dismissed L-1A Case: Perfumes And Cosmetics Distribution

imng data deheebecl to 
prevent clearly unwarranted 
in-on nf --'flrllaI ~rivacv 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., R.m. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: SRC 03 010 51654 Office: TEXAS SERVICE CENTER Date: )1o~ 1 5 
rN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 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. 
~obert P. Wiemann, ~u/ector 
dministrative Appeals Office 
SRC 03 010 51654 
Page 2 
DISCUSSION: The nonimrnigrant 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 incorporated in ,2001 and 
claims to be a distributor of perfumes and cosmetics. The petitioner claims that the U.S. entity is an affiliate 
of located in Costa Rica. The petitioner seeks to extend its authorization 
to employ the beneilclary temporarily in the United States as its manager for a period of two years, at a yearly 
salary of $30,000. The director determined that the petitioner had not submitted sufficient evidence to 
demonstrate that the beneficiary had been or would continue to be employed by the U.S. entity in a primarily 
managerial or executive capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties have 
been and will continue to be managerial or executive in nature. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 101 (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. $214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or 
her application for admission into the United States, has been employed abroad continuously 
for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to render his 
or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in 
a capacity that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. $214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior. 
education, training, and employment qualifies himher to perform the intended 
SRC 03 010 51654 
Page 3 
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. 4 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) which involved 
the opening of a new office may be extended by filing a new Form 1-129, accompanied by the following: 
A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (I)(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) of this section for the previous year; 
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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) Manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) Supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) If another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other 
employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) Exercises discretion over the day-to-day operations of the activity 01- 
function for which the employee has authority. A first-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue ol' 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 8 1 101 (a)(44)(B), provides: 
SRC 03 010 51654 
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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; 
(i i) 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 stated in the petition that the beneficiary has been responsible for overseeing customer service, 
reviewing market reports, and requesting merchandise from the factory. The petitioner further stated in the 
petition that the beneficiary would be responsible for managing personnel, overseeing customer service, 
planning a marketing strategy for products in Florida, requesting merchandise from the factory, overseeing 
customs paperwork, reviewing inventory control, and classifying merchandise. 
In a letter dated October 9, 2002, the petitioner stated that the beneficiary's position involved the management 
of the business enterprise and included: 
D Managing United States ofice finance; 
0 Confers with organization officials to plan business objectives; 
o Develop and implement policies and procedures for company operations; 
0 Train and hire and fire employees; 
o Reviews activity reports and financial statements to determine progress and status in 
attaining objectives and revises objectives and plans in accordance with current 
conditions; and 
Directs and coordinates formulation of financial programs to provide funding for 
new or continuing operations to maximize returns on investments and increase 
productivity. 
The director determined that the petitioner had not submitted sufficient evidence to establish that the 
beneficiary had been or would continue to be employed primarily in a managerial or executive capacity. The 
director stated that the petitioner had not demonstrated that the beneficiary manages or directs the 
management of a department, subdivision, function, or component of the organization. The director also 
stated that the petitioner had not established that the beneficiary would be involved in the supervision and 
control of the work of other supervisory, professional or managerial employees who will relieve him from 
performing the services of the organization. 
SRC 03 010 51654 
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On appeal, counsel argues that the beneficiary manages the entire organization, not just a function, 
subdivision, or component of the U.S. entity. Counsel described the beneficiary's duties as: 
Corporate signature and representation; 
Keep an up to date product inventory, accounts receivable and the companies [sic] 
assets; 
Keep control of all legal aspects of the company, and follow up 'in regards to any 
situation that may arise on this subject. Be responsible of the legal aspects of hiring and 
releasing company employees; maintain liaison with the company's custom agent, pay 
international providers, and pay local suppliers, oversee regular payroll and overtime 
payments; 
Coordinating together with the marketing and sales manager, the strateges to increase 
sales. Keep an up to date monthly control of the sales representatives hired and the sales 
increases in order to determine the company's development; 
Prepare the annual budget of all of the company's operation; 
Keep an up to date products inventory in the main warehouse; 
Coordinate along with the service department and sales promotions; [and] 
Determine products to be featured for quarterly sales catalog, and those to be exported 
according to inventory balances; [sic] 
In a letter dated November 22, 2002, the president and CEO of Zermat International stated that a general 
manager reports directly to the board of directors and the executive committee; and will present monthly 
statements to the executive committee when required. The CEO described the beneficiary's job duties as: 
Optimize the use of financial and human resource of [the U.S. entity] with the objective to 
achieve the maximum growth of the company in the northern American market and the 
fulfillment of our goals and objectives. , 
Planning, organizing, directing, supervising and controlling all the activities in the following 
areas: 
o Finance and administration 
o Marketing and sales 
o Distributors and sales offices 
o Keep an up to date product inventory, accounts receivable and the companies 
[sic] assets. 
o Keep control to all legal aspects of the company, and follow up any situation 
that may arise on this subject. Be responsible of the Iegal aspect of turing anti 
releasing company employees maintain liaison with the company's custon~ 
agent, pay international providers, and pay local suppliers, effect regular payroll 
and overtime payments. 
o Coordinating together with the marketing and sales manager, the stratepes to 
increase sales. Keep an up to date monthly control of the sales representatives 
hired and the sales increases in order to determine the company's development. 
o Prepare the annual budget of all the operation. 
o Keep an up to date products inventory in the main warehouse[.] 
SRC03 01051654 
Page 6 
o Coordinate along with the service department, sales promotions to dispose of an 
idle stock. 
o Determine products to be featured for quarterly sales catalog, and those to be 
exported according to inventory. 
o Keep an accurate control of the imported merchandise, maintain products sales 
statistics, monthly rotation, sales increase etc. 
o The general manager is the only authorized bank, liaison, issue and sign checks, 
make deposits, check bank statements, check daily petty cash activity and report 
daily credit card transactions. 
o Make sure the goals and objectives set forth by the parent company are met. 
The petitioner submitted an organizational chart of the U.S. entity, which depicted a warehouse administrator, 
commercial director, customer service representative, and telemarketing representative all under the direction of 
the general manager. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity. In evaluating whether the beneficiary is 
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. $ 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 asserts that the beneficiary 
performs managerial duties but fails to distinguish the extent to which she performs such duties. Further, the 
petitioner must show that the beneficiary perfoms the high-level responsibilities that are specified in the 
definitions, and 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 (9th Cir. July 30, 1991). The petitioner contends that the beneficiary is employed by the 
U.S. entity in a managerial capacity in that she plans, organizes, directs, supervises, and controls all activities 
of the organization. However, a review of the record demonstrates that the beneficiary primarily performs 
marketing, sales, and distribution duties rather than managerial duties. Further, there is insufficient evidence 
to show that the U.S. entity is or will be able to support a managerial or executive position. Consequently, 
there is insufficient evidence to show that the beneficiary will perform the high-level responsibilities as 
defined, or that she will primarily perform those duties rather than spending the majority of her time 
performing day-to-day functions of the organization. 
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 stated that the 
beneficiary's duties included: "finance and administration, marketing and sales, distnbutors and sales offices, 
keep an up to date product inventory, and keep control to all legal aspects of the company." 
The petitioner described the beneficiary as being involved in the negotiating process, customer service, sales, 
inventory control, and marketing of the petitioner's product. Since the beneficiary is directly involved in 
customer service, sales, and marketing of the petitioner's product she is performing tasks necessary to provide 
a service or product and these duties will not be considered managerial or executive in nature. An employee 
who primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter of Church Scientology International, 19 IRLN Dec. 
593,604 (Comm. 1988). 
SRC 03 010 51654 
Page 7 
In addition, the petitioner fails to document what proportion of the beneficiary's duties would be managerial 
functions and what proportion would be non-managerial. The petitioner lists the beneficiary's duties as 
managerial, but it fails to quantify the time the beneficiary has spent and will spend performing each duty. 
This failure of documentation is important because several of the beneficiary's daily tasks, such as 
coordinating with the sales and marketing departments and maintaining an up-to-date inventory do not fall 
directly under traditional 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. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. 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 10 1 (a)(44)(A)(iv) of the Act. Because there is no independent documentary evidence 
to demonstrate that the subordinate staff is composed of supervisory, professional, or managerial enlployees, 
the beneficiary cannot be deemed to be primarily acting in a managerial capacity in that respect. 
Furthermore, there has been insufficient evidence submitted to demonstrate that the U.S. entity actually 
employs anyone other than the beneficiary. 
Upon a review of the record, it does not appear that the petitioner has reached the point that it can enlploy the 
beneficiary In a primarily managerial or executive position. It appears from the record that the beneficiary 
has been and will continue to be an agent or distributor of the petitioner's perfumes and cosmet~cs. The 
petitioner has failed to demonstrate that the beneficiary has been or will be employed in a primarily qualifying 
managerial or executive capacity. For this reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligbility 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.