dismissed L-1A Case: Liquor Distribution

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U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rrn. A3042, 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
i'" 
\,) 81 
File: WAC 04 090 50493 Office: CALIFORNIA SERVICE CENTER Date: APR 0 3 20@ 
and Nationality Act, 8 U.S.C. 9 1 10 1 (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. 
'3 - 
-7 
-- -~~ 
.. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 090 50493 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as its sales and marketing 
manager. Accordingly, the petitioner endeavors to classify 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. tj 1101(a)(15)(L). The petitioner claims that it is a corporation organized in the State of California that 
is engaging in the w 
 ibution of liquor. The petitioner claims that it is the wholly- 
owned subsidiary of 
 located in Delhi, India. 
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 a Form I-290B, Notice of Appeal to the AAO, and a brief entitled "Motion 
to Reopen and Reconsider." 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's decision is in error in law 
and in fact. Counsel submits additional evidence in support of his assertions. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(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. 9 214.2(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. 
' The AAO notes that although the director states in several places in the decision that the record does not 
establish that the beneficiary "has been or will be employed in a primarily managerial or executive capacity," 
his analysis and final conclusion indicate that the denial is based on the finding that the petitioner has not 
shown that the beneficiary will be employed in a primarily managerial or executive capacity with the U.S. 
entity. 
WAC 04 090 50493 
Page 3 
(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 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. 
At issue in the present matter is whether the beneficiary would be employed in the United States in a 
primarily 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, 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 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 
WAC 04 090 50493 
Page 4 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter dated February 9, 2004 accompanying the Form 1-129, Petition for a Nonimmigrant Worker, 
counsel described the beneficiary's intended duties in the United States as follows: 
It is clear that the beneficiary will be performing executive functions. [The beneficiary's] 
major duties are outlined as follows: 
a. 
 Reflect and interchanges [sic] ideas to the Chief Executive Officer, Directors and 
Stockholder regarding business expansion; 
b. Assist in the preparation of the business planning for the company, as well as establishing 
goals by: setting goals for new business, market and product development, analyze 
product and market feature, reinforce and expand business connections; 
c. Take [plriority to create more sales, profits, etc. 
The beneficiary . . . will exercise wide latitude and receive only general input and supervision 
from the CEO and other high company executives. Thus, based upon the definition of 
executive capacity, [the beneficiary] will serve as Sales and Marketing Manager overseeing 
the west coast operations and expansion, a major component of the organization. 
Counsel indicated in the same letter that the staff of the U.S. entity at that time consisted of the president and 
a manager. 
 Counsel also submitted an organizational chart for the U.S. entity. 
 The chart shows the 
company's CEO and president at the top; directly below him are the secretary/CFO, a sales and marketing 
manager for the East Coast, and the beneficiary as sales and marketing manager for the West Coast. Each 
sales and marketing manager is shown as supervising seven or eight regional sales managers and a customer 
support center.' The chart does not list any names of individuals holding these positions, and there is no other 
indication that these subordinate positions were filled at the time the petition was filed. 
On March 3 1, 2004, the director requested additional evidence. In connection with the beneficiary's position 
in the U.S. entity, the director requested a copy of the U.S. entity's organizational chart, which should include 
the current names of all executives, managers, supervisors, and the number of employees within each 
department; identify clearly the beneficiary's position; list the names, job titles, descriptions of job duties, 
educational levels, annual salaries, and immigration status for all employees under the beneficiary's 
supervision; and explain the source of remuneration of all employees and state whether the employees are on 
salary, wage, or paid by commission. The director also requested a more detailed description of the 
beneficiary's duties in the U.S., indicating the percentage of time spent on each duty, and listing all employees 
2 
. 
 The AAO notes that the chart appears to show the West Coast and East Coast positions in reverse. 
Although the beneficiary is listed as the West Coast manager, the states listed under him are East Coast states, 
and the East Coast manager has West Coast states listed under him. The petitioner has not addressed this 
discrepancy anywhere in the record. 
WAC 04 090 50493 
Page 5 
under the beneficiary's direction with their job titles and job description. The director also requested copies of 
the U.S. entity's California Quarterly Wages Reports for all employees for the preceding four quarters. 
In response, counsel for the petitioner submitted the following statement from the petitioner regarding the 
beneficiary's job duties in the U.S. entity: 
[The beneficiary] will be [i]n [clharge of Distribution & Marketing. The company's new 
warehouse [llocation in the City of Anaheim in Southern California shall be under his direct 
charge, which will cater to the customers in 5 counties falling within the coverage [sic], 
initially. The sales persons and other team involved including the distributor of [the] 
Anaheim warehouse location shall work in coordination with him. He will also set up new 
distribution channels in the Midwest. His duties also include to add [sic] new accounts 
including retail customers as well as wholesale accounts and implementation of company's 
policies and plans to promote the brandslproducts in the territory that would be under his 
coverage. 
He shall directly take instructions from the CEO and report directly to him. 
Since the company is adding a few more brands of distilled spirits including 4-5 brands of 
whisky in the portfolio, he will coordinate with the manufacturers in India to ensure timely 
imports, adequate publicity support and ensure wider distribution to maximize sales in the 
territory under his charge. 
In a letter dated June 22, 2004, counsel stated, "each of [the] territories [that will be overseen by the 
beneficiary] will have a regional marketing staff which will be supervised by the beneficiary upon completion 
of the expansion. Expansion [i]s currently underway with the opening (yet to be staffed) [in Houston, Texas. 
The beneficiary] will be supervising the staff at this facility, as well as other future facilities." Although 
counsel indicated that a new organizational chart was submitted per the director's request, there is no such 
document on the record. The petitioner submitted none of the requested information relating to the 
beneficiary's subordinate staff. 
In denying the petition, the director concluded that the evidence provided is insufficient to establish that the 
beneficiary will be employed in the United States in an executive or managerial capacity. Specifically, the 
director observed that the beneficiary's proposed duties primarily comprised marketing tasks, which are tasks 
necessary to produce a product or provide a service. As such, the director found, the beneficiary cannot be 
considered to be performing primarily executive or managerial duties. The director also noted that even 
though the petitioner claimed that it planned to hire additional employees, at the time the petition was filed, 
the beneficiary was not supervising any employees and had no staff to relieve him of non-qualifying duties. 
The director further noted that although the beneficiary was employed at the U.S. entity since 2001, the record 
does not show that the company paid any salaries or wages for that year. The director found this to be an 
unresolved inconsistency that precludes a grant of the petition. 
On appeal, counsel for the petitioner asserts that the director's decision is in error. Counsel contends that the 
number of employees on the staff of the petitioner should not be a determining factor in assessing whether the 
beneficiary is acting in a managerial or executive capacity. Counsel further asserts that that the beneficiary's 
WAC 04 090 50493 
Page 6 
job is not "primarily of a marketing nature," as the director observed. Counsel claims the beneficiary would 
be functioning in a primarily managerial capacity in that he will be overseeing the entire East Coast operation 
of the U.S. entity with a wide range of duties and responsibilities. Counsel also contends that the director's 
statement that there are inconsistencies regarding the beneficiary's employment in 2001 is based on a 
misreading of the record. Counsel submits additional evidence, including revised organizational charts and 
new licenses and permits for the U.S. entity, as well as another copy of the receipts for payment of the 
beneficiary's salary in 2003 and 2004 by the foreign entity. 
At the outset, the AAO acknowledges that counsel's assertions on appeal regarding the beneficiary's 
employment by the foreign entity in 2001 appear to be supported by the record. The petitioner stated on the L 
Supplement to Form 1-129 that the beneficiary has been employed by the foreign entity since January 1,2001 
without interruption. The petitioner also submitted a number of receipts dating fiom March 2001 through 
April 2004 for payment of the beneficiary's salary by the foreign entity. The petitioner did not claim 
anywhere in the record that the beneficiary was employed by the U.S. entity in 2001. Therefore, the director's 
finding that the claim that the beneficiary was employed by the U.S. entity in 2001 is inconsistent with 
evidence in the record showing that the U.S. entity did not pay any salaries or wages during that year is in 
error and will be withdrawn. 
Notwithstanding the foregoing, the AAO finds that the record is insufficient to establish that the beneficiary 
would be employed by the U.S. entity in a primarily 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 8 C.F.R. 4 214.2(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. The petitioner must specifically state whether the beneficiary is 
primarily employed in a managerial or executive capacity. A petitioner cannot claim that some of the duties 
of the position entail executive responsibilities, while other duties are managerial. A beneficiary may not 
claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory 
definitions. 
In this instance, it is unclear whether the petitioner is claiming that the beneficiary is primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily engaged in executive duties under 
section 101(a)(44)(B) of the Act. In the February 9, 2004 letter accompanying the initial petition, counsel 
stated that "[ilt is clear that the beneficiary will be performing executive functions," and counsel provided a 
brief description of the beneficiary's job duties that generally paraphrased the statutory definition of executive 
capacity. However, on appeal, counsel asserted that the beneficiary would be "functioning in a primarily 
managerial capacity" and refers to the job description provided in response to the director's request for further 
evidence in support of that assertion. The petitioner must demonstrate that the beneficiary's responsibilities 
will meet the requirements of one or the other capacity. Here, neither of the job descriptions provided is 
sufficient to make that showing, as will be discussed further below. 
As previously noted, the beneficiary's job description in counsel's February 9, 2004 letter generally 
paraphrased the statutory definition of executive capacity rather than providing a specific description of the 
beneficiary's duties. See section 101(a)(44)(A) of the Act, 8 U.S.C. 4 1101(a)(44)(A). For instance, the 
WAC 04 090 50493 
Page 7 
petitioner depicted the beneficiary as "establishing goals" for the company and "exercis[ing] wide latitude and 
receiving only general input and supervision from the CEO and other high company executives." However, 
conclusory assertions regarding the beneficiary's employment capacity are not sufficient to meet the 
petitioner's burden of proof. 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. 1 103, 1 108 (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 job description provided in response to the director's request for further evidence is also vague and 
nonspecific and fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the 
petitioner states that the beneficiary will "be in charge of distribution & marketing," "work in coordination 
with" other sales persons and distributors, "set up new distribution channels," "[implement] . . . company's 
policies and plans to promote the brandslproducts in the territory that would be under his coverage," and 
"coordinate with the manufacturers in India." Reciting the beneficiary's vague job responsibilities or broadly 
cast business objectives as the petitioner did here is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. Without further details as to what the beneficiary's tasks 
actually entail, the petitioner has failed to address the critical issue of what the beneficiary would be doing on 
a daily basis in his position with the U.S. entity. The actual duties themselves will reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
In addition, the petitioner describes the beneficiary as performing sales and distribution tasks such as 
"add[ing] new accounts including retail customers as well as wholesale accounts;" in other words, tasks that 
are necessary to provide a service or product that would 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). Furthermore, it is noted that in addition to failing to provide a more 
detailed description of the beneficiary's anticipated duties in the U.S. entity, the petitioner also failed to 
provide a breakdown by percentage of time to be spent on each duty, as the director specifically requested. 
Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. $ 103.2(b)(14). Moreover, this failure of documentation is also significant 
because, as previously noted, a number of the beneficiary's daily tasks relate to the sale and distribution of the 
petitioner's product, and as such, do not fall directly under traditional managerial duties as defined in the 
statute. Absent further detail as requested by the director, the AAO cannot determine whether the beneficiary 
is primarily performing the duties of a manager, as counsel claims. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
The AAO also notes that it is unclear from the record whether the beneficiary is the sale and marketing 
manager for the West Coast or the East Coast. While the Form 1-129, counsel's February 9, 2004 letter and 
counsel's brief all indicate that the beneficiary would be the manager for the West Coast, the organizational 
chart on record shows him supervising East Coast personnel and/or facilities. The petitioner has offered no 
explanation or clarification for these inconsistencies. 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 1988). 
 Doubt cast on any aspect of the 
WAC 04 090 50493 
Page 8 
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. Id. 
The record also shows that although the organizational chart submitted with the initial petition shows the 
beneficiary supervising seven or eight regional managers, at the time the petition was filed, there is no such 
staff in place, and the U.S. entity's personnel consists only of two persons. Thus, even though the petitioner 
claims that the beneficiary would be "in charge of distribution & marketing," it does not appear to have 
anyone on its staff to actually perform the distribution and marketing function at the time of filing. Thus, 
either the beneficiary himself is performing these functions or he does not actually manage these functions as 
the petitioner claimed. 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. Again, 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. at 591. As previously noted, if the beneficiary is performing 
the sales and marketing functions directly, 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 of Scientology International, 19 I&N Dec. at 604. 
It is noted that the petitioner had indicated that it plans to hire additional staff in the future; however, the 
petitioner must establish eligibility at the time of filing the nonirnmigrant 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 (Reg. Comm. 1978). 
Finally, 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 $ 101(a)(44)(C) of the Act, 8 U.S.C. 9 1101(a)(44)(C). However, it is appropriate for the 
Citizenship and Immigration Service (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. 2d 7, 15 
(D.D.C. 2001). The size of a company may be especially relevant when CIS notes discrepancies in the 
record and fails to believe that the facts asserted are true. Id. 
 Moreover, the petitioner must still establish 
that the beneficiary is to be employed in the United States in a primarily managerial or executive capacity, 
pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not shown that 
there are employees who would relieve the beneficiary from primarily performing non-managerial tasks, and 
therefore the petitioner has failed to established this essential element of eligibility. 
Based on the foregoing, the record does not support the conclusion that the beneficiary would be employed in 
the United States in a primarily executive or managerial capacity, as required by 8 C.F.R. 3 214.2(1)(3). 
Beyond the director's decision, the petitioner has not provided sufficient evidence to establish that there is a 
qualifying relationship between the U.S. and foreign entities. The regulations and case law confirm that 
ownership and control are the factors that must be examined in determining whether a qualifying relationship 
exists between the United States and foreign entities for purposes of this visa classification. Matter of Church 
WAC 04 090 50493 
Page 9 
Scientology International, 19 I&N Dec. at 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N 
Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
On the Form 1-129, the petitioner indicated that the U.S. entity is a wholly-owned subsidiary of the foreign 
entity. In counsel's February 9, 2004 letter, counsel stated that the following documentation was submitting 
along with the petition: (1) the U.S. entity's articles of incorporation, minutes, by-laws, share certificates 
showing 100% ownership by the foreign entity, wire transfers evidencing the foreign entity's payment for the 
shares; and (2) the articles and certificate of incorporation for the foreign entity. However, the AAO's review 
of the record reveals that none of these documents were submitted. In considering a petitioner's claimed 
qualifying relationship, CIS must be able to examine evidence such as the stock certificates, stock ledger, 
stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings to 
determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must disclose 
all agreements relating to the voting of shares, the distribution of profit, the management and direction of the 
subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, 
Inc., 19 I&N Dec. 362. Contrary to counsel's claim, the petitioner has failed to provide any of the stated 
documentation regarding the ownership and control of the U.S. entity. Without full disclosure of all relevant 
documents, the elements of ownership and control, and consequently the qualifying relationship between the 
U.S. entity and its foreign parent, simply cannot be determined. For this additional reason, the petition will 
be denied. 
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), affd. 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 AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if she shows that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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. 3 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.