dismissed L-1A Case: Pet Products

identifyiw & di&ed to 
prevent ctc3~23 
invasion of pa 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 04 153 50 174 Office: NEBRASKA SERVICE CENTER Date: JAN 2 9 2007 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(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. 
/ Administrative Appeals Office 
LIN 04 153 50174 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimrnigrant 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 seelung to extend the employment of its presidentlchief 
executive officer as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. tj 1 10 1 (a)(15)(L). The petitioner, an Illinois corporation, 
states that it is engaged in the marketing,, sales and distribution of pet toys. The petitioner claims that it is a 
subsidiary of 1- located in the Philippines. The beneficiary was initially approved for 
a one-year period of L-1A classification in order to open a new office in the United States, and the petitioner 
now seeks to extend the beneficiary's status for two additional years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in a primarily managerial or executive capacity. The director observed that the petitioner had failed 
to submit requested evidence regarding the petitioner's staffing levels. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the MO for review. On appeal, the petitioner clarifies that the petitioner "has not yet 
finalize[d] its organizational structure," and confirms that the beneficiary is currently the company's only 
employee. The, petitioner asserts that the beneficiary manages the operation and is in the process of hiring 
additional personnellstaff to support the beneficiary under the extended petition. The petitioner submits a brief 
and additional evidence in support of the appeal. 
To establish eligibility for the 'L-1 nonimmigrant 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. 3 214.2(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 
LIN 04 153 50174 
Page 3 
education, training, and employment qualifies hirnlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(1'4)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Forrn 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) 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. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed by the United States entity in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C: tj 1 101 (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 
LIN 04 153 50174 
Page 4 
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. 3 1 101(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 nonimrnigrant visa petition was filed on April 28, 2004. The petitioner stated on Form 1-129 that the 
beneficiary, as the president and chief executive officer of the company, would "direct the startup operations 
of this new subsidiary in the U.S. aimed at the marketing, sales and distribution of [the foreign entity's] pet 
toy and related products to distributors, dollar stores, and Petsmart and other pet stores in the USA." The 
petitioner stated that the company employs 300 workers "worldwide." The petitioner submitted a letter dated 
March 25, 2004, in which it stated "the terms and conditions of employment have not changed since the 
original L1A Application was approved on April 30, 2003." The petitioner did not submit supporting 
documentation as required by the regulation at 8 C.F.R. 5 214.2(1)(14)(ii). 
Accordingly, the director issued a request for additional evidence on June 14, 2004, instructing the petitioner 
to submit, in part: (1) a statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; and (2) 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. 
In a response dated September 2, 2004, the petitioner submitted the following description of the beneficiary's 
duties, and noted that he would perform the same duties under the extended petition: 
1. Oversee the day-to-day operations of the company. 
2. Implement the company's Sales and Marketing Program which basically covers the 
following: 
a. Implement the company's two-tiered marketing plan and strateges. At the first 
level, job orders from direct importers and local sales will be handled by [the 
foreign entity]. At the second level, marketing and sales to Dollar Stores and 
agentsldistributions in the United States will be handled by [the petitioner]. With 
a different target market, both companies can remain focus [sic] on their sales 
targets and strategies. 
LIN 04 153 50174 
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b. Expand its market base through the appointmentlhiring of sales 
agentsldistnbutors in various parts of the United States, with Gumee, Illinois as 
its base of operations. 
c. To tap the E-mail marketing the United States through having its own website 
and subscription to other websites e.g., Wholesale Central.com. 
3. To keep its mother company . . . well informed of the current toy pets, designs, trends and 
new products in the United States. 
4. To keep [the foreign entity] updated with the foregoing through submission of regular 
reports. 
The petitioner did not address the director's request for a statement regarding the staffing of the company, or 
provide evidence of wages paid to employees. 
The director denied the petition on November 17, 2004, concluding that the petitioner had failed to establish 
that the beneficiary would be employed in a managerial or executive capacity under the extended petition. 
The director observed that, without comprehensive position descriptions for all of the U.S. entity's employees, 
it cannot be determined that the beneficiary will perform primarily managerial or executive duties. The 
director further noted that the petitioner had not provided a detailed description of the beneficiary's duties, and 
had failed to demonstrate that the petitioner employed a subordinate staff of professional, managerial or 
supervisory personnel who would relieve the beneficiary from performing non-qualifying duties. 
On appeal, the petitioner asserts the following: 
On the organizational structure and staffing requirements, we must admit that at present, [the 
petitioner has not yet finalize [sic] its organizational structure, e.g., staffing of the new 
operation, including the number of employees and types of position[.] However, it should be 
noted that market development is the most crucial/difficult area of consideration as far as the 
operation of any business entity is concerned. Albeit equipped with the required marketing 
skills to meet the said objective, it is imperative that proper funding be provided to realize the 
same. 
[The beneficiary] . . . is well cognizant of the fact that organizing and staffing should go hand 
in hand with the requirements of the market, so that in order to cut cost, while the volume of 
business generated and transaction package are still marginal to warrant the hiring of 
additional staff, [the beneficiary] has perfectly managed to run the overall operations of [the 
petitioner]. 
The petitioner provides a list of existing customers and potential buyers of the petitioner's product, and states 
"with the development of this new marketslcustomers in the U.S.A., we are now in the process of 
hiringlselecting the most qualified and competent personnellstaff that will relievelsupport [the beneficiary] in 
the operations of [the petitioner]." The petitioner requests that the extension be granted to allow the company 
additional time to "comply with your requirements of hiringlselecting and training qualified and competent 
personnel." 
ZIN 04 153 50174 
Page 6 
Upon review of the petition and supporting evidence, the petitioner has not established that the beneficiary 
will be employed in a managerial or executive capacity under the extended petition. 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. !j 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 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. Initially, the petitioner merely indicated that the 
beneficiary's position would "oversee the day-to-day operations," "implement the company's.. .marketing 
plan and strategies," and inform the petitioner's parent company regarding U.S. product and market trends. 
The petitioner did not, however, indicate the specific managerial or executive duties the beneficiary would 
perform to oversee the operations, or provide evidence that someone other than the beneficiary would be 
responsible for implementing the marketing plan, i.e., marketing, promoting and selling the products in the 
United States, or performing market research. Reciting the beneficiary's vague job responsibilities or broadly- 
cast business objectives is not sufficient; the regulations require a detailed description of the beneficiary's 
daily job duties. The petitioner has failed to provide any detail or explanation of the beneficiary's activities in 
the course of his daily routine. The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). 
Here, while the beneficiary evidently exercises discretion over the activities of the U.S. company as its 
president and sole employee, it is clear that he must also be responsible for all operational tasks associated 
with operating an import and wholesale business, including duties associated with market research, 
promotion, sales, submitting purchase orders to the parent company, arranging import of products from 
overseas and domestic distribution of goods to U.S. customers, handling the day-to-day finances of the 
company, and other administrative, operational and clerical tasks, thus bringing into question how much of 
the beneficiary's time can realistically be devoted to managerial or executive duties. Although the petitioner 
referenced the beneficiary's responsibility for appointing and hiring sales agents around the United States, the 
petitioner later confirmed that no additional employees had been hired as of the date the petition was filed. 
Accordingly, the petitioner has failed to establish that non-qualifying duties will not require the majority of 
the beneficiary's time. An employee who "primarily" performs the tasks necessary to produce a product or to 
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 Int 'l., 19 I&N Dec. 593, 604 (Cornm. 1988). 
Pursuant to section 10 1 (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
LIN 04 153 50174 
Page 7 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. 8 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. tj 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. The one-year "new office" provision is an accommodation for newly established 
enterprises, provided for by CIS regulation, that allows for a more lenient treatment of managers or executives 
that are entering the United States to open a new office. When a new business is first 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 low-level 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 that first year. In an accommodation that is more lenient than the strict language of 
the statute, the "new office" regulations allow a newly established petitioner one year to develop to a point 
that it can support the employment of an alien in a primarily managerial or executive position. 
However, there is no provision in CIS regulations that allows for an extension of this one-year period. If the 
business does not have sufficient staffing after one year to relieve the beneficiary from primarily performing 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. Therefore, the 
petitioner's statement on appeal that it is in the process of hiring staff to assist the beneficiary has no bearing 
on a determination of the beneficiary's eligibility as of the date the petition was filed. 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). In the instant matter, the petitioner has 
not reached the point that it can employ the beneficiary in a predominantly managerial or executive position. 
In sum, the petitioner has not demonstrated that the beneficiary will be primarily supervising a subordinate 
staff of professional, managerial, or supervisory personnel or managing an essential function of the U.S. 
company. See section 101(a)(44)(A)(ii) of the Act. Furthermore, the petitioner has not established that it 
employs a staff that will relieve the beneficiary from performing non-qualifying duties so that the beneficiary 
may primarily engage in managerial duties. Further, regardless of the beneficiary's position title, the record is 
not persuasive that the beneficiary will function at a senior level within an organizational hierarchy, or 
primarily focus on the broad goals and policies of the organization rather than the day-to-operations of the 
enterprise in an executive capacity. Even though the enterprise is in a preliminary stage of organizational 
development, the petitioner is not relieved from meeting the statutory requirements. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. tj 214.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit, sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.