dismissed L-1A Case: Retail

U.S. Department of llomcland Security 
20 Mass A\e. I\! W . Rm. A3012 
Washmgton. DC 20519 
U. S. Citizenship 
and Immigration 
Services 
J i '1' 
1 * 
*,:-*#'* ! 
File: Office: VERMONT SERVICE CENTER Date: y ~y : Cj 
Petit~on: Pet~tlon for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immlgratlon 
and Nat~onallty Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
This 1s the decision of the Adm~nrstratlve Appeals Office in your case. All documents have been returned to 
the office that originally declded your case. Any further 1nqu11-y must be made to that office. 
Robert P. W~emann, D~rect /2H 
Administrat~ve Appeals Office 
n 
m Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petltion for a nonimmigrant visa. The 
matter IS now before the Adm~nistrative Appeals Office (AAO) on appeal. The AAO will dlsmiss the appeal. 
The petitloner filed thls nonlmmlgrant petltion seeklng to extend the employment of its president as an 1,-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(1,) of the Immigration and Nat~onality 
Act (the Act), 8 U.S C. 8 1101(a)(15)(L). The petitioner IS a corporation organ~zed In the State of Maryland 
that is engaged in the retall busmess. The petitioner cla~ms that it is the subs~diary ofocated 
In Lagos, Nigena The beneficiary was in~tially granted a one-year penod of stay to open a new office in the 
United States and was subsequently granted a two-year extens~on of stay. The petitioner now seeks to extend 
the beneficiary's stay for an additional three years 
The d~rector denled the petition conclud~ng that the petttioner did not establ~sh that the beneficiary has been 
and will continue to be employed m the Unlted States In a pnmarily managerla1 or executive capacity 
The petltioner 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. the petitioner restates the beneficiary's duties and 
concludes that they are clearly both managerial and executive in nature. 
To establ~sh el~gtbllity for the L-1 nonlmm~grant vlsa classification, the petitioner must meet the criterla 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
benefic~ary in a qualifying managenat or executive capaclty, or In a specialized knowledge capacity, for one 
continuous year wlth~n three years preceding the beneficiary's application for admission into the Unlted 
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 subs~d~ary or affiliate thereof In a managerial. executive. or 
specialized knowledge capaclty. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an lnd~vidual petltlon 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 definedin paragraph (l)(l)(ii)(G) of this section. 
(i~) Ev~dence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity. including a detailed description of the servlccs to be performed. 
' It is notcd that the petition and the appeal were prepared by an Immigration scrvlce provider. Although the 
petltion is accompanied by a Form G-28, Notice of Entry of Appearance by an Attorney or Representative. 
the immigration service provlder has not established that it 1s a llcenscd attorney or an accredited 
representative authorized to undertake representations on the petitioner's behalf See 8 C F K 292.1 
Accord~ngly, the assertions of the ~mmigration servlce provider will not be considered in this proceeding. 
(111) Evidence that the allen has at least one continuous year of full time employment 
abroad wlth a qualifying organization wlthln the three years preced~ng the filing of 
the petition. 
(IV) Evidence that the alien's prlor year of employment abroad was In a positlon that was 
managerial, executive or Involved spec~al~zed knowledge and that the alten's prlor 
educat~on. tra~nmg, and employment qual~fies h~mlher to perform the Intended 
services In the Un~ted States; however, the work In the Unlted States need not be the 
same work which the alien performed abroad. 
The pnmary Issue in this matter 1s whether the beneficiary has been and will continue to be employed by the 
llnlted States entlty in a primarily managerlal or executive capaclty. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), defines the term "managerial capacity" as an 
ass~gnment with~n an organizatlon In whrch the employee primarily: 
(I) manages the organrzation, or a department. subdlvlslon. function, or component of 
the organization; 
(11) supervises and controls the work of other supervisory. professional, or managerlal 
employees, or manages an essential functlon within the organ~zat~on, or a department 
or subd~visron of the organlzation; 
(~u) 1f another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actlons (such as 
promotion and leave author~zat~on), or ~f no other employee IS directly supenised, 
functions at a senior level wlthin the organizat~onal hierarchy or wlth respect to the 
function managed: and 
(iv) exercises discret~on over the day to day operations of the activity or functlon for 
whlch the employee has authonty A first llne supervisor is not considered to be 
actlng In a managerial capaclty merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are profess~onal. 
Sect~on 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) drrects the management of the organizatlon or a major component or functlon of the 
organ1 zation; 
(ti) establishes the goals and policles of the organizatlon. component, or function: 
(111) exercises wide latrtude tn discretionary deciston maklng; and 
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(iv) receives only general supervision or direction from higher level executives, the board 
of d~rectors, or stockholders of the organlzatlon. 
In a letter dated April 16, 2003, the petltioner discussed the beneficiary's quallficat~ons and his role In the U.S. 
company. Specifically, the beneficlary's duties were descnbed as follows. 
[The beneficiary] has been successful in stimulating and directing [the petlt~oner] as ~t 
continues its expansion in the U.S. market. the business in 
Washington, D.C., which is also the site for 
has been actively involved in all major 
and has been ~nstrumental in shaping both the market~ng and sales dlrectlon of the company 
Earlier In the embryon~c stages of [the petltioner] much of h~s time was spent meeting with 
representatives of varlous regulatory bodies to ensure that the company 1s In compliance w~th 
the licensing requ~rements. [The beneficiary] spends much of his tlme now meetlng 
prospects and cult~vat~ng bus~ness for [the petit~oner], a cntical aspect of the bus~ness He 
also spends a cons~derable amount of hls tlme and energy analyzing market condit~ons for 
increased profitabil~ty, establ~sh~ng llalson w~th the local communltles to establish a cllent 
base. develop~ng the personnel (management and supervisory employees) and pollcles for the 
U.S. buslness. He has selected and hired the line management to conduct the day-to-day 
sales and related dut~es. He has reviewed the exlstlng credlt programs to ensure that rlsks are 
adequately covered. Th~s st111 requlres target management definltlon. nsk acceptance cnterla, 
and detailed financ~al analysis. ['The benefic~ary] has succeeded In placlng (and is st111 
training) personnel to ensure that this aspect of the busmess 1s delegated approprlately. IIe 
st111 has market risk management responslbillt~es and prlce risk In the normal course of 
business He has put a process In place to control exposures and retain appropriate decls~on- 
maklng pollc~es. 
The petitioner Indicated on Form 1-129 that it had one employee at the time of liling. 
F~ndlng the ~nltial evidence lnsuffic~ent, the dlrector issued a request for addlt~onal ev~dence on May 23. 
2003. In the deta~led request, the d~rector requested an extensive list of documents, and specifically requested 
a comprehensive description of the benefic~ary's duties and evidence demonstrat~ng that he functioned at a 
qenlor level In the organl~atlonal hierarchy of the petltloner. In a response dated August 15. 2003. the 
petitloner subm~tted a detailed response which presented the following description of the beneticlary's 
pos~ tion 
The beneliclary's dut~es are as follows: to direct and coordinate the activities of [the 
petitloner], to dlrect and coord~nate the actlvitles of formulate 
and adm~nister the actlv~t~es of these entitles; develop long-range strateglc goals [and] 
objectives for both businesses; coordinate and liaise on behalf of [the petitioner] in the USA 
and abroad; develop potentials for [the petitioner's] interests in other industries. Beneficiary 
also ~mplemcnts policies on a day to day basis, oversees the marketing, sales, purchasing and 
finance for the busmesses. We have enclosed copies of 2 letters wntten earl~er and regarding 
the duties and funct~ons of the benefic~ary at h~s present posltlon. Those duties and functions 
remaln pract~cally the same then as now. 
Furthermore, with regard to the percentage of tlme the benefic~ary devotes to each duty, the petitloner 
ind~cates that "[llt is safe to say that the benefic~ary spends more that 75% of h~s t~me performing executive 
funct~ons: meeting cl~ents, negot~ating contracts and revlewmg buslness prospects for the business " The 
petitloner further stated that the beneficiary superv~sed a small staff, including one permanent employee, who 
served as general manager, and four part-time dr~vers. 
On October 23, 2003 the dlrector denled the pet~tlon. The d~rector determined that the evidence in the record, 
desplte the petlt~oner's detailed response to the request for evidence, faded to establ~sh that the beneficiary 
functioned at a senior level within the organization. Spec~fically, the dlrector concluded that the evldence was 
lnsuffic~ent to show that the benefic~ary supervised professional, managerial or supervlsory employees or that 
he was pr~marlly engaged In managerial or executlve activ~ties In addition, the d~rector noted that the 
benefic~ary appeared to be the only full tlme employee of the petitloner, and thus concluded that he was most 
likely performlng the tasks necessary to prov~de the goods and servlces to the petitloner's customers. 
On appeal, the petltloner clalrns that the benefic~ary's dut~es are execut~ve In nature, and that the descr~pt~on 
of dutles prev~ously provided was varied and detailed, and not vague as cla~med by the director Add~t~onally, 
the petltloner contends that the beneficlary supervises the work of other supervlsory employees w~thln the two 
compantes, and states that h~s t~me 1s spent "in overall delegat~on of authority of the managers and 
supervisors" of both of the etitioner's companies. The petitioner further states that it employs two part-time 
employees, namely nd as well as "a full-set oiemployees other than 
the petitioner" who provide sales and services to its clients. No,additional documentary evidence supporting 
these contentions was submitted. 
The AAO, upon review of the record of proceeding, concurs w~th the director's findlng. Spec~fically, upon 
revlew of the benefic~ary's stated dut~es and the ev~dence In the record, ~t appears that the benefic~ary wlll not 
be acting in a prlmarlly managerla1 or executlvc capacity. 
When examining the executlve or manager~al capac~ty of the beneficiary, the AAO w~ll look first to the 
pet~tloner's description of the job dut~es. See 8 C.F.R. 214.2(1)(3)(11) Whether the beneficlary 1s a manager 
or executlve employee turns on whether the pet~tloner has sustalncd ~ts burden of provlng that her dut~es are 
"pnmarily" managerial or executive. See sectlons 101(a)(44)(A) and (B) of the Act. I-Iere, the petltloner 
clalms that the benefic~ary's dut~es are almost exclusively manager~al and executlve, yet the l~st of dut~es 
prov~ded In response to the director's request for evldence lncludes a s~gn~ficant number of non-qualifying 
tasks. For example, the petltloner states In ~ts response to the request for evldence that the benefic~ary spends 
the majority of h~s tlme "mectlng cl~ents, negotlatlng contracts, and revrewing business prospects tbr the 
busmess " In add~tion, the pet~tloncr cla~ms that the beneficlary also corresponds w~th banks, cred~tors, and 
other financ~al partles. and occasionally vis~ts the major automobtle auction sltes In the Mid-Atlant~c region of 
the lJnited States. Clearly, the benefic~ary 1s performlng market~ng and sales-related servlces that will create 
a bass for market~ng the petitioner's product m the United States. An employee who pr~mar~ly performs the 
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tasks necessary to produce a product or to prov~de services is not considered to be employed in a managerlal 
or executive capac~ty. Matter ofClzurck Scier~lology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
Slnce by definit~on, ~t does not appear the statement of dunes provlded qualifies the benefic~ary for the benefit 
sought, the AAO wlll alternatively look for the benefic~ary's qualifications as a supervisor In a manager~al 
capacity. The petltloner claims that the beneficiary supervises the other employees in the U.S company. 
Although the benefic~ary is not requ~red to supervlse personnel, ~f ~t 1s claimed that his duties involve 
supervlslng employees, the petitioner must establ~sh that the subordlnate employees are superulsory, 
professional, or managenal See tj 10 1 (a)(44)(A)(il) of the Act 
Desplte the d~rector's speclfic request, the qual~ficat~ons of each of the alleged subordlnate posltlons were not 
provided by the pet~t~oner, nor was a descnpt~on of the~r weekly duties prov~ded. Any fallure to subm~t 
requested ev~dence that precludes a mater~al line of lnqulry shall be grounds for denylng the petition. 
8 C.F.R. (i 103.2(b)(14). Thus, the petlt~oner has not established that these employees possess or requlre an 
advanced degree, such that they could be classified as professionals. Nor has the petitioner shown that e~ther 
of these employees supervlse subordinate staff members or manage a clearly defined department or function 
of the petltloner, such that they could be classified as managers or supervisors Thus, the petltioner has-not 
shown that the bencfic~ary's subordlnate employees are supervlsory, profess~onal. or managenal, as requ~red 
by sectlon 10 l(a)(44)(A)(11) of the Act. 
On appeal, the petltloner reasserts that the benefic~ary In fact oversees supervlsory employees. As stated 
above, however. the petltioner has fa~led to prov~de any deta~ls w~th regard to these employees and the~r t~tle 
and job dut~es. The only positions ~dentlfied by name were those of the general manager and the dr~vers. 
Most ~mportantly, however, the petitioner has fa~led to provide any documentary evidence that ~t actually 
employs these alleged subordmates. The pet~tloner submitted a W-2 form for 2002 for its general manager, 
dernonstratmg wages pa~d In the amount of S5,820.80. No add~t~onal documentation 
has been provided whlch would indicate that the pet~t~oner In fact employs other employees under the 
beneficlary. Gong on record without support~ng documentary ev~dence IS not sufficient for purposes of 
meetlng the burden of proof in these proceedings. Mcrtier of Soffici, 22 I&N Dec. 158. 165 (Comm. 1998) 
(citlng Matter of Treasure Crafi of Calrfornln, 14 I&N Dec. 190 (Reg. Comm. 1972)). W~thout pay stubs, 
quarterly tax returns, or cancelled paychecks, the AAO cannot conclude that the pet~tioner in fact employs a 
subordinate staff. 
Therefore, the record as it currently stands indlcatcs that the petltioner defimtely employed the beneficiary 
and one general manager, who appeared to be a part-tlme cmployee based on the low wages reflected by his 
W-2 form Slnce the pet~t~oner cla~ms to own and operate two dishnct busmesses but has failed to document 
the presence of other employees, it stands to reason that the beneficlary performs the majonty of the day-to- 
day tasks essent~al to the petitioner's busmess operations. As prevtously discussed. an employee who 
primarily performs the tasks necessary to produce a product or to prov~de servlces is not conbidered to be 
employed In a managerlal or execut~ve capacity. Matter of Clzurch Sclentolog?~ 1)lrernntronul. 19 l&N Dec at 
604. 
m Page 7 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. For this reason, the petition may not be approved. 
Beyond the findings in the previous decision, the remaining issue in this proceeding is whether the petitioner 
has established that a qualifying relationship exists' between the petitioning entity and a foreign. entity 
pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). On Form 1-129, the petitioner claims that the U.S. entity is the 
subsidiary of the foreign entity. In the documentation accompanying the petition, the petitioner claims that 
the beneficiary is the sole owner of both the U.S. entity and the foreign entity. However, the petitioner's 
Form 1120, U.S. Corporation Tax Return, Schedule K, indicates that no one individual or corporation owned 
50% or more of the corporation's voting stock. In addition, the line requesting the number of shareholders is 
left blank. No additional documentation of ownership, such as stock certificates, ledger, or minutes of 
relevant shareholder meetings have been provided to corroborate the petitioner's,claims. 
Generally, stock certificates, the corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the mrnutes of relevant annual shareholder meetings must be exam~ned 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 petition~ng company must disclose all agreements relating to the 
voting of shares, the d~stribution of profit, the management and d~rectlon of the subsldlary, and any other 
factor affecting actual control of the entity. See Matter of Stemens Medical S~:~rems. Inc , 19 I&N Dec. 362 
(BIA 1986). W~thout full disclosure of all relevant documents, CIS IS unable to determine the elements of 
ownership and control. In thls matter. there IS no documentary ev~dence'supportmg the petitioner's claim that 
a qualifying relationsh~p exists between to the two entitles. Going on record w~thout supporting documentary 
evidence is not sufficient for purposes of meet~ng the burden of proof in these proceedings. Matter of Sojj?cr, 
22 I&N Dec. at 165 (citing Mutter of Treasure Crafl of Cnlfornru, 14 I&N Dec. 190 (Reg. Comm. 1972)) 
For th~s additional reason, the petltion may not be approved. 
Fmally, in the event that the beneficiary is actually the sole owner of both companles. ~t remains to be 
determined that the benefic~ary's serv~ces are for a temporary penod The regulation at 8 C.F R. 
Q 214.2(1)(3)(~11) states that ~f the benefic~ary IS an owner or major stockholder of the company, the petit~on 
inust be accompanied by evidence that the benefic~ary's serv~ces are to be used for a temporary penod and 
that the benefic~ary w~ll be transferred to an assignment abroad upon the completion of the temporary servlces 
in the Un~ted States. In the absence of persuasive evidence, ~t cannot be concluded that the beneficiary's 
servrces are to be used temporanly or that he wrll be transferred to an assimment abroad upon completion of 
h~s servlces In the Unlted States. 
An appl~cat~on or pet~t~on that falls to comply with the technical requirements of the law may be denied by 
the AAO even ~f the Serv~ce Center does not identrfy all of the grounds for denial in the in~tial decision. SCe 
Spencer Enterprzre~, Inc. v. Unlted States, 229 F. Supp. 2d 1025, 1043 (E.D Cal 2001), ~ffd 345 F.3d 683 
(9th Clr. 2003); see also Dor v. INS. 891 E.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO revlews 
appeals on a de novo bas~s) 
In vlsa pet~t~on proceedings. the burden of provlng ellpblllty for the benefit sought rcmalns entirely whh the 
pet~tloner. Sectlon 291 of the Act, 8 U.S.C. $ 1361. Here. that burden has not been met. Accordingly. the 
d~rector's dec~slon will be affirmed and the petition w~ll be denled. 
ORDER: The appeal is dismissed.