dismissed L-1A Case: Restaurant Equipment Supply

U.S. Department of Homeland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
, . *, <*** 
t 'k 
File: EAC 04 103 53388 Office: VERMONT SERVICE CENTER Date: sp 3 0 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] 5)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 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. 
Administrative Appeals Office 
EAC 04 103 53388 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss 
the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager 
as an L-I A nonimmigrant intracompany transferee pursuant to section 10 1 (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 
Puerto Rico that claims to be a restaurant equipment supplier. The petitioner claims that it is the 
subsidiary of Master Hotel Supply, C.A., located in Caracas, Venezuela. 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 will 
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 alleges that 
the director erred in relying primarily on the petitioner's size and that she erroneously disregarded 
evidence pertaining to the managerial nature of the beneficiary's duties. In support of these contentions, 
counsel submits a brief and additional evidence. 
To establish eligibility for the L-l 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. tj 214.2(1)(3) states that an individual petition filed on Fonn 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 (I)(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. 
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(iv) Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the alien's 
prior education, training, and employment qualifies himher to perform the 
intended services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 2 14.2(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 (l)(l)(ii)(G) of this section; 
(b) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(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 primary issue in this matter is whether the beneficiary will be employed in a managerial or 
executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 1101(a)(44)(A), defines the term "managerial capacity" as 
an assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, 
or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority 
to hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or with 
respect to the function managed; and 
EAC 04 103 53388 
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(iv) exercises discretion over the day to day operations of the activity or function for which 
the employee has authority. A first line supervisor is not considered to be acting in a 
managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of 
the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
With the initial petition, the petitioner provided a brief description of the beneficiary's duties in a letter 
dated February 20, 2004. Specifically, the petitioner stated: 
[The beneficiary] has joined [the petitioner] on a temporary assignment to fill the position 
of general manager. In this position, he is responsible for managing the general business of 
the company, including formulating and implementing policies to improve profitability, 
negotiating and entering into contracts, making all hiring and firing decisions, coordinating 
the work of outside contractors, formulating and implementing marketing strategies and 
promoting the company. 
The director was not satisfied with the initial evidence submitted and issued a request for additional 
evidence on March 8, 2004. The director requested an explanation as to how the beneficiary would be 
primarily employed in a managerial capacity and specifically requested a more comprehensive description 
of the beneficiary's proposed duties, a breakdown of the number of hours per week he devoted to each 
duty, and a list of the U.S. entity's employees, including their names, position titles, and comprehensive 
position descriptions. 
In a response dated April 24, 2004, counsel for the petitioner provided an updated description of the 
beneficiary's position and duties. Specifically, counsel stated: 
[The beneficiary] will function in a managerial capacity as General Manager of [the 
petitioner]. He will be managing an essential function with the company; more specifically 
he will be responsible for managing the general business of the company. He will function 
at a senior level with respect to the general management of the U.S. company because he is 
at the highest level of authority at the company. There is no supervisory position above 
that of [the beneficiary]. As General Manager of the company, [the beneficiary] exercises 
EAC 04 103 53388 
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discretion over the day-to-day operations of the company's general management, for which 
[the beneficiary] has authority, as defined by 8 C.F.R. 8 214.2. 
[The beneficiary] is involved with the day-to-day operations of the company only inasmuch 
as he overseas the day-to-[dlay operations and exercises discretion over the same. Aside 
from his managerial duties, [the beneficiary] spends a very small percentage of his time on 
activities not normally performed by management, specifically formulating marketing 
strategies. This is because the U.S. company is still in its early stages of development. 
[The petitioner] has merely been in existence for one year and is still in the process of 
expanding its business. However, [the beneficiary] does not perform the tasks necessary to 
produce the product or provide the services of the company. The service that [the 
petitioner] currently provides is the installation and maintenance of ice cream and bakery 
equipment. The U.S. company employs independent subcontractors to perform the 
particular tasks of installing and maintaining the equipment. In contrast, [the beneficiary] 
does not partake in the tasks of providing these services. Rather, the beneficiary oversees 
the general administration of the company and has discretion over the daily operations of 
the company's general management, as as [sic] such qualifies as managerial under 8 C.F.R. 
5 214.2. 
Counsel for the petitioner further indicated that additional evidence was submitted in response to the 
director's queries. Also attached to counsel's letter was a breakdown of the amount of hours the 
beneficiary devoted to each of his duties. Specifically, the document stated: 
In the position of General Manager, [the beneficiary] will be responsible for managing the 
general business of the company, including: 
1. Formulate and implement policies to improve 
profitability 5-7 hrslweek 
2. Negotiate and enter into contracts 12-1 4 hrslweek 
3. Interview candidates for new positions, making all 
hiring and firing decisions 2-3 hrslweek 
4. Selecting outside contractors as needed basis 
5. Coordinating the work of outside contractors; This 
includes overseeing import of equipment, delivery, 
installation, etc. 18-20 hrslweek 
6. Formulating and implementing marketing strategies and 
promoting the company. This includes attending 
expositions and trade shows, market analyses, etc. 5 hrslweek 
With regard to the employment structure of the U.S. entity, the petitioner submitted a document which 
listed its employees. Specifically, it provided that the beneficiary served as general manager and that he 
oversaw a secretary, a warehouse employeelattendant, an installer, and a refrigerator technician. The 
petitioner noted that the warehouse employeelattendant was only a part-time employee who worked five 
hours per day, and that the installer and the refrigerator technician were independent contractors. 
EAC 04 103 53388 
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Finally, the petitioner specifically addressed the director's questions regarding the beneficiary's 
subordinate supervisors and the managerial and executive skills required to perform the duties of the 
general manager position. The petitioner stated that there were currently no subordinate supervisor 
positions below the beneficiary which it attributed to the fact that the petitioner was still in a stage of 
economic growth. With regard to the managerial and executive skills required to perform the duties of 
the beneficiary's position, the petitioner essentially restated the list of the beneficiary's duties and stated 
that the employee must be able to negotiate contracts, make hiring and firing decisions, and formulate 
marketing strategies. Finally, the petitioner concluded by stating that the beneficiary would spend 
approximately four percent (4%) of his time performing non-executive duties. 
On April 30, 2004, the director denied the petition. The director concluded that the petitioner had failed 
to establish that the beneficiary 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 beneficiary would not engage in the day-to-day operations of the business. In addition, 
the director noted that the small staff of the petitioning entity did not appear to be sufficient to relieve the 
beneficiary from performing non-qualifying tasks, specifically since one employee was a part-time 
employee and two others were contractors hired on an "as needed" basis. Finally, the director found that 
the petitioner had not established that the beneficiary would be supervising a subordinate staff of 
managerial, supervisory, or professional employees who could relieve him from performing non- 
qualifying duties. 
On appeal, counsel for the petitioner provides a detailed brief outlining the petitioner's position and the 
way in which it believes the director's decision was erroneous. Specifically, counsel alleges that the 
beneficiary's duties do in fact fall within both the definition of managerial and executive capacity. In 
addition, counsel asserts that the director wrongly ignored the petitioner's two independent contractors as 
evidence that the beneficiary's management of them constituted managerial capacity and further alleged 
that the director ignored the stated duties of the beneficiary's subordinate employees. Finally, counsel 
asserts that the director's reliance on the size of the petitioning entity was erroneous. 
When examining the executive or managerial capacity of the beneficiary, the MO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). In this case, the petitioner 
provided a vague and generalized description of the beneficiary's duties and concludes that the 
beneficiary is thus a manager and/or an executive. Conclusory assertions regarding the beneficiary's 
employment capacity 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. 1103, 1108 
(E.D.N.Y. 1989), cfyd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Iizc. v. Meissner, 1997 WL 188942 
at *5 (S.D.N.Y.). 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., 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. Although the petitioner provided additional details about 
the beneficiary's duties in response to the request for evidence, the petitioner still failed to answer a 
EAC 04 103 53388 
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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 MO notes that, despite the director's specific request for an explanation as to how the beneficiary 
would act in a primarily managerial or executive capacity and thus refrain from performing the routine 
day-to-day duties of the business, the petitioner failed to provide such an explanation. The petitioner 
merely paraphrases the definitions of "managerial capacity" and "executive capacity" in its response to 
the request for evidence and thereby concludes that the beneficiary is functioning in a qualifying capacity. 
Based on this limited recitation of duties, the director found that the petitioner had not met its burden of 
proof in this matter. 
According to the record of proceeding prior to adjudication, the beneficiary oversaw two other 
employees: a secretary whose duties consisted of answering the phones, filing, and maintaining the 
payroll, as well as a part-time warehouse employee, who was responsible for maintaining the warehouse 
stock and delivering products and merchandise to clients. The petitioner further indicated that the 
beneficiary oversaw two independent contractors, namely, an installer and a refrigerator technician. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See $ 101(a)(44)(A)(ii) of the Act. 
It is unclear whether a bachelor's degree is required to perform the duties of these employees and 
contractors, such that they could be classified as professionals. Nor has the petitioner shown that any of 
these employees supervise subordinate staff members or manage a clearly defined department or function 
of the petitioner, such that they could be classified as managers or supervisors. In fact, the petitioner 
specifically confirms that the beneficiary does not oversee any subordinate supervisory employees. Thus, 
the petitioner has not shown that the beneficiary's subordinate employees are supervisory, professional, or 
managerial, as required by section 10 1 (a)(44)(A)(ii) of the Act. 
On appeal, counsel asserts that the director improperly ignored the duties of the contractual employees, 
and asserts that their positions and stated duties clearly establish that the beneficiary was relieved from 
performing the installation and maintenance of the equipment. However, the petitioner has neither 
presented evidence to document the existence of these employees nor identified with specificity the 
services these individuals provide. The petitioner claims that the contractual employees are hired on an 
as-needed basis. The petitioner, however, has failed to demonstrate exactly how long and how often they 
perform services for the petitioner. Additionally, the petitioner has not explained how the services of the 
contracted employees obviate the need for the beneficiary to primarily conduct the petitioner's business. 
Without documentary evidence to support its statements, the petitioner does not meet its burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998). 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met 
the requirements of serving in a managerial and executive capacity for L-1 classification even though he 
was the sole employee. Counsel has furnished no evidence to establish that the facts of the instant 
petition are analogous to those in the unpublished decision. While 8 C.F.R. 9 103.3(c) provides that AAO 
EAC 04 103 53388 
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precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. 
Counsel further alleges that the director ignored the duties of the employees in rendering the decision. 
Specifically, counsel asserts that, despite the petitioner's claim that the beneficiary devotes approximately 
37 to 42 hours a week on clearly managerial tasks, the director still concluded that the beneficiary would 
be burdened with non-qualifying tasks most of the time. Upon review, the petitioner states that the 
beneficiary is responsible for implementing marketing policies, attending trade shows, overseeing the 
import of equipment, and overseeing its delivery. However, there is no clear evidence demonstrating the 
work schedules of the contractors. The record indicates that the warehouse manager works five hours per 
day, and the secretary handles general office duties. Absent a clear picture of the day-to-day operations 
of the petitioner, it can only be assumed that in addition to all of the stated duties, the beneficiary orders 
the inventory, the beneficiary generates sales by seeking out clients, and the beneficiary is responsible for 
the general customer service functions. Since it is apparent that there are persons who will install the 
equipment and another person will answer the phone and perform clerical duties, it is only natural to 
presume that the tasks of selling the equipment and generally performing the sales and marketing of the 
company falls upon the beneficiary. It appears, therefore, from the description of duties contained in the 
record that the beneficiary is performing many of the services essential to the operation of the business. 
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 l&N Dec. 593, 604 (Comm. 1988). Since the petitioner has failed to clearly establish 
that the beneficiary will be relieved from engaging in day-to-day, non-qualifying tasks, the AAO cannot 
conclude that he will be employed in a primarily managerial or executive capacity. 
While performing non-qualifying tasks necessary to produce a product or service will not automatically 
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the 
petitioner still has the burden of establishing that the beneficiary is "primarily" performing managerial or 
executive duties. tj 101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" manager 
turns in part on whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial. 
In the present matter, 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 concisely quantify the time the beneficiary spends on them. Although 
the petitioner provided a breakdown of the time the beneficiary allegedly devotes to each of his stated 
duties, other essential tasks, most particularly the sales functions, are not accounted for at all. This failure 
of documentation is important because several of the beneficiary's daily tasks, such as promoting the 
company, implementing market strategies, and attending trade shows, do not fall directly under traditional 
managerial duties as defined in the statute. The claims of the petitioner with regard to the beneficiary's 
duties and those of his subordinates are not fully credible, as they discuss who installs and delivers 
equipment but not who generates the sales and promotes the products. Since sales functions are clearly 
an important aspect of a flourishing business and since the petitioner does not seem to have any 
employees devoted to this aspect of the business, it can only be concluded that it is the beneficiary's 
responsibility. Absent a clear and credible breakdown of the time spent by the beneficiary performing 

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of proof in these proceedings. Matter of SoSfici, 22 I&N Dec. at 165. A petitioner must establish 
ownership and control in order to show a qualifying relationship exists. Stock certificates alone are 
insufficient to establish a qualifying relationship. The corporate stock certificate ledger, stock certificate 
registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also 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 Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986). Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
Accordingly, the petitioner has not established in these proceedings that a qualifying relationship exists 
between the petitioner and the foreign entity, as required by 8 C.F.R. 5 214.2(1)(l)(ii)(A) and (3)(i). For 
this additional reason, the petition must be denied. 
An application or petition that fails to comply with the technical requirements of the law may be denied 
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afyd. 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., 229 F. 
Supp. 2d at 1025. 
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. 5 1361. Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.