dismissed L-1A Case: Retail

U.S. Dcpariment of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
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U. S. Citizenship 
and Immigration 
Services 
File: SRC 03 260 52547 Office: TEXAS SERVICE CENTER Date: AUG 2 € ii:g5 
IN RE: Petitioner: 
Beneficiary 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(L) 
JN BEHALF OF PETITIONER: 
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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 03 260 52547 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a non~mmigrant 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 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 6 llOl(a)(lS)(L). The petitioner is a corporation organized in the State of Florida in 
April 2002 that it is engaging in the operation of a grocery store, gas station and other businesses. The 
petitioner claims that it is the wholly-owned subsidiary of located in Mumbai, 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 establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
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's 
decision is in error and that the petitioner has clearly established that the beneficiary's duties in the U.S. entity 
are executive in nature. 
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 qualifyng 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. 5 214.2(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 posltion that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
SRC 03 260 52547 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(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 organizat~ons 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
At issue in the present matter is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 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 
(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 
SRC 03 260 52547 
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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. 5 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 maklng; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
Ln the L Supplement to Form 1-129, Petition for Nonimmigrant Worker, the petitioner described the 
beneficiary's job duties in the U.S. entity as "[plresident in charge of a company involved in the operation of a 
grocery store and as station, and other retail businesses." The petitioner submitted no other description of the 
beneficiary's job duties at the time the petition was filed. 
On November 13, 2003, the director requested additional evidence. Among other things, the director 
requested (1) information relating to the U.S. entity's staff, including the number of employees, a description 
of the current staffing level setting forth the name, title, duties, qualifications, hours worked per week, and 
date hired for each employee; (2) an organizational chart; (3) copies of Forms W-2 filed for 2002; and (4) a 
description of the beneficiary's duties broken down by percentage of time, inchding a specific description of 
the duties, the number of employees supervised, and how the duties differ from current managers and 
executives within the company. 
In response, counsel for the petitioner submitted the following description of the beneficiary's job duties: 
[The beneficiary] is [plresident of the company. There is no higher individual within the 
entire organization. She directs the management of the organization, establishes the 
company's goals and policies, exercises wide latitude in discretionary decision making, and 
receives no supervision fiom anyone else, since there is no one higher than her in the 
organization. 
[The beneficiary] has numerous duties as president of the company. Her primary function is 
to plan, organize, direct and control the organization's major functions through the company's 
employees. She confers with the store manager and other employees to plan business 
objectives, to develop organizational policies, and to establish responsibilities and procedures 
for attaining objectives. She reviews activity reports and financial statements to determine 
progress and status in attaining objectives and revises objectives and plans in accordance with 
SRC 03 260 52547 
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current conditions. She directs and coordinates formulation of financial and sales programs 
to provide new sources of income, to maximize returns on investments, and to increase sales. 
She works with suppliers and distributors to obtain the best prices for the products that the 
company sells. En addition, she holds regular staff meetings to insure that the above goals are 
realized, and to evaluate staff performance. In that regard, she is ultimately responsible for 
the hiring and firing of all employees of the company. 
The above duties comprise approximately 90% of her weekly work schedule. The exact 
amount of time spent on each duty varies from week to week depending on the items that are 
most important at any particular time. 
Counsel submitted an organizational chart for the U.S. entity, showing the beneficiary supervising a manager, 
who in turn supervises two clerks. Counsel also provided job descriptions for the store manager and the stock 
clerk, who are full-time employees, and Forms W-2 for the year 2003 for the beneficiary and the two full-time 
employees. Counsel indicated that because the remaining clerk position is filled on an "as needed" basis, 
there is no Form W-2 for any person in that position. 
On February 18, 2004, the director denied the petition. The director determined that the record does not 
convincingly demonstrate that the petitioner has any qualifying employees. The director concluded that the 
beneficiary would be carrying out the day-to-day operations of the U.S. entity rather than supervising those 
operations. The director further found that the record is not persuasive that, as of the filing date of the 
petition, the U.S. entity had grown to the point where it could remunerate the beneficiary, or where the 
beneficiary would function at a senior leveI within an organizational hierarchy or with respect to a function. 
Consequently, the director found the petitioner has not sufficiently demonstrated that the beneficiary would 
be employed in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the director's decision is contrary to the law and facts and 
that the petrtioner has clearly established that the beneficiary's duties in the U.S. entity are executive in 
nature. In his appeal brief, counsel argues that the director has misstated or overlooked some of the evidence 
presented, particularly with respect to the petitioner's staff and the company's income. Counsel restates some 
of the beneficiary's job duties and argues that the beneficiary "clearly and definitively meets each of the four 
criteria to qualify as an executive." 
On reviewing the petition and the evidence, the AA0 finds that the evidence of record is insufficient to 
establish that the beneficiary would be employed by the U.S. entity in a 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. $ 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. The petitioner has provided a vague and nonspecific 
description of the beneficiary's duties that fails to demonstrate what the beneficiary does on a day-to-day 
basis. For example, the petitioner states that the beneficiary "confers with the store manager and other 
employees to plan business objectives, to develop organizational policies, and to establish responsibilities and 
procedures for attaining objectives," "reviews activity reports and financial statements to determine progress 
SRC 03 260 52547 
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and status in attaining objectives and revises objectives and plans in accordance with current conditions," and 
"directs and coordinates formulation of financial and sales programs." The petitioner did not, however, define 
the objectives and policies in question, or clarify who actually carries out the "responsibilities and procedures 
for attaining objectives," or prepares the "activity reports and financial statements" the beneficiary 
purportedly reviews, or formulates "the financial and sales programs" the beneficiary is said to direct and 
coordinate. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Crafl of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(B) of the Act, 8 U.S.C. 5 
1101(a)(44)(B). For instance, the petitioner stated that the beneficiary "directs the management of the 
organization, establishes the company's goals and policies, exercises wide latitude in discretionary decision 
making, and receives no supervision from anyone else, since there is no one higher than her in the 
organization." However, conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient to meet the petitioner's burden of proof. 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. at 1108: A?r 
Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In addition, the petitioner describes the beneficiary as "work[ing] with suppliers and distributors to obtain the 
best prices for the products that the company sells." Negotiating with vendors is a task necessary to provide 
the company's service or product and is not considered managerial or executive in nature. See Matter of 
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Furthermore, as noted earlier, even 
though the petitioner claim that the beneficiary "reviews activity reports and financial statements" and 
"directs and coordinates formulation of financial and sales programs," it does not appear that anyone else on 
the petitioner's staff actually prepares the "activity reports and financial statements" the beneficiary 
purportedly reviews or formulates "the financial and sales programs" the beneficiary is said to direct and 
coordinate. If the beneficiary herself is preparing the reports and formulating sales programs, rather than 
reviewing, directing and coordinating these functions as the petitioner claimed, 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. at 604. Moreover, if the beneficiary's involvement in these functions is not as the 
petitioner claimed, the AAO is lefi 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). 
Furthermore, the definitions of executive and managerial capacity have two parts. First, the petitioner must 
show that the benefic~ary perfoms the high level responsibilities that are specified in the definitions. Second, 
the petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
SRC 03 260 52547 
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spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). The AAO notes that the director requested that the 
petitioner provides a description of the beneficiary's duties broken down by percentage of time. In response, 
the petitioner describes the beneficiary's duties and stated generally that the described duties "comprise 
approximately 90% of her weekly work schedule." That response fails to quantify the time the beneficiary 
spends on each duty, as the director requested. This failure of documentation is important because, as 
discussed above, several of the beneficiary's daily tasks do not fall directly under traditional managerial 
duties as defined in the statute. Thus, based on the current record, the AAO is unable to determine whether 
the claimed managerial duties constitute the majority of the beneficiary's duties, or whether the beneficiary 
primarily performs non-managerial administrative or operational duties. The petitioner's description of the 
beneficiary's job duties does not establish what proportion of the beneficiary's duties is executive or 
managerial in nature, and what proportion is not. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. 
Cir. 1991). Moreover, the statement that all of the duties described comprise 90% of the beneficiary's weekly 
work schedule, without a further breakdown, is not responsive to the director's request. Failure to provide 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
9 103.2(b)(14). 
In light of the foregoing, the AAO concludes that the petitioner has not established that the beneficiary would 
be employed in the United States in a primarily executive or managerial capacity, as required by 8 C.F.R. $ 
2 14.2(1)(3). 
Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner has 
been engaging in the regular, systematic and continuous provision of goods and/or services in the United 
States for the entire year prior to filing the petitioner to extend the beneficiary's status. Pursuant to the 
regulation at 8 C.F.R. $ 214.2(1)(14)(ii)(B), the petitioner is expected to submit evidence that it has been 
doing business since the date of the approval of the initial petition. In this instance, the initial petition for the 
new office was approved for the period from September 27, 2002 through September 27, 2003. However, in 
response to the director's request for a copy of the 2002 U.S. income tax return for the U.S. entity, counsel for 
the petitioner responded that the petitioner did not have a tax return for the year 2002 as the U.S. business did 
not begin operations until September 1, 2003. The petitioner submitted no other evidence that it has been 
doing business since the approval of the initial petition. Thus, the petitioner simply has failed to satisfy the 
regulatory requirement set forth in 8 C.F.R. 5 214.2(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. ~nited'sta~es, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 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 the plaintiff shows that the AAO abused its discretion with respect to all of the 
AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
SRC 03 260 52547 
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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. Accordingly, the director's decision wilI be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.