dismissed L-1A Case: Publishing

U.S. Department of Homelaed Security 
20 Mass. Ave, N.W. Rrn. A3012 
Washington. DC 20529 
U.S. Citizenship 
and Immigratio~l 
Services 
File: EAC 03 048 54866 Office: VERMONT SERVICE CENTER Date: 
7 '* + ,? i" 
C 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 10l(a)(15)(~) 
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. 
-7 . .yy. 
-A "---' //-? 
,--- 
d' + Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 048 54866 
Page 2 
DISCUSSION: The Director, Texas 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 seeking to extend the employment of its presidemi and 
chief executive officer 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. 9 1101(a)(15)(L). The 
petitioner is a corporation organized in the State of New Y 
publishing. The petitioner claims that it is the subsidiary of 
in Ahmedabad, India. The beneficiary was initially granted a one-year period of stay to open a new 
office, and the petitioner now seeks to extend the beneficiary's stay for two more years. 
The director denied the petition, concluding that the petitioner did not establish that the beneficiary has 
been and will continue to be employed in the United States in a primarily managerial or executive 
capacity. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner contends 
that the denial was arbitrary and capricious, and that both the petitioner and the beneficiary are qualified 
for the benefit sought. In support of this contention, counsel submits a brief and additional evidence. 
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. 4 214.2(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. 
EAC 03 048 54866 
Page 3 
(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 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. 
The regulation at 8 C.F.R. 9 214.2(1)(14)(ii) also provides that a visa petition, 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. 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 acting in a 
EAC 03 048 54866 
Page 4 
managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional. 
Section lOl(a)(44)(B) of the Act, 8 U.S.C. 1 101(a)(44)(B), defines the term "executive capacity" iis 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. 
In the initial petition, the petitioner, in a letter dated November 25, 2002, states that the U.S. company is a 
newspaper publishing company. It states that, since the publishing business was slow to start, the 
petitioner in the interim has commenced operations as an ethnic grocery/video rental store and, while 
operating said store, it would continue to pursue a business venture in the field of publishing. The - 
petitioner submitted a copy of its franchise agreement and commercial sublease with 
and .I and 
outlines the petitioner's two- ear agreement to operate the convenience store known as 
With regard to the beneficiary's duties, the petitioner stated: 
[The beneficiary] will continue to assume the position of President and CEO. This is a 
key ManageriaVExecutive position in our organization. He will be vested with 
considerable discretionary authority in regard to coordinating, directing, and 
implementing the overall operations and policies of our company. 
1. Oversee the operations in the U.S. and coordinate the same with our parent 
company in India. 
2. Manage administrative operations, including marketing, personnel and general 
administrative tasks. 
3. Develop and implement plans for long-term growth, set corporate policies, goals 
and objectives. 
4. Oversee and manage financial operations. 
5. Analyze, develop, and implement marketing plans and strategies. 
6. Research the U.S. ethnic Indian newspaper and grocery Sales in order to develop 
marketing and sales strategies on a short and long term basis. 
EAC 03 048 54866 
Page 5 
7. Communicate with parent company with regard with regard [sic] to current status 
of market, supply and demand issues, financial status of the US company, and 
implementation of long term and short-term goals. 
Furthermore, the petitioner stated: 
Clearly, the aforementioned duties are of an executive nature customarily associated with 
the position of President. In addition, [the beneficiary] will be vested with wide 
discretionary power with respect to handling day-to-day decision making and hiring, 
training, retaining and discharging support staff in accordance with applicable federal 
regulations. 
[The beneficiary] will manage an essential function of the company, to wit, newspaper 
publication and wholesale trading of ethnic Indian grocery sales. It must be emphasized 
that the beneficiary perform [sic] the function. For example, the beneficiary will directly 
supervise 3 employees and Professional newspaper workers (will be 7). 
The petitioner further stated that aside from the seven newspaper workers to be hired in the future, the 
beneficiary would oversee a manager, a marketing specialist, and an administrative/account assistant. In 
addition, counsel for the petitioner submitted a separate letter, also dated November 25, 2002, which 
outlined the law governing the transfer of intracompany managers and executives and discussed in detail 
the manner in which the beneficiary was qualified for such status. 
The director was not satisfied with the initial evidence submitted, and issued a request for additional 
evidence on January 24, 2003. The director noted that the U.S. operation had not met the point where it 
could support a managerial position, and appeared to be engaged in a completely different business (the 
operation of an ethnic grocery store) than the business identified in the initial and current petitions 
(newspaper publishing). The director requested a statement regarding the actual nature of the petitioner's 
current business, as well as a statement regarding the projections for the future of the newspaper 
publishing aspect of the business. In addition, the director requested the petitioner to provide information 
with regard to any outside contractors used by the petitioner in lieu of employees during the previous 
year. 
In a response dated April 14,2003, the petitioner essentially provided almost an exact copy of the letter of 
support it filed with the initial petition. In addition, it attached copies of the U.S. entity's financial 
statement, as well as copies of the petitioner's Forms 941, Employer's Quarterly Federal Tax Return, for 
the quarters ending September 30, 2002, December 31, 2002, and March 31, 2003. Only the return for 
the quarter ending September 30,2002 included the attachments which listed the names of emp1oyee:j and 
the wages they were paid for that quarter. 
EAC 03 048 54866 
Page 6 
On June 26, 2003, the director denied the petition. The directo?"concluded that the petitioner had failled to 
establish that the beneficiary has been and would continue to be employed in the United States in a 
primarily managerial or executive capacity.' Specifically, the director noted that the petitioner had failed 
to establish that the business for which the beneficiary was originally transferred to the United States to 
commence and manage had not yet been established, and instead, this highly qualified 
managedexecutive, as alleged by the petitioner, was now operating an ethnic grocery and video rental 
store. Based on the nature of this business and the evidence provided in the record, the dircxtor 
concluded that the beneficiary was engaged in the day-to-day activities of the business as opposed to 
primarily performing managerial or executive tasks. Finally, the director concluded that the petitioner 
had not yet reached the point where it could support a managerial position. 
On appeal, counsel for the petitioner again submits an almost identical letter to that of the initial letter of 
support, dated November 25, 2002, and the response to the request for evidence, dated April 14, 2:003. 
Counsel also resubmits the legal arguments presented in his letter of November 25, 2002, which are 
generalized and repeated, and not specifically structured to the director's specific reasons for the denial. 
Upon review, the AAO concurs with the director's findings. 
When examining the executive or managerial capacity of the benefic~ary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 9 214.2(1)(3)(ii). In this case, the petitloner 
provided a generalized description of the beneficiary's duties and concludes that the beneficiary is thus a 
manager andlor an executive. Conclusory assertions regarding the beneficiary's employment capaciyy. are 
not sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afyd, 905 1.'. 2d 
41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.).  specific:^ 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. J'edin 
Bros. Co., 724 F. Supp. at 1108. 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 answer a critical question in this case: What does the 
beneficiary primarily do on a daily basis'? The actual duties themselves will reveal the true nature of the 
employment. Id. 
The AAO notes some confusion with regard to the petitioner's descriptions of the beneficiary's duties. 
The petitioner also provides a breakdown of the amount of hours the beneficiary devotes to each stated 
duty. However, since this list is under the heading entitled "IV. THE BENEFICIARY HAS BEEN 
I The AAO notes that the director's review of the beneficiary's managerial and/or executive employrnent 
capacity during the petitioner's first year of operations was incorrect. The regulations do not require that 
the beneficiary be employed in a managerial or executive capacity during this first year when he is 
coming to the United States to open a new office; rather, they require the petitioner to support the 
beneficiary in a primarily managerial or executive capacity by the end of the first year of operations. See 
8 C.F.R. $ 214.2(1)(14)(ii). 
EAC 03 048 54866 
Page 7 
EMPLOYED IN AN EXECUTIVE CAPACITY ABROAD FOR AT LEAST ONE YEAR," and since a 
separate heading lists the beneficiary's U.S. duties, it is unclear if this breakdown applies to1 the 
beneficiary's current duties while in the United States or exclusively to his position abroad. 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 petitloner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
Presuming that this breakdown of hours applies to the U.S. position of the beneficiary, the AAO notes 
that the majority of the beneficiary's time is spent "[rlesearching the US ethnic Indian newspaper and 
grocery market in order to develop marketing and sales strategies on a short and long-term basis (10 
hours)." The beneficiary also appears to devote a significant amount of time to "[flormulating the 
company's short and long-term business goals (5 hours)," "[mleeting with marketing staff in order to 
communicate the findings of market research and instruct Representative regarding preferred course of 
action (5 hours)," and "[sletting and controlling budgets and related fiscal matters, including meeting with 
the company's CPA to discuss financial planning for the company (5 hours)." 
Based on this description, it appears that the beneficiary is devoting the majority of his time to marketing 
and market research. It is unclear why the beneficiary's time is primarily devoted to this area, particularly 
since the petitioner claims to emplo n the position of marketing specialist. Among Ms. 
duties are "implementing marketing plans on a short and long-term basis as needed," a duty which 
listed as a primary duty of the beneficiary. Based on this information, it appears that the 
beneficiary is acting on the same level as the employees he allegedly oversees, and thus is at best a first- 
line supervisor engaging in the day-to-day tasks of the business. 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. See Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Furthermore, the petitioner's employment situation is not credible. The petitioner, despite its claim that it 
is a newspaper publishing company, is currently operating an ethnic grocery and video rental store.' At 
the time of filing, the petitioner was a 2-year-old newspaper publishing company that claimed to have a 
projected gross annual income of $400,000. However, its net income as claimed on its balance sheet for 
the period ending March 3 1, 2003 is only $68,260.11. The firm claims to employ the beneficiary as 
president/CEO, plus a manager, a marketing specialist, and an administrative/accounting assistant. The 
petitioner has submitted copies of its Forms 941, Employer's Quarterly Federal Tax Return, for the 
quarters ending September 30, 2002, December 3 1, 2002, and March 3 1, 2003. However, only the return 
2 It should be noted that while the U.S. entity is not bound to operate the same type of business as the 
foreign entity, the fact that the petitioner initially claimed to operate a newspaper publishing business but 
now operates an ethnic grocerylvideo rental store raises questions with regard to the petitioner's 
credibility. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 
19 I&N Dec. 582,591 (BIA 1988). 
EAC 03 048 54866 
Page 8 
for the quarter ending September 30, 2002 included the attachments which listed the names of employees 
and the wages they were paid for that quarter. The only true evidence, not including the petitioner's 
unsupported contentions, that the petitioner actually employs these persons is the September 30, 2002 
quarterly tax return. This return, however, covers only the period from July 1, 2002 through September 
30, 2002. Aside from the petitioner's contentions, there is no other definitive evidence which confirms 
that the petitioner in fact employs the beneficiary and the three named subordinate employees. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Even if the employment of these employees was verified, the credibility of the petitioner's business is still 
at issue. The AAO notes that one of these employees has a managerial or executive title, whereas the 
other two employees appear, by nature of their position title and stated duties, to be performing higher 
level marketing and accounting duties. The petitioner did not submit evidence that it employed any 
subordinate staff members who would perform the actual day-to-day, non-managerial operations of a 
grocery storelvideo rental store, such as stocking shelves, running the cash register, and maintaining 
inventory. Based on the petitioner's representations, it does not appear that the reasonable needs o:F the 
petitioning company might plausibly be met by the services of the beneficiary as president and three other 
managerial or mid-level employees. In fact, it seems more likely that the beneficiary is actually 
performing many of the tasks necessary to continue the business operations of the petitioner. 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). 
Counsel correctly observes that a company's size alone, without taking into account the reasonable nleeds 
of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See tj 101(a)(44)(C) of the Act, 8 U.S.C. 3 1101(a)(44)(C). Instead, an executive's duties must 
be the critical factor. However, if CIS fails to believe the facts stated in the petition are true, then that 
assertion may be rejected. Section 204(b) of the Act, 8 U.S.C. 3 1154(b); see also Systronics Cotj9. V. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). A critical analysis of the nature of the petitioner's business 
undermines counsel's assertion that the subordinate employees relieve the beneficiary from performing 
non-qualifying duties. Rather, it appears from the record that the only individuals performing any 
marketing-related functions are the beneficiary and the marketing specialist. The manager and the 
administrative assistant also have specific duties which are broken down into hourly allotments; thereiore, 
no additional time has been designated in their schedules for the day-to-day tasks crucial to the continued 
operation of a grocery store. It can only be assumed, since it has not been proven otherwise, that the 
beneficiary is performing all other marketing functions, as well as many of the daily tasks associated with 
the business, such as operating the cash register and taking inventory. Based on the record of proceeding, 
the beneficiary's job duties are principally composed of non-qualifying duties that preclude him from 
functioning in a primarily managerial or executive role. As previously stated, an employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be emplclyed 
in a managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. at 604. 
EAC 03 048 54866 
Page 9 
Finally, the petitioner's explanation regarding the failure of the publishing business to commence 
operations relies heavily on the fact that the beneficiary did not enter the United States until May 20, 
2002, despite the fact that he was granted L1-A status on November 29, 2001. The petitioner indicates 
that it plans to hire seven additional newspaper workers and branch out in this area in the future. 
However, 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States operation one year within the 
date of approval of the petition to support an executive or managerial positioii. There is no provision in 
CIS regulations that allows for an extension of this one-year period. If the business is not sufficiently 
operational after one year, the petitioner is ineligible by regulation for an extension. In the instant matter, 
the petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial 
or executive position. For this reason, the petition may not be approved. 
Beyond the decision of the director, it does not appear that a qualifying relationship has been established 
between the petitioner and the foreign entity. The regulation and case law confirm that ownership and 
control are the factors that must be examined in determining whether a qualifying relationship exists 
between United States and foreign entities for purposes of this visa classification. Matter of Church 
Scientology International, 19 I&N Dec. 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N 
Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornrn. 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. 
In this matter, aside from the petitioner's assertions that a qualifying relationship exists, there i:; no 
documentary evidence in the record to corroborate this claim. As general evidence of a petitioiner's 
claimed qualifying relationship, stock certificates, the corporate stock certificate ledger, stock certificate 
registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must be examined 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 Mattcr of 
Siemens Medical Systems, Inc., 19 I&N Dec. at 362. Without full disclosure of all relevant documents, 
CIS is unable to determine the elements of ownership and control. For this additional reason, the petition 
may not be approved. 
Furthermore, it does not appear that the petitioner was doing business as required by the regulations. The 
regulation at 8 C.F.R. 3 214.2(1)(l)(ii)(H) defines the term "doing business" as "the regular, systematic, 
and continuous provision of goods andlor services by a qualifying organization and does not include the rnere 
presence of an agent or office of the qualifying organization in the United States and abroad." 
In this matter, the petitioner claims that it is a newspaper publishing company and that it operates an ethnic 
grocery and video rental store. By the petitioner's own admission, it is not currently engaged in the 
publishing business. With regard to the grocery store, the only documentation contained in the record is a 
copy of the petitioner's commercial sublease and franchise agreement to operate ths store. Despite the 
EAC 03 048 54866 
Page 10 
director's request for additional evidence in the form of photographs of the interior and exterior of the 
location, the petitioner failed to submit this evidence. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
The documentation in the record is insufficient to confirm that the petitioner has been engaged in the 
regular, systematic, and continuous provision of goods and services as required by the regulations. 
Acceptable evidence of the petitioner's business dealings, being a grocery store and video supplier, would 
include invoices or copies of receipts for inventory purchased or sales records for a given period of time. 
The balance sheet submitted does not establish that the petitioner has been not doing business as required 
by 8 C.F.R. 3 214.2(1)(14)(ii)(B). For this additional reason, the petition may not be approved. 
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). 
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 it discretion with respect to all of the AAO's enumerated grounds. 
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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.