dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: SRC 02 246 54977 Office: TEXAS SERVICE CENTER 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
LNSTRUCTIONS: 
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 Offi 
SRC 02 246 54977 
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 seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 1 0 1 (a)(15 )(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the 
State of Texas and is a "convenience store," engaged in the retail sale of food and beverage products. The 
petitioner claims that it is the affiliate of Universal Oil Company, located in Hyderabad, India. The 
beneficiary was initially granted a one-year period of stay to open a new office in the United States and the 
petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not demonstrate that (1) the beneficiary 
would be employed in the United States in a primarily managerial or executive capacity and (2) the company 
was well enough established to support an executive or managerial position. 
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 company is 
established and that its operations and staffing continue to grow. In support of this assertion, the petitioner 
submits additional evidence. 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(l5 )(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 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 
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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. $ 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)(I)(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 first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S .C. $ 1 10 1 (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 
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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. $ 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. 
In the initial petition, the petitioner described the beneficiary's job duties as follows: 
[The beneficiary] is the executive responsible for overseeing the development of Universal 
Oil Company's U.S. affiliate. He is responsible for managing the day to day operations of 
Tillu Inc. [The beneficiary] supervises all financial and administrative operations for the 
company, over which he exercises complete discretionary authority. His duties include 
supervising the development and implementation of the company's marketing strategies as 
well as the recruitment and training of the staff of the U.S. office. 
On August 23, 2002, the director requested additional evidence. Specifically, the director requested the 
following: (I) photographs of the U.S. entity's premises; (2) an organizational chart for the U.S. entity, 
including the names, titles, employment status (fulltime or part-time), and start dates for each employee; (3) 
additional evidence that the beneficiary is to be etnployed in an executive or managerial position, including 
information on subordinates and their job titles and duties or the essential function the beneficiary will 
manage; and (4) evidence that the foreign entity has been doing business for the past year, including corporate 
tax returns, financial statements, invoices, bills of sale, bills of lading, shipping receipts, etc. 
In response, counsel for the petitioner submitted: (1) a letter dated November 12, 2002; (2) the requested 
photographs; (3) an organizational chart for both the U.S. and foreign entity; and (4) tax documents, financial 
statements and invoices for the foreign entity. In its letter dated November 12, 2002, counsel provided the 
following additional details on the job duties of the beneficiary: 
The [bleneficiary serves as [plresident of Tillu, Inc., U.S. subsidiary of Universal Oil 
Company. The duties performed by the benttficiary are executive. As a top executive, [the 
beneficiary] is tasked with exploring the overall investment climate of the U.S. market. His 
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time is devoted to negotiating investments, establishing diversified business interests and 
overseeing the staff he has selected to actually perform the daily operations. [The 
beneficiary] has ultimate responsibility for the continued success of this business. 
In addition, in response to the request for information on the subordinates of the beneficiary, counsel states 
that "[The petitioner] currently employs one full-time cashier and one part-time clerk. [The beneficiary's] 
staff perform the daily operating duties of the business including sale.of merchandise, response to customer 
inquiries and inventory. [The beneficiary] oversees the issues relating to the payroll, hiring and firing." 
On November 22, 2002, the director denied the petition. The director determined that, due to the structure of 
the company, the beneficiary would have to perform the day-to-day, non-managerial and non-executive duties 
required to run the company. Therefore, absent clear evidence by the petitioner that the beneficiary will be 
primarily managing the day-to-day operations instead of carrying them out, the director concluded that the 
beneficiary was not and will not be employed primarily in a managerial or executive capacity for the U.S. 
company. 
On appeal, counsel for the petitioner does not directly address the issue of whether the beneficiary will be 
primarily employed in a managerial or executive capacity. Instead, counsel simply asserts that the U.S. entity 
is now established, its operations and staff continue to increase, and "the beneficiary provides overall 
supervision over the employees." 
Upon review, counsel's assertions are not persuasive. 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. 
242()(3)(i). The petitioner's description of the job duties must clearly describe the duties to be 
perfonned by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
On review, the petitioner has provided only vague and nonspecific descriptions of the beneficiary's duties that 
fail to demonstrate what the beneficiary does on a day-to-day basis. For instance, the petitioner states in its 
August 9, 2002 cover letter that the beneficiary's job duties include "managing the day to day operations of 
[the petitioner]," "supervis[ing] all financial and administrative operations for the company," "supervising the 
development and implementation of the company's marketing strategies," and "[supervising] the recruitment 
and training of the staff.'' On appeal, the petitioner describes the beneficiary's job duties as including 
"exploring the overall investment climate," "negotiating investments, establishing diversified business 
interests, and overseeing the staff he has selected." The petitioner did not, however, provide: (1) what 
specific day-to-day operations the beneficiary will manage; (2) evidence, including job titles and duties, of the 
professional personnel he has hired and supervised to handle the financial operations as well as the marketing 
strategies for the company; or (3) how the other duties described are managerial or executive as defined in the 
Act. See Section 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 3 1101(a)(44)(A) and (B). Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. See Matter of Treasure Craft of Calgornia, 14 l&N Dec. 190 (Reg. Comm. 1972). 
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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, 1108 (E.D.N.Y. 1989), 905 F. 2d 41 (2d. 
Cir. 1990). 
It should also be noted that, even though the petitioner claims that the beneficiary supervises the petitioner's 
financial operations and marketing strategies, it does not provide evidence of anyone on its staff to actually 
perform the financial and marketing functions. Specifically, based on the evidence of record before the 
director, it appears that the petitioner only had two employees, a clerk and a cashier. Although the petitioner 
claims to have employed a part-time accountant, it did not submit evidence that the accountant was ever on 
the payroll of the U.S. entity until appeal. Even if the evidence submitted on appeal showed that the 
accountant was hired prior to the date the petition was filed, which it does not, the petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition; 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). 
Thus, either the beneficiary himself is performing the financial and marketing functions, or he does not 
actually supervise the financial and marketing functions as claimed by the petitioner. In either case, the AAO 
is left to question the validity of the petitioner's claim and the remainder of 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 the beneficiary is performing the financial and marketing functions, the AAO notes that 
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 of Scientology 
International, 19 I&N Dec. 593,604 (Comm. 1988). 
It is recognized that even if the beneficiary is responsible for performing the financial and marketing 
operations of the company, provided the majority of his duties remained managerial or executive, he could 
still qualify as a manager or executive under the act. However, the petitioner not only fails to provide detailed 
job duties for the sponsored position but also fails to specifically document what proportion of the 
beneficiary's duties would be managerial or executive functions and what proportion would be non- 
managerial or non-executive. As indicated above, the petitioner lists duties of the beneficiary, which could be 
deemed as possibly being executive or managerial, but fails to quantify the time the beneficiary spends on 
them. This failure is important because some of the beneficiary's apparent tasks, such as financial operations, 
marketing, and investment negotiations, do not fall directly under traditional managerial duties as defined in 
the statute. For this reason, the AAO cannot further determine whether the beneficiary is primarily 
performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). 
Moreover, although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does 
not establish that the subordinate staff is composed of supervisory, professional, or managerial employees. 
See section IOl(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
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professional. Section 10 1(a)(44)(A)(iv) of the Act. Because the beneficiary is supervising a staff of non- 
professional, non-supervisory, and non-managerial employees (a clerk and a cashier), the beneficiary cannot 
be deemed to be primarily acting in a managerial capacity. 
Accordingly, 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. 5 214.2(1)(3). 
The second issue in this proceeding is whether the business will support an executive or managerial position. 
As previously discussed, the record is not persuasive in demonstrating that the beneficiary has been or will be 
employed in a primarily managerial or executive capacity. On appeal, however, counsel indicates that the 
petitioner plans to hire additional employees in the future. Again, the petitioner must establish eligibility at 
the time of filing the nonimmigrant visa petition. 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). 
Furthermore, 8 C.F.R. fj 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 position. It should also be noted for the 
record that the beneficiary appears to have been in the United States in B-1 nonimmigrant visitor status from 
October 1, 2000 until his change of status on August 14, 2001 to L-1A classification. The beneficiary 
apparently used this time to set up the U.S. entity and begin its operations. Even with this additional time, the 
petitioner was still not sufficiently operational by August 2002, when the petition was filed. There is no 
provision in CIS regulations that allows for an extension of the one-year period, which in this case was almost 
a two-year period of time. 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. 
Beyond the decision of the director, it should be noted for the record that the 2001 tax return (Form 1120s) 
for the U.S. entity claims a deduction of $20,000.00 for compensation or dividends paid to the beneficiary. 
While this appears to be income instead of dividends for tax purposes and while this matches the beneficiary's 
proffered wage of $20,000.00, it raises the question of unlawful employment during the time the beneficiary 
was in B-1 status. In particular, the petitioner has indicated that the beneficiary's $20,000.00 wage is paid on 
an annual basis, which one would assume is paid in equal installments throughout the year. However, for 
2001 the beneficiary was only authorized to work for the petitioner starting from August 14,2001 and, thus, it 
appears the beneficiary received income from the petitioner during the time he was in B-I status. Even if the 
beneficiary claims the compensation was not income but was dividends or even a reimbursement for 
contributions made to the petitioner, it will then raise the issue of whether the petitioner actually employed the 
beneficiary when he was in L-I A status. In either case, there could be additional grounds for the denial of the 
petition to extend the L-l A status of the beneficiary due to a violation of or failure to maintain status. 
In addition, with regard to the petitioner's U.S. Income Tax Return for an S Corporation (Form 1120S), it 
should be noted that to qualify as a subchapter S corporation a corporation's shareholders must be individuals, 
estates, certain trusts, or certain tax-exempt organizations, and the corporation may not have any non-resident 
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alien shareholders. See Internal Revenue Code, 3 1361(b)(l), 26 U.S.C. $ 1361(b)(l). A corporation is not 
eligible to elect S corporation status if any shareholder is a non-resident alien. Id. In this case the evidence 
presented shows the sole shareholder of the U.S. entity to be the beneficiary. While $ 7701(b)(l)(A)(iii) of 
the Internal Revenue Code did provide the beneficiary with the option of electing to be a resident alien at the 
time the U.S. entity was incorporated on November 13, 2000, no evidence has been presented, such as the 
beneficiary's individual 2001 tax return, to prove that he was a resident alien for tax purposes at the time the 
U.S. entity was formed. Absent this evidence, it appears that the petitioner may not have properly elected S 
Corporation status, which would raise serious questions regarding the consistency and the credibility of the 
facts asserted. As previously indicated, 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). 
Beyond the decision of the director, the record is not persuasive in demonstrating that the petitioner has 
secured sufficient physical premises to commence "doing business" in the United States. Specifically, the 
director requested in its letter dated August 23, 2002 that the petitioner submit photographs of the premises of 
the U.S. entity, which included its address as well as a business sign. In response, however, the petitioner 
submitted photographs showing what appears to be a paper print out of the U.S. entity's name and address, 
which is being held to the building by a person hiding behind the roofline. In this situation, the CIS must 
question the purported permanency of the enterprise where the petitioner fails to even invest in a more 
permanent business sign. As the appeal will be dismissed, this issue need not be examined further. 
Finally, it should also be noted for the record that the petition in this case was filed on August 14, 2002, one 
day after the expiration of the L-1A status of the beneficiary. According to 8 C.F.R. § 214.2(1)(14)(i), "[a] 
petition extension may be filed only if the validity of the original petition has not expired." For this reason, 
the director may not grant the requested extension of stay. 
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. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.