.C. 1 101 (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. 
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The petitioner initially described the beneficiary's duties in the petition as: "The alien will manage and direct 
the U.S. branch's business activities, including supervising the staff, hiring and training, and directing the 
marketing efforts for the company." 
In the letter dated November 27,2002, the petitioner described the beneficiary's duties as: 
[The beneficiary] is the General Manager of the U.S. Corporation. He has a proven track 
record with the parent company. He was in charge of the parent company's growth and 
management, as well as all marketing efforts. The skills required in expanding the business 
and nurturing its growth is essential and is possessed by [the beneficiary]. 
The director requested that the petitioner submit: "Evidence of the current staffing level in the United States 
and abroad. Give position titles and duties of all employees. Give the educational background of the 
professionals that are employed." The director also stated in the request for evidence: 
Please provide a definitive statement describing the foreign and U.S. employment of the 
beneficiary, including: 
Number of employees who report directly to the beneficiary; 
A brief description of their job titles and duties; give their educational background; if the 
beneficiary does not supervise other employees, specify what essential function within 
the organization he manages; 
Submit copies of the State Employer's Quarterly Tax Returns for the year 2002 for Apsara 
Enterprises of Texas, hc. 
Submit copies of Quarterly Wage Reports for all employees from 2002 to the present. 
In response to the director's request for evidence, the petitioner submitted a listing entitled "Current Staffing 
Levels, Apsara Enterprises of Texas, Inc." The list included the following names and job titles for the U.S. 
entity: 
.ger 
chnician 
The petitioner described the U.S. entity's chain of command as: 
The clerical and accounts staff report directly to the Assistant Manager, who in turn reports to 
Manager. The Assistant Manager holds a diploma in commerce and has many years of 
management experience. 
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The Manager and the Supervising Manager report to the beneficiary .. . [the beneficiary] 
report to the parent company, Managing Director. The supervising manager position is a 
senior level position. 
As part of his job duties, [the beneficiary] is engaged in planning the company's continued 
growth in the USA including analyzing additional locations for expansion of the company's 
business and identifying potential business opportunities and also exploring financial matters. 
Under [the beneficiary] the company has seen continuous growth, and expects to have sales 
in the USA in excess of $2,300,000.00. 
The day to day [sic] operations of the business are primarily looked after by the Assistant 
Manager. 
The petitioner submitted as evidence copies of the U.S. entity's Form 941, Employer's Quarterly Federal Tax 
Return for the quarters ending December 3 1,2002, and March 3 1,2003. 
The director determined that the petitioner had failed to present evidence demonstrating the U.S. entity's 
employees' duties and responsibilities as specifically requested. The director stated that the petitioner had 
failed to provide an explanation for the inconsistencies that existed in the number of employees employed by 
the U.S. organization. The director also stated that the evidence submitted fails to demonstrate that the 
beneficiary was performing in a managerial capacity at the time the petition was filed or would be performing 
in a managerial or executive capacity. 
On appeal, counsel argues that the director misinterpreted the company tax records demonstrating the number 
of employees employed by the petitioner. Counsel also argues that the director admitted that the beneficiary 
is now functioning in a managerial capacity and that where a new business is being established, the manager 
may be engaged in a variety of responsibilities. Counsel further argues that the evidence submitted is 
sufficient to establish that the beneficiary has been and will be performing in a primarily managerial or 
executive capacity. The petitioner resubmits as evidence on appeal, a copy of the employee list, explanation 
of chain of command, and Quarterly Wage Reports for the quarters ending December 3 1, 2002, and March 
3 1, 2003. The petitioner also submitted a copy of the company's IRS Form 1120, U.S. Corporation Income 
Tax Return for 2002 and attachments. 
Counsel's assertions are not persuasive. In evaluating whether the beneficiary has been or will be employed 
in a primarily managerial or executive capacity, the AAO will look first to the petitioner's description of the 
beneficiary's job duties. See 8 C.F.R. 3 214.2(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. In this matter, the record demonstrates that the beneficiary has and will 
continue to perform various non-qualifying job duties for the U.S. entity. 
The petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the 
beneficiary is responsible for managing and directing the U.S. entity's business activities, supervising 
subordinate staff, and directing the marketing efforts of the organization. The petitioner did not, however, 
detail the organization's business activities, nor clarify the beneficiary's duties in marketing the petitioner's 
products or in supervising subordinate staff. Going on record without supporting documentary evidence is 
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not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Crajl of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). 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. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner fails to document what proportion of the beneficiary's duties will be managerial functions and 
what proportion will be non-managerial. The petitioner lists the beneficiary's duties as managerial, but it fails 
to quantify the time the beneficiary spends on them. This failure of documentation is important because 
several of the beneficiary's daily tasks, such as marketing the petitioner's product, are not managerial duties as 
defined in the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily 
performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). 
Although the petitioner asserts that the beneficiary will be managing the company manager and supervising 
manager, 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. 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. In addition, there has been no 
evidence submitted to establish the titles and job descriptions of the employees employed by the U.S. entity at 
the time the petition was filed. The AAO notes that the organization's quarterly wage report for the fourth 
quarter of 2002 and the first month of the first quarter ending March 2003 shows only three employees 
employed by the company at the time the petition was filed. To the contrary, the petitioner provided a list of 
ten U.S. entity employee names and titles. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Based upon the evidence presented, it appears that two 
out of the three employees were employed only on a part-time basis. It appears that the beneficiary has been 
and will be primarily performing the day-to-day activities of the organization rather than performing in a 
primarily managerial or executive capacity. It also appears from the record that the U.S. entity has not yet 
reached a level of complexity sufficient to support a managerial or executive position. 
The petitioner claims that the beneficiary directs and manages the petitioner's marketing activities, however, it 
does not claim to have anyone on its staff to actually perform the marketing function. Thus, either the 
beneficiary himself is performing the marketing function or he does not actually manage the marketing 
function 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 marketing function, 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, 19 I&N Dec. 593, 604 (Comrn. 1988). 
The petitioner infers throughout the record that the U.S. entity is still in its developmental stages. However, 
the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition 
may not be approved at a hture date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornm. 1978). Furthermore, 
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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 Citizenship and 
Immigration Services (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 this 
matter, the petitioner has not reached the point that it can employ the beneficiary in a primarily managerial or 
executive position. For this reason, the petition may not be approved. 
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. $ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.