dismissed L-1A Case: Retail

'dentiqing data deletd tia 
prevent clearly unwarranted 
invasion ofpenonal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: SRC 04 145 53032 Office: TEXAS SERVICE CENTER Date: /'&R 3 1 2~16 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 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. 
pobert P. Wiemann, D' ctor 
W' 
fl 
dministrative Appeals Office 
SRC 04 145 53032 
Page 2 
DISCUSSION: The Director, Texas 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 seelung to employ the beneficiary as an L-1A intracompany 
transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 
1 10 1 (a)(15)(L). The petitioner is a Florida corporation that claims to be engaged in the retail sale of cellular 
phone accessories, stone products and incense. It operates several shopping mall kiosks. The petitioner claims 
. .. - 
that it is a subsidiary of 
 located in Lima, Peru. The petitioner seeks to employ 
the beneficiary as its vice president for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in a managerial or executive capacity in the United States. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
erred in determining that the beneficiary would not supervise subordinate managerial personnel. Counsel 
submits a brief and an expert opinion letter 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. $ 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 tlie 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 hirnher to perform the intended 
SRC 04 145 53032 
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. " 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The issue in this matter is whether the petitioner established that the beneficiary will be employed in a 
managerial or executive capacit4; under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 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 
I 
(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 ~ct, 8 U.S.C. § 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. 
The nonimmigrant petition was filed on April 27, 2004. In an April 21, 2004 letter appended to the petition, 
the petitioner indicated that as vice president, the beneficiary would be the "executive director of company 
SRC 04 145 53032 
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operations" with responsibility for overseeing sales and administrative managers. The petitioner further 
stated: 
[Slhe will be responsible for managing the entire company operation; she will have the 
ultimate authority to hire and dismiss the employees under her supervision; she will be 
responsible for directing and coordinating the activities of managerial personnel, which are 
involved in the performance of internal day to day operations of the business and she will be 
fully responsible for the financial viability of the company. 
The petitioner stated on Form, 1-129 that it had five employees at the time of filing, and submitted an 
organizational chart depicting the beneficiary reporting to the president and supervising a sales manager and 
an administrative manager, who, respectively, supervise a salesperson and an administrative assistant. The 
petitioner also provided its Florida Form UCT-6, Employer's Quarterly Report, for the fourth quarter of 2003, 
which confirmed wages paid to the employees identified as president, sales manager, and administrative 
manager. 
The petitioner stated in its letter dated April 2 1, 2004 that the company operates "several kiosks" at shopping 
malls in the Jacksonville, Florida area, selling cellphone accessories, stone products for home decoration, and 
incense products. The petitioner submitted current leases for four retail kiosks located in two different 
shopping malls, authorizing the company to sell toys, incense products, and nail care products. 
The director issued a request for additional evidence on May 19,2004, instructing the petitioner to submit: (1) 
a description of the beneficiary's proposed duties in the United States broken down by percentage of time 
spent on each duty on a daily basis; (2) a description of the beneficiary's U.S. subordinates' duties and the 
percentage of time they allocate to each duty; and (3) the petitioner's latest quarterly IRS Form 941, 
Employer's Quarterly Federal Tax Return. 
In a July 20, 2004 response, the petitioner provided the following description of the beneficiary's proposed 
duties: 
To be in charge. of established [sic] of the new market of distribution through subscription 
contracts and to expand commercial activities (50%) 
Direct activities of organization to plan procedures, establish responsibilities, and coordinate 
functions among departqents and sites. (15%) 
Plan and direct activities such as sales promotions, coordinating with other department heads 
as required (20%) 
Develop and implement product marketing strategies including advertising campaigns and 
sales promotions. 
SRC 04 145 53032 
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The petitioner also provided position descriptions for its president, administrative manager, sales manager, 
salesperson and administrative assistant. The petitioner indicated that the beneficiary's immediate 
subordinates would perform the following duties: 
Administrative Manager 
Determine staffing requirements, and interview, hire and train new employees. 20% 
Establish and implement departmental policies, goals, objectives and procedures, conferring 
with board members, organization officials, and staff members as necessary. 
 20% 
Manage staff, preparing work schedules and assigning specific duties 
 20% 
Monitor businesses and agencies to ensure that they efficiently and effectively provide 
needed services while staying within budgetary limits. 20% 
Determine goods and services to be sold, and set prices and credit terms, based on forecasts 
' of customer demand. 20% 
Sales Manager 
Resolve customer complaints regarding sales and service. 
 20% 
Monitor customer preferences to determine focus of sales efforts. 20% 
Determine price schedules and discount rates. 25% 
Review operational records and reports to project sales and determine profitability. 20% 
Represent company at trade association meetings to promote services. 15% 
The AAO notes that the persons identified as sales manager, salesperson and administrative assistant did not 
appear on the petitioner's initial organizational chart. 
The petitioner submitted its IRS Form 941 for the first quarter of 2004, which indicates that the petitioner 
paid $9,347.50 in wages to four employees. The Form 941 does not contain information regarding which 
employees received wages during the quarter or during which months each was employed. 
The director denied the petition on September 1 1,2004, concluding that the petitioner had not established that 
the beneficiary would be employed in a managerial or executive capacity. The director considered the job 
descriptions provided for the beneficiary's subordinates, but found that the duties "do not reflect managerial 
positions." The director observed that the petitioner had not provided evidence that the beneficiary would 
supervise managerial employees', and determined that she would be performing, rather than supervising, the 
day-to-day operations of the U.S. entity. The director further concluded that the petitioner had failed to 
establish that the beneficiary would manage or direct the management of a function. 
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a managerial or 
executive capacity. Counsel references the position descriptions provided for the beneficiary's immediate 
subordinates and asserts: "We believe that these managers will not be involved in day to day operations and 
will manage the company. Thus there would be no reason for the beneficiary to whom these managers must 
respond would be involved in day to day operations.:' 
SRC 04 145 53032 
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In support of this assertion, counsel submits a September 28, 2004 evaluation letter from - 
Ph.D., Associate Dean at Portland State University. Dr.mates that he reviewed the director's September 
1 1, 2004 Notice of Decision, the petitioner's April 21, 2004 letter, and the job duties for the beneficiary and 
, her subordinates, noting that he is "in no position to authenticate any of these documents." ~r.marks 
that the beneficiary's immediate subordinates would be considered managers and professionals based on the 
provided job descriptions, and concludes that the beneficiary's position "is clearly managerial and executive 
in nature." 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 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. 5 214.2(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 non-specific,job description that fails to convey an understanding of 
the actual duties to be performed by the beneficiary. For example, the petitioner stated that the beneficiary 
would devote 50 percent of her time on a daily basis to establishing "a new market of distribution:through 
subscription contracts" and expanding business activities. The petitioner failed to identify what specific tasks 
the beneficiary would perform to accomplish these broad goals, nor did it describe the proposed "new market 
of distribution" or indicate how the beneficiary would "expand" commercial activities. Without additional 
explanation, the AAO cannot determine that this responsibility would entail primarily managerial or executive. 
tasks. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the , 
regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 
1990). 
The petitioner stated that the beneficiary devotes an additional 15 percent of her time to directing activities of 
the organization and to "plan procedures, establish responsibilities, and coordinate functions among 
departments." These duties overlap with those of the president who devotes a total of 35 percent of his time to 
"manage the entire company operation" and "establish internal procedures," as well as with those of the 
beneficiary's subordinate, the administrative manager, who devotes 20 percent of his time to "establish and 
implement departmental policies, goals, objectives." The petitioner has not outlined the specific procedures to 
be established by these three "managerial" employees; and without further clarification regarding the actual 
. duties involved, the AAO cannot conclude that a company with five employees would realistically require 
three managers to engage in managerial or executive-level implementation of policies and procedures and 
company oversight. 
The petitioner indicated that the beneficiary devotes the remaining 35 percent of her time to "plan and direct" 
and "develop and implement" product marketing strategies, advertising campaigns and sales promotions. 
However, the petitioner did not identify what specific efforts the beneficiary would take to perform these 
duties, and none of the beneficiary's subordinates are described as performing duties related to product 
marketing or advertising. The limited explanation and evidence in the record prohibits a conclusion that the 
SRC 04 145 53032 
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beneficiary would perform primarily managerial or executive duties associated with these activities. 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. Tke 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. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108. 
Overall, the job description provided is too vague and general to establish that the beneficiary will be engaged 
in primarily managerial or executive duties. While the job description itself does not include duties that are 
clearly non-qualifying in nature, the AAO cannot determine from the petitioner's description what duties the 
beneficiary performs such that they could be classified as managerial or executive. The MO will not accept a 
vague job description and speculate as to the related managerial and executive job duties. Merely claiming 
that the beneficiary manages the' petitioning company or has a managerial or executive job title is insufficient 
to establish eligibility. 
In addition to being overbroad, the MO finds that the job descriptions provided for the beneficiary and -the 
petitioner's other employees are not credible given the size and nature of the petitioner's business. When 
examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services (CIS) 
reviews the totality of the record, including descriptions of a beneficiary's duties and his or her subordinate 
employees, the' nature of the petitioner's business, the employment and remuneration of employees, and any 
, I 
other facts contributing to a complete understanding of a beneficiary's actual role in a business. The evidence 
must substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement 
' 
in an organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not 
probative and ,will not establish that an organization is sufficiently complex to support an executive or 
manager position. As noted by the director, an individual whose primary duties are those of 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 101(a)(44)(A)(iv) of the Act. 
Further, although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, . - 
professional, or managerial. See- 5 10 1 (a)(44)(A)(ii) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. Based o'n the lease agreements submitted, the 
petitioner operates four shopping mall kiosks engaged in retail sales. The lease agreements require the 
petitioner to operate its kiosks during each shopping center's regular business hours, seven days per week. 
Accordingly, the petitioner requires employees to perform routine retail sales duties at each of its four 
locations, each of which is likely operating at least 60 to 70 hours per week. The petitioner does not claim to 
have any employees engaged in performing retail sales duties. Although the petitioner claims to employ an 
administrative manager, a sales manager, and an administrative assistant, their claimed job titles and duties 
are not credible when considered in the context of the petitioner's business model. Such a conclusion is 
further supported by the extremely vague nature of the job descriptions provided and the significant overlap 
between the various "managers" job duties. The AAO is left to question the validity of the petitioner's claim 
and the beneficiary's claimed duties. 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). If CIS fails to believe that facts stated in the 
SRC 04 145 53032 
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petition are true, then those facts may be rejected. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). 
Accordingly, based on the record in its entirety, it is evident that the beneficiary's four subordinates would 
perform the actual day-to-day tasks of operating the petitioner's four retail locations. The petitioner has not 
provided evidence of an organizational structure sufficient to elevate the beneficiary to a supervisory position 
' that is higher, at most, than that of a first-line supervisor of non-professional employees. Pursuant to sectlon 
101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial under the 
statutory definitions. 
Furthermore, the petitioner did not establish that it had sufficient staff as of the date of filing who would 
 , 
relieve the beneficiary and its other "executive" employee, the company president, from performing the 
routine day-to-day operational duties associated with operating the petitioner's retail kiosks. A company's size 
alone, without taking into account the reasonable needs of the organization, may not be the determining factor 
in denying a visa to a multinational manager or executive. See 5 101(a)(44)(C) of the Act, 8 U.S.C. 
5 1101(a)(44)(C). However, it'is appropriate for CIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees 
 .. 
who would perform the non-managerial or non-executive operations of the.company, or a "shell company" 
that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes 
discrepancies in the record and fails to believe that the facts asserted are true. Id. 
In this case, even assuming that the petitioner's four lower-level employees were employed on a full-time 
 . 
basis, they would only account for approximately 160 work hours per week. The petitioner's four retail kiosks 
would reasonably be expected to be open for business a total of at least 240 hours per week, based on the 
terms of the submitted lease agreements. The record does not establish who would operate the petitioner's 
businesses when the lower-level employees are not available, if not the beneficiary and the company 
president. Collectively, the record as a whole brings into question how much of the beneficiary's time could 
actually be devoted to qualifying managerial or executive duties. 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 Scientolo~ 
Int'l., 19 I&N Dec. 593,604 (~&nm. 1988). 
The AAO acknowledges receipt of the expert opinion letter from Dr. ho reviewed only a limited 
number of documents in the record, and who clearly concedes that he had no basis to authenticate the 
accuracy of the documents submitted to'him. As noted above, ~roncluded based on the information 
provided to him that the beneficiary's subordinates would be employed in managerial or professional 
positions, and the beneficiary herself would serve as a manager or executive. The AAO may, in its discretion, 
use as advisory opinion statements submitted as expert testimony. However, where an opinion is not in 
accord with other information or is in any way questionable, the AAO is not required to accept or may give 
less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). As discussed 
above, the MO concludes, upon review of the record in its entirety,. that the job titles and descriptions 
. . 
SRC 04 145 53032 
Page 9 
provided for the beneficiary's subordinates are artificially inflated and not credible given the nature of the 
petitioner's business. As ~r. conclusions were primarily based on these job titles and descriptions, his 
statement has little probative value in this proceeding. 
For the foregoing reasons, the record is not persuasive in demonstrating that the beneficiary will be employed 
by the petitioner in a primarily managerial or executive capacity. 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. fj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.