dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
FILE: 
 SRC 01 158 5 153 1 
 Office: TEXAS SERVICE CENTER 
 Date: JUL 0 7 2m6 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)(15)(L) 
ON 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. 
1 Administrative ~ppeals Office 
4SRC 01 158 51531 
Page 2 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, Texas Service Center. The 
petitioner filed a subsequent appeal. The Administrative Appeals Office (AAO) rejected the appeal as 
untimely filed. The matter is now before the AAO on a motion to reconsider. Upon review, the appeal 
was correctly rejected as untimely filed since the appeal was received by U.S. Citizenship and 
Immigration Services (CIS) on Monday, March 11, 2002, which was 36 days after the date of the 
decision. See 8 CFR 9 1 .l(h). Thus, the motion will be dismissed. 
On February 4, 2002, the acting director denied the petition for L-1 nonimrnigrant classification. On 
March 11,2002, the petitioner's counsel filed Form I-290B and appealed the decision of the director. On 
April 25, 2003, the AAO rejected the appeal as untimely filed. As a result, on May 23, 2003, the 
petitioner's counsel filed a motion for reconsideration and claimed that the appeal was timely because the 
appeal was filed on Saturday, March 9, 2002 which was 33 days from the date of the decision. This 
assertion is erroneous since March 9,2002 was in fact 34 days from the date of the decision. 
Under the regulations, an affected party has 30 days from the date of an adverse decision to file an appeal. 
See 8 CFR 8 103.3(a)(2). If the adverse decision was served by mail, an additional three-day period is added 
to the prescribed period. See 8 CFR 9 103.5a(b). The record reflects that the director's decision of February 
4, 2002 was sent to the petitioner at its address of record. The appeal was received by the Service Center 36 
days later on Monday, March 11, 2002. ' Thus, the appeal was untimely filed. As counsel indicated in his 
Motion for Reconsideration dated May 22,2003, the appeal was filed with CIS on Saturday, March 9,2002. 
March 9, 2002 is 34 days after the final decision. Moreover, since CIS is closed on Saturday, the appeal was 
not received by CIS until Monday, March 1 1,2002. Therefore, the appeal submitted by counsel on March 9, 
2002 was appropriately rejected as untimely filed. 
Moreover, in reviewing the merits of the appeal, thls petition was properly denied. The issue in this matter is 
whether the beneficiary will be employed in a primarily managerial or executive capacity. 
To establish L-1 eligbility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L), the petitioner must meet certain criteria. Specifically, within three years preceding 
the beneficiary's application for admission into the United States, 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. Furthermore, 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 regulations at 8 C.F.R. 8 214.2(1)(14)(3) state 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; 
' The AAO decision dated April 25, 2003 incorrectly states that the decision was filed 35 days after the 
date of the decision. As the record indicates, the appeal was filed on Monday, March 11, 2002 which is 
36 days after the February 4,2002 decision. 
SRC 01 158 51531 
Page 3 
(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's prior year of employment abroad was managerial, executive, or 
involved specialized knowledge and that the alien's prior education, training, and employment 
qualifies hm/her 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. 
(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 
(v) 
 education, training, and employment qualifies hider 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. 
In addition, section 101(a)(44)(A) of the Act, 8 U.S.C. 
 1 101(a)(44)(A), provides: 
The term "managerial capacity" means 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 with 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 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. 4 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment withn an organization in which the employee 
primarily- 
(i) 
 directs the management of the organization or a major component or hnction of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
SRC 01 158 51531 
Page 4 
(iii) 
 exercises wide latitude in discretionary decision-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
India. The U.S. entity was incorporated in the State of Georgia on August 11, 1997 and is engaged in the 
2 
retail store, investments, and trade business. 
 Accordingly, the U.S. entity petitioned CIS to classify the 
beneficiary as a nonimmigrant intracompany transferee (L-1A) pursuant to section 101(a)(15)(L) of the 
Act as an executive or manager for one year. The petitioner seeks to employ the beneficiary's services as 
a new employee and as the U.S. entity's Vice President of Marketing. 
On the Form 1-129, the petitioner described the beneficiary's U.S. duties as: "In charge of expanding U.S. 
operations, including full decision-malung responsibilities over financial and marketing operations. 
Develop markets and market strategy; hire and train employees." 
In addition, in an April 17,2001 supporting letter, the petitioner further described the beneficiary's proposed 
U.S. duties as: 
[Slupervision of all financial and marketing operations for the company, over which he will 
exercise complete discretionary authority. Ultimately, it will be his responsibility to establish 
Shamir, Inc. on a sound financial footing. He will recruit and train the staff and have hiring 
and firing authority over them. Additionally, he will use his marketing slulls to develop and 
execute the company's marketing strategies, including advertising campaigns and company 
promotions. 
On May 30, 2001, the director requested additional evidence. Specifically, the director requested a copy of 
the U.S. entity's organizational chart and a description of the beneficiary's duties as well as his subordinate 
employees' duties. 
In response, the petitioner submitted a copy of the foreign entity's organizational chart but did not submit a 
copy of the U.S. organizational chart as requested by the Director on May 3 1,2001, Petitioner also submitted 
additional information as to the beneficiary's duties in the United States. In a letter submitted by Shamir, Inc. 
dated August 10,200 1, the beneficiary's duties are described as the following: 
He will have total managerial and executive authority over the corporation and all of its 
activities and employees (subject only to reporting to the Board of Directors, of which he is 
. a member); 
2 
 In the December 3, 2001 letter submitted by petitioner, the petitioner claimed that it owned and 
operated a franchise restaurant, the Phillv connection. and owned "three other wholly and partially owned 
subsidiaries: and" The petitioner 
own and operate a 'Philly Connection' in Lawrenceville, GA, 
Suwanee, GA, and Tallahassee, FL." 
SRC 01 158 51531 
Page 5 
Management Decisions: he will possess all rights to execute all the managerial decisions of 
the Company, including purchasing, marketing, hiring and firing and promotion of 
employees; 
Company Representation: will act in the name of the Company in all lunds of business 
contacts and relations; 
Will have supervision of the company's day-to-day operations, including accounting and 
finance functions; 
Business Negotiations: will have contact with U.S. vendors, suppliers and will prepare and 
negotiate and execute business contacts in expansion of our business; and 
Organizational Development: projects the Company's future development in connection 
with our parents strategy and objectives and will execute steps to accomplish the desired 
growth. 
Furthermore, in the December 3, 2001 letter submitted by the petitioner, the author states that "in addition to 
supervising the three employee location in Alpharetta, GA, [the beneficiary] will have 
supervision responsibilities ove (i subsidiaries' managers, marketing a , finance 
and accounting The petitioner goes on currently 
has four employees, as three employees, and has eight employees, 
such as short order cooks, cashiers and clerks. 
On November 6, 2001, the director made a second request for additional evidence requesting that petitioner 
clarify whether the relationship between the foreign entity and the petitioner is that of a franchisee. The 
director also requested a copy of the franchise agreements. 
In a response dated December 3,2001, the petitioner claimed that it is a subsidiary of the foreign entity and 
that the ~etitioner "has invested in the U.S. franchising 'Phillv Connection' restaurants through direct 
ownership by 1 
 I [the petitioner1 and througfl 
relationship wii 
also reiterated the beneficiaw's ~rovosed U.S. duties. The 5 
" 
subsidiary 
." The petitioner 
1 the franchise am-eements for 
- 
, but did not submit a franchise agreement between 
. and the Philly Connection 
The director denied the petition on February 4, 2002 on the ground that petitioner did not establish that 
the beneficiary will be employed in a primarily managerial or executive capacity. ' The director found that 
the franchise agreements indicated that the "primary managerial and executive control was not in the 
hands of the petitioning company or the beneficiary's proferred position." The director also found that 
the methods and standards of operation were within the control of the franchiser. 
On appeal, counsel stated that the "District Director has incorrectly determined that the beneficiary is not 
acting in a managerial or executive capacity" and that the "franchisor also agrees that beneficiary has ths 
control and supporting letter summarizes these roles." In his March 6, 2002 brief, counsel described the role 
SRC 01 158 51531 
Page 6 
of the fianchlser stating, "the beneficiary will have significant managerial and executive duties as a licensee 
of the franchiser." 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that 
the beneficiary performs the high level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiaryprimarily performs these specified responsibilities and does not 
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). 
A critical analysis of the nature of the petitioner's business undermines the petitioner's assertion that the 
beneficiary will have "supervisory control over the subsidiaries managers, marketing, promotions, finance 
and accounting functions." If the beneficiary has supervisory control over such functions, it is unclear 
who will for example actually develop the marketing and promotion programs and who will handle the 
day-to-day finance and accounting operations. The record does not provide evidence that the petitioner or 
its subsidiaries have an accountant, finance manager or marketing manager that the beneficiary will 
oversee. Therefore, although the beneficiary claims to be in charge of these functions, it must be evident 
from the record that the beneficiary does not perform the tasks that he has been assigned to oversee. 
Rather, it appears that the only individual performing any marketing-related functions or accounting and 
finance operations is the beneficiary himself. In addition, the petition states that the beneficiary "will 
have contact with U.S. vendors, suppliers and will prepare and negotiate and execute business contacts in 
expansion of our business." Based on the record of proceeding, the beneficiary's job duties are composed 
of non-qualifying duties that preclude him from functioning in a primarily managerial or executive role. 
Again, 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 I&N Dec. 593,604 (Comm. 1988). 
Further, the petitioner has failed to submit convincing evidence to establish that the petitioner ever 
entered into an agreement with "The Philly Connection Restaurant" franchise business. Thus, the record 
does not present evidence that the petitioner will supervise the employees of the franchise restaurant. 
wholly and partially owned subsidiaries: 
The petitioner claimed that "each of the three 
GA, Suwanee, GA, and Tallahassee, 
FL. 
 The petitioner further claims that the beneficiary will have supervisory responsibilities over the 
subsidiaries' mana ers marketing and prom 
 functions. The 
to state that 
 has three employees an 
supervise the employees of the 
fkanchise restaurants and subsidiaries. the record does not ~rovide anv evidence of a relationshiu between 
and the three mentioned subsidiaries and the franchise restaurants. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Thus, since 
the petitioner has failed to submit any evidence of a connection between the petitioner and a franchise and 
the petitioner and the separate listed subsidiaries, there is no evidence in the record that the beneficiary 
will supervise any subordinate staff. 
SRC 01 158 51531 
Page 7 
does not provide any evidence of a relationship between petitioner and these entities. In fact, it appears 
that these companies are separate legal entities operating in the United States. Therefore, this raises an 
additional question as to whether the U.S. petitioning entity is doing business as required by 8 C.F.R. 
$ 214.2(l)(l)(ii)(G)(2). Since the evidence does not establish a relationship between Shamir Inc. and the 
three listed entities or a franchise, it is unclear as to the type of business Shamir, Inc. is undergoing in the 
United States. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence and failure to provide such proof may cast doubt on the reliability and 
sufficiency of the remaining evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The 
petitioner has not established that it is doing business in the United States. 
Beyond the decision of the director, if a petition indicates that a beneficiary is coming to the United States 
to open a "new office," it must show that it is ready to commence doing business immediately upon 
approval. In a request for evidence dated May 24,2001, the Service Center asked the petitioner to specify 
if the petition was for a new office. In the August 10, 2001 response, the petitioner indicated that the 
petition was in fact for a new office and was requesting the visa to be valid for one year. At the time of 
filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired 
sufficient physical premises to commence business, that it has the financial ability to commence doing 
business in the United States, and that it will support the beneficiary in a managerial or executive position 
within one year of approval. See generally, 8 C.F.R. $ 214.2(1)(3)(~). The petitioner failed to establish 
that it has secured sufficient physical premises to house the new office, the proposed nature of the office, 
the scope of the entity, its organizational structure, the size of the United States investment, the financial 
ability of the foreign entity to remunerate the beneficiary, and the financial ability to commence doing 
business in the United States. For these additional reasons, the appeal must be dismissed and the petition 
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 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), aff'd. 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). 
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. 1361. Here, that burden has not been met. Accordingly, 
the motion is rejected and the underlying appeal should be dismissed. 
ORDER: The motion is dismissed.