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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: EAC 04 151 52333 Office: VERMONT SERVICE CENTER Date: FEB 0 1Z007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 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.
~-;:..:::=::~:~'~=""~."::- _.
RobertP. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 04 151 52333
Page 2
DISCUSSION: The Director, Vermont 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 in the position of general
manager to be employed at its new office in the United States as an L-1A nonimmigrant intracompany
transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(l5)(L). The petitioner, a corporation organized under the laws of the State of New Jersey, claims to
be a liquor retailer and wholesaler, and alleges that it is the affiliate of the Trade House of Kalmykia, a
Russian limited liability company.
The director denied the petition concluding that the petitioner failed to establish that (1) the beneficiary has
been employed for one continuous year in the three-year period preceding the filing of the petition in an
executive or managerial capacity; or (2) the beneficiary will be employed in the United States in an executive
or managerial position.
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 to the petitioner asserts that the record
establishes that the beneficiary will be employed in an executive or managerial capacity and that the
petitioner's failure to provide copies of its 2004 tax returns was excusable as a new business.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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. § 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 (1)(1)(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 04 151 52333
Page 3
education, training, and employment qualifies himlher 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.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval
of the petition, will support an executive or managerial position as
defined in paragraphs (l)(1)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
The first issue in this proceeding is whether the beneficiary had been employed in a primarily managerial or
executive capacity with the foreign entity for one year within the preceding three years.
Title 8 C.F.R. § 2l4.2(l)(3)(v)(B) requires that the petitioner prove that the "beneficiary has been employed
for one continuous year in the three year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved executive or managerial authority over the
new operation."
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;
EAC 04 151 52333
Page 4
(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 10l(a)(44)(B) of the Act, 8 U.S.C. § 11 o1(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.
The petitioner does not clarify whether the beneficiary is claiming to have been primarily engaged in
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section
101(a)(44)(B) of the Act. A beneficiary may not claim to have been employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets
each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
In a letter dated April 19, 2004 appended to the initial I-129 petition, the petitioner describes the beneficiary's
duties with the foreign employer. The petitioner asserts that the beneficiary managed ten employees,
including two subordinate supervisors, as the chief of the commercial contracting department. The petitioner
further described the beneficiary's duties as follows:
EAC 04 151 52333
Page 5
• Overseeing the activities and functioning of the company in the areas of operating,
planning, sales, research and development to effect operational efficiency and
economy;
• Coordinating and directing quality control to ensure continuous sales of product
consistent with the established industry standards; determining tendencies of the
manufacturing and marketing; hiring and training of new personnel;
• Negotiating contracts and directing expansion of operations having total discretion
over expansion sites and the projected rate of expansion [citation omitted].
The petitioner did not provide any information regarding the duties or educational levels of the alleged
subordinate employees.
On June 22, 2004, the director requested additional evidence. Specifically, the director requested evidence
that the beneficiary was employed in a managerial or executive capacity abroad.
In response, the petitioner provided a letter (with translation dated September 15, 2004) from the foreign
entity confirming that the beneficiary has been employed since December 17, 1997 as the manager of the
commercial contracting department. The letter further described the beneficiary's duties abroad as follows:
1. Carry out the management of financial and economical activities of the company;
2. Prepare prospective and current plans of product distribution;
3. Ensure quality, organization and distribution of products;
4. Take the necessary actions to enter into financial agreements with suppliers and
distributors in a timely manner;
5. Expand the direct and indirect contracts with distributors;
6. Ensure the fulfillment of obligations prescribed in a contract, such as:
quantity;
nomenclature;
variety;
quality;
time frames.
7. Participate on behalf of the company in trading, expositions, markets, advertising and
selling the product;
8. Organize the timely preparation of financial and other documents and calculations;
9. Study the market conjecture;
10. Represent the interests of the company on the issues pertaining to production
activities of the company.
Again, the petitioner did not provide any further details regarding the beneficiary's subordinate employees and
did not provide an organizational chart for the foreign entity.
EAC 04 151 52333
Page 6
On October 15, 2004, the director denied the petition concluding that the record did not establish that the
beneficiary has been employed in a primarily managerial or executive capacity with the foreign entity for one
year within the preceding three years.
On appeal, the petitioner does not specifically address this determination, although counsel to the petitioner
does state in the Form I-290B that the petitioner has provided a full explanation of the beneficiary's duties
thus establishing employment in a managerial or executive capacity.
Upon review, petitioner's assertions are not persuasive.
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. § 214.2(1)(3). The petitioner's description of the job
duties must clearly describe the duties performed by the beneficiary and indicate whether such duties were
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the
beneficiary has been primarily employed in a managerial or executive capacity. As explained above, a
petitioner cannot claim that some of the duties of the position entailed executive responsibilities, while other
duties were managerial. A beneficiary may not claim to have been employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets
each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
The petitioner has failed to prove that the beneficiary has been acting in a "managerial" capacity. In support of
its application, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that
fails to demonstrate what the beneficiary has been doing on a day-to-day basis. For example, the petitioner
states that the beneficiary's duties include planning product distribution, overseeing the management of
certain aspects of the business, and coordinating and directing quality control; however, the petitioner did not
explain how, or by whom, any of these duties were carried out. 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). 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. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
The petitioner also failed to prove that the beneficiary supervised and controlled the work of other
supervisory, professional, or managerial employees, or managed an essential function within the organization.
As explained above, the petitioner failed to provide any information regarding the beneficiary's alleged ten
subordinates, including the two subordinate supervisors. The petitioner also failed to provide an
organizational chart for the foreign entity. Absent supporting evidence on the foreign entity's staff, it is
impossible for Citizenship and Immigration Services (CIS) to determine whether the beneficiary had been
supervising other supervisory, professional, or managerial employees. Given the information provided by the
petitioner, the beneficiary would appear to be a first-line supervisor, the provider of actual services, or a
combination of both. An employee who "primarily" performs the tasks necessary to produce a product or to
EAC 04 151 52333
Page 7
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm.
1988). A managerial or executive employee must have authority over day-to-day operations beyond the level
normally vested in a first-line supervisor, unless the supervised employees are professionals.
101(a)(44)(A)(iv) of the Act; see also Matter ofChurch Scientology International, 19 I&N Dec. at 604. Since
record fails to reveal the educational or skill level of the subordinate employees, it cannot be determined if
they rise to the level of a professional employees.' Therefore, the record does not prove that the beneficiary
has acted in a managerial capacity?
Similarly, the petitioner has failed to prove that the beneficiary had been acting in an "executive" capacity.
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a
complex organizational hierarchy, including major components or functions of the organization, and that
person's authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a
lIn evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 10l(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
2While the petitioner has not specifically argued that the beneficiary managed an essential function of the
organization, the record nevertheless would not support this position even if taken. The term "function
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff
but instead is primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would have been managerial
functions and what proportion would have been non-managerial. Absent a clear and credible breakdown of
the time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his
duties would have been managerial, nor can it deduce whether the beneficiary had been primarily performing
the duties of a function manager. See IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C.
1999).
EAC 04 151 52333
Page 8
beneficiary must have the ability to "direct the management" and "establish the goals and policies" of that
organization. Inherent to the definition, the organization must have a subordinate level of employees for the
beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the
organization rather than the day-to-day operations of the enterprise. An individual will not be deemed an
executive under the statute simply because they have an executive title or because they" direct" the enterprise
as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in discretionary
decision making" and receive only "general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization." Id. As indicated above, the petitioner has failed to establish
that the beneficiary, who was allegedly managing employees who were apparently engaged in providing
services to customers, has been acting primarily in an executive capacity.
Accordingly, the petitioner did not establish that the beneficiary has been employed for one continuous year
in the three year period preceding the filing of the petition in an executive or managerial capacity as required
by 8 C.F.R. § 214.2(l)(3)(v)(B), and for this reason the petition may not be approved.
The second issue in this matter is whether the petitioner has established that the intended United States
operation, within one year of the approval of the petition, will support an executive or managerial position.
As explained above, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the
beneficiary is coming to the United States as a manager or executive to open or to be employed in a new
office, the petitioner shall submit evidence that:
(C) The intended United States operation, within one year of the approval
of the petition, will support an executive or managerial position as
defined in paragraphs (l)(l)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
In the letter dated April 19, 2004 appended to the initial petition, the petitioner states that it will be engaged in
the wholesale, retail, import, and export of liquor and soft drinks, and describes the beneficiary as its
prospective general manager. In support of the petition, the petitioner provided copies of its organizational
documents and a "business profile" of the petitioner's business operations.
On June 22, 2004, the director requested additional evidence describing "in detail the type of business that is
to be conducted by the United States entity." The director also requested tax documentation, bank statements,
EAC 04 151 52333
Page 9
information regarding potential customers, and evidence establishing that the beneficiary will be employed in
an executive or managerial capacity in the United States.
In response, the petitioner provided an organizational chart for the petitioner showing the beneficiary
reporting to the two stockholders of the corporation but managing all other employees including sales staff,
clerical employees, and a driver. However, the petitioner did not indicate whether any of these subordinate
positions have been filled or, if not, when the petitioner intends on hiring additional staff. The petitioner also
provided a more detailed description of the beneficiary's proposed duties, information regarding the
acquisition of business assets, a lease assignment, and a variety of business documents, bills, and checks
collectively indicating that the petitioner intends on operating a retail liquor establishment.
On October 15, 2004, the director denied the petition concluding that the beneficiary will not be employed in
the United States in an executive or managerial position.
On appeal, the petitioner asserts in the Form I-290B that the petitioner had provided a full explanation of the
beneficiary's duties thus establishing employment in a managerial or executive capacity. The petitioner also
asserts that its failure to provide tax documentation was fully explained and is excusable as a new business.
Upon review, the petitioner's assertions are not persuasive.
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant classification during
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See 8 C.F.R. § 214.2(l)(3)(v)(C). This
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it
moves away from the developmental stage to full operations, where there would be an actual need for a
manager or executive who will primarily perform qualifying duties.
As contemplated by the regulations, a comprehensive business plan should contain, at a mmimum, a
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec.
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable
business plan:
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures, and a description of the target market/prospective customers of the new
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
EAC 04 151 52333
Page 10
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefor. Most importantly, the business plan must be credible.
Id.
The petitioner has failed to present evidence sufficient to prove that the intended United States operation,
within one year of the approval of the petition, will support an executive or managerial position. First, the
petitioner has not explained the organizational structure of the foreign entity as required by 8 C.F.R. §
214.2(l)(3)(v)(C)(3). Second, the petitioner's vague "business profile" does not describe the petitioner's proposed
business in sufficient detail. While this document describes the petitioner as entering the liquor and soft drink
market, the profile fails to explain anything about the business, i.e., its customers, market, products, or
competitors. While predicting "multifold growth," the profile provides no basis for this prediction other than
"experts and our analysis," which the petitioner fails to reveal. The record is devoid of any evidence establishing
that the enterprise will succeed and rapidly expand as it moves away from the developmental stage to full
operations, where there would be an actual need for a manager or executive who will primarily perform
qualifying duties.
Accordingly, the petitioner has not established that the intended United States operation, within one year of the
approval of the petition, will support an executive or managerial position as required by 8 C.F.R. §
214.2(l)(3)(v)(C), and for this reason the petition may not be approved.'
Beyond the decision of the director, the petitioner did not establish that the petitioner and the organization
which employed the alien overseas are qualifying organizations as required by 8 C.F.R. § 214(l)(3)(i).
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e., one
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section
3It should be noted that the director's decision could be construed to have denied the petition in part on the
basis that the beneficiary will not be employed in an executive or managerial capacity immediately upon
approval of the "new office" petition. As explained above, the petitioner is not obligated to establish that the
beneficiary will be primarily employed in an executive or managerial capacity; rather, the petitioner must
establish that the intended United States operation, within one year of the approval of the petition, will support an
executive or managerial position. 8 C.F.R. § 214.2(l)(3)(v)(C). To the extent the director based her denial on
the petitioner's failure to establish that the beneficiary will be employed primarily in an executive or
managerial capacity immediately upon approval of the "new office" petition, that determination is hereby
withdrawn. However, as explained above, to the extent the director determined that the petitioner failed to
establish that the beneficiary will be employed in an executive or managerial capacity within one year, that
determination was correct and the appeal will be dismissed.
EAC 04 151 52333
Page 11
101(a)(l5)(L) of the Act; 8 C.F.R. § 214.2(1). If one individual owns a majority interest in a petitioner and a
foreign entity, and controls those companies, then the companies will be deemed to be affiliates under the
definition even if there are multiple owners. In the current case, the petitioner alleges that one individual,
owns a majority interest in, and controls, both the foreign employer and the petitioner.
However, because the record reveals that_ does not own a majority of the shares in the foreign
employer, it cannot be concluded that he owns and controls this entity. Therefore, the two entities are not
affiliates.
~din the record, owns 65% of the petitioner and 31.70/0of the foreign entity. While
_ov may, out of the four stockholders, own the largest block of stock in the foreign entity, the
record is devoid of any evidence that this ownership share permits him to control this entity. Likewise, the
record does not establish that the same group of individuals owns both entities. The other stockholder in the
petitioner, , does not own any shares in the foreign entity. Therefore, as the petitioner has not
established that i v owns and controls both entities, the petitioner has not established that the two
entities are qualifying organizations as affiliates. Accordingly, the petitioner may not be approved for this
additional reason.
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 Dar 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 it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.