dismissed L-1A Case: Retail

rdentifying data deletea ~r, 
prevell t clearly unwarranted 
invasion of wrsooal privacy 
PUBLIC COPY 
U.S. Department of £lomeland Security 
20 Massachusetts. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC 04 104 50750 Office: CALIFORNIA SERVICE CENTER Date: JUL 0 7 20QFj, 
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. $ 1101(a)(15)(L) 
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. 
obert P. Wieman hief 
M 
I 
Administrative ~p/~eals Office 
WAC 04 104 50750 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (MO) on appeal. The MO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1 A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a California company that claims to be engaged in 
retail outlets, investments and real estate. It operates a retail perfume store. The petitioner claims that it is an 
affiliate o-located in Mumbai, India. The beneficiary was initially granted one year in L-IA 
classification in order to open a new office in the United States and was subsequently approved for a two-year 
extension of stay. The petitioner now seeks to extend the beneficiary's status for a three-year period. 
The director denied the petition concluding that the petitioner did not establish: (1) that the beneficiary would 
be employed in a primarily managerial or executive capacity; or (2) that the U.S. entity is a qualifying 
organization. 
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 disputes the director's 
findings and asserts that the petitioner and the foreign entity are qualifying affiliates. Counsel contends that 
the beneficiary supervises both professional and managerial employees, and manages numerous functions of 
the organization. Counsel contends that the U.S. company has sufficient staff to relieve the beneficiary from 
performing the day-to-day operations of the business. Counsel submits a brief 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. 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. 
WAC 04 104 50750 
Page 3 
(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 himher 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 AAO will first address the issue of whether the United States company is a qualifying organization as 
required by 8 C.F.R. 9 2 14.2(1)(3)(i). 
The regulation at 8 C.F.R. 9 214.2(1)(l)(ii) states, in pertinent part: 
(G) Qualifiing organization means a United States or foreign firm, corporation or other legal 
entity which 
(I) 
 meets exactly one of the qualifying relationships in the definitions of a parent, 
branch, affiliate or subsidiary specified paragraph (l)(l)(ii) of this section; 
(2) 
is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or though a 
parent, branch, affiliate or subsidiary for the duration of the alien's stay in the 
United States as an intracompany transferee. . . . 
(L) Affiliate means 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or 
proportion of each entity. 
The petitioner submitted evidence to establish that both the foreign entity, an Indian partnership, and the U.S. 
company, a domestic general partnership registered in California, are 50-50 partnerships owned by the 
beneficiary and another individual, an Indian national. The director did not question the claimed affiliate 
relationship between the two companies, but, on October 12, 2004, denied the petition on the basis that the 
United States company is not a qualifying organization as it cannot be considered "an employer in the United 
States." See 8 C.F.R. 9 214.2(1)(l)(ii)(G)(2). The director explained his determination as follows: 
In the Matter of United Investment Grouu, 19 I.&N. Dec. 248, (Comm'r 1984), the 
Commissioner of the legacy Immigration and Naturalization Service held that neither a sole 
proprietorship nor a partnership is a legal entity apart from its owner or owners. In addition, 
WAC 04 104 50750 
Page 4 
for the purpose of a visa petition, the actual partnership which existed when the job offer was 
made and certified must continue and intend to employ the beneficiary as certified. A 
separately entered partnership or newly constituted partnership may not be a successor of 
interest for this purpose. 
It is fundamental to this non[-]immigrant visa classification that there be a United States 
entity to employ the beneficiary. . . The petitioner provided an IRS Form 1065 with Schedule 
K-1 which demonstrates that the beneficiary is the general partner of the petitioning 
partnership. Unlike a corporation, a partnership does not exist as an entity apart form [sic] the 
individual proprietor. If the beneficiary is actually the general partner of the petitioning 
partnership with no authorized branch office of the foreign employer or separate legal entity 
in the Untied [sic] States, there is no U.S. entity to employ the beneficiary and therefore no 
qualifying organization. 
On appeal, counsel asserts that the petitioner submitted sufficient evidence to establish that the United States 
and foreign entities are qualifying affiliates based on common ownership and control. Counsel does not 
address the director's finding that the petitioner is not a United States employer for the purposes of this 
nonimmigrant visa petition. 
Upon review, the AAO concurs with counsel's assertion that the U.S. and foreign entities are qualifying 
organizations. 
The Commissioner's decision in Matter of United Investment Group should not be construed as a prohibition 
on the filing of visa petitions by U.S. organizations that are structured as partnerships. Matter of United 
Investment Group involved an immigrant visa petition filed pursuant to section 203(a)(6) of the Act, 8 U.S.C. 
5 1 153(a)(6), following a grant of labor certification from the U.S. Department of Labor. The petitioner, a 
partnership, was not the same partnership that had filed the labor certification application on behalf of the 
beneficiary, although it used the same trade name. Matter of United Investment Group focused on the specific 
question of whether a separately entered partnership or newly constituted partnership may be a successor in 
interest for the purposes of an immigrant visa petition. 
Contrary to the director's findings in this case, there was no determination in Matter of United States 
Investment Group that would prohibit a domestic partnership, including one that is partially owned by the 
beneficiary, from filing an employment-based petition. The facts of the instant matter can clearly be 
distinguished from those in Matter of United Investment Group. There is sufficient evidence in the record to 
establish that the U.S. and foreign entities are qualifying organizations. Accordingly, the director's decision 
with respect to this issue will be withdrawn. 
The second issue in the present matter is whether the petitioner established that the beneficiary would be 
employed by the United States entity in a managerial or executive capacity under the extended petition. 
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: 
WAC 04 104 50750 
Page 5 
(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 
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. 
 1 101(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 March 2,2004. In a February 19,2004 letter appended to the petition, 
the petitioner stated that the beneficiary has responsibility for "over all finance, marketing and administrative 
operations of the company - over which he has been exercising complete discretional authority." The 
petitioner further described the beneficiary's duties as follows: 
Since transferring on the L-lA, he has successfully negotiated business acquisitions and 
entered into contractual obligations on behalf of the company with vendors and distributors. 
He has executed legally binding documents and obtained financing in connection with our 
acquisitions. [The beneficiary] will continue to manage all financial and developmental 
aspects of our company, from public relations and marketing to the development of company 
policy, financial management and the implementation of procedures' for the efficient running 
WAC 04 104 50750 
Page 6 
of the company. Ultimately, it will be his responsibility to market the operations of these 
investments and continue the financial success of [the petitioner]. [Hle will continue to 
recruit and train the staff and have hiring and firing authority over them, as well as further 
development and execution of our marketing strategies. In addition, he will continue to have 
responsibility for obtaining contracts and entering contractual obligations for and on behalf of 
[the petitioner]. 
The petitioner stated on Form 1-129 that the petitioner had three employees as of the date of filing. The 
petitioner submitted its most recent California Form DE-6, Quarterly Wage and Withholding Report, 
confirming employment of five part-time employees earning wages between $385 and $1,323 for the quarter 
ended on December 3 1,2003. 
On April 16, 2004, the director requested additional evidence to establish that the beneficiary would be 
performing the duties of a manager or executive in the United States. Specifically, the director instructed the 
petitioner to provide: (1) an organizational chart clearly identifying the beneficiary's position and names, job 
titles, brief job descriptions, annual salarylwages, and educational level for the beneficiary's subordinates; (2) 
a copy of IRS Forms 941, Quarterly Federal Tax Return for the first quarter of 2004; (3) a copy of California 
Form DE-6, Quarterly Wage and Withholding Report, for the first quarter of 2004; (4) copies of the U.S. 
company's payroll summary, Forms W-2 and W-3 evidencing wages paid to employees in 2002 and 2003; (5) 
a list of the goals and policies established by the beneficiary, and examples of specific discretionary decisions 
made by him, over the last six months; and (6) a specific day-to-day description of the duties the beneficiary 
has performed over the last six months. 
Counsel for the petitioner submitted a response to the director's request on June 28, 2004. The response 
included a June 16, 2004 letter from the petitioner, in which it provided the following description of the 
beneficiary's duties as "managing partner & CEO": 
Has total managerial and executive authority over the company and all of its activities 
and employees without limitation; 
Management Decisions: possesses all rights to execute all the managerial decisions of the 
Company, including purchasing goods and equipment and hiring, firing and promotion of 
employees; assess store mangers [sic] performance and assist with management issues; 
Company Representation: acts in the name of the Company in all kinds of business 
contacts and relations; coordinate with state governmental office to ensure compliance; 
Directs and formulates financial strategy to provide funding in developing and continuing 
the operations to maximize returns on investments; set sales and chemical cost targets for 
managers and monitor progress; 
Supervision of the company's day-to-day operations; oversee store standards regarding 
food quality and customer satisfaction policy; provide support to plant manager and 
support staff; 
Organizational Development: projects the Company's future development and executes 
steps to accomplish the desired growth; prepare publicity and promotional campaigns; 
plan business strategy and target new business investments 
WAC 04 104 50750 
Page 7 
The petitioner further indicated that the beneficiary would allocate his time to the following responsibilities: 
Management Decisions 25% 
Company Representation 15% 
Financial Representation 15% 
Supervision of the company day to day operations 20% 
Business Negotiations 10% 
Organizational Development 15% 
The petitioner provided a list of its employees by name, job title, and job description, and provided an 
organizational chart depicting the same employees. The list included: a manager, perfume stores; a retail sales 
manager; two front deskhashier employees; four retail sales representatives; and a human resources 
consultant. The petitioner also provided a letter from Expanbiz., Inc. signed by its claimed human resources 
cbnsultant, confirming that it provides bookkeeping, payroll and human resources consultation services to the 
petitioning company on a contract basis. The petitioner's California Form DE-6 for the first quarter of 2004, 
the quarter in which the petition was filed, confirmed the employment and wages of the following staff the 
manager, perfume stores ($1,400); a "front desWcashier" employee ($491); and two sales representatives 
($1,577 and $1,620). The beneficiary's spouse is also listed on the Form DE-6, but she is not identified on 
the list of employees or organizational chart. She received wages of $84.00 during the quarter. 
The petitioner stated that the "manager, perfume stores" manages the store, prepares work schedules, assigns 
employees to specific duties, formulates pricing policies, coordinates sales promotion, manages inventory 
levels, coordinates activities of workers, and reviews actions of her subordinates. The petitioner noted that the 
front desklcashier greets customers, assists customers with purchases, answers the telephone and takes 
messages, and keeps the store clean. The petitioner indicated that the retail sales representatives welcome 
clients to the store, explain product specifications to clients, display merchandise, organize the store and 
display shelves, attend to customers, and pack materials and merchandise for delivery. 
Finally, the petitioner provided a list of the specific discretionary decisions, goals and policies that the 
beneficiary had exercised over the past six months: 
Major decision making for Petitioner related to financing, marketing, personnel and 
advertising 
Approved renovations, remodeling and repairs for business 
Educated staff on promotions and organized employee meetings 
Developed expansion plans 
Obtained all licenses permits and renewals 
Hired, fired and reviewed performance of employees 
Made final decisions on what perfumes will be sold at the store and negotiating contracts 
with buyers and sellers. 
Reported to the parent corporation in India on the companies performance . . . . 
Negotiated and signed all business contracts 
WAC 04 104 50750 
Page 8 
Provided specialized administration relating to contracts for purchasing, sale, 
administrative accounting and management controls. 
Reviewed bids for conformity to contract requirements in determining acceptable bids. 
Negotiated contract with bidders . . . . 
Provide management leadership relating to establishing human resources policies and 
procedures and to administered employee health, insurance, savings and hiring programs. 
The director denied the petition on October 12, 2004, concluding that the petitioner had not established that 
the beneficiary will be employed in a primarily managerial or executive capacity. The director observed that 
the evidence did not demonstrate that the beneficiary will be supervising managers, professionals or 
supervisors who would relieve him from performing non-qualifying duties. The director also noted that all of 
the beneficiary's subordinates were employed on only a part-time basis. The director concluded that the U.S. 
entity does not have the organizational complexity to support an executive position, nor does the record 
establish that the beneficiary's daily activities would be primarily managerial or executive. 
On appeal, counsel for the petitioner claims that the beneficiary manages a professional human resource 
consultant and a manager who in turn manage four skilled workers and other staff. Counsel claims that the 
petitioner also hires additional employees through a staffing company and has sufficient staff to operate its 
retail store. Counsel reiterates the beneficiary's job duties, and those of his subordinates, and asserts that the 
beneficiary "is a functional manager having responsibility over numerous disciplines within the organization: 
human resource management, marketing and financial authority to select suppliers, vendors, financial 
advisors, accountants, [and] legal advisors." Counsel notes that the beneficiary may perform some functions 
which would be performed by non-managerial employees in a larger business, but asserts that the petitioner is 
has sufficient staff to relieve the beneficiary from performing the daily tasks of running the store. Counsel 
concludes that the additional evidence establishes that the beneficiary is acting as an executive who exercises 
significant authority over generalized policy, and cites unpublished decisions to stand for the proposition that 
an employee who develops new business ventures and negotiates contracts may qualify as a managerial or 
executive employee. 
Upon review of the petition and the 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. 3 214.2(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. In the instant case, the petitioner asserts that the beneficiary is primarily engaged in both 
managerial duties and executive duties. To sustain such an assertion, the petitioner must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive duties under 
section 101(a)(44)(B) of the Act, and the statutory definition for managerial duties under section 
101(a)(44)(A) of the Act. At a minimum, the petitioner must establish that the beneficiary is primarily 
employed in one or the other capacity. See 8 C.F.R. 3 214.2(1)(3)(ii). 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states that 
WAC 04 104 50750 
Page 9 
the beneficiary devotes 25 percent of his time to "management decisions," including purchasing goods, hiring 
and firing employees and assessing the performance of the petitioner's store manager, but did not explain how 
"purchasing goods" qualifies as a managerial or executive duty. Although the beneficiary's responsibility for 
hiring and firing employees may be considered a qualifying duty, the evidence does not establish that this 
duty would realistically require a significant portion of the beneficiary's time, given that the petitioner has 
never had more than five employees. The petitioner also stated that the beneficiary devotes 20 percent of his 
time to supervising the company's operations including "overseeing the store standards regarding food 
quality" and "providing support to the plant manager and support staff." However, since the petitioner does 
not claim to employ a plant manager or operate a food service business, these duties are not credible. 
Similarly, the petitioner indicates that the beneficiary devotes 15 percent of his time to formulating financial 
strategies and setting sales and "chemical cost targets" for managers. Again, this duty does appear to be 
related to the type of business operated by the petitioner, which operates a retail store. 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). 
Other portions of the petitioner's job description are equally vague, including the beneficiary's responsibility 
for "project[ing] the company's future development and executing steps to accomplish the desired growth." 
The petitioner fails to specify the beneficiary's plans for the company or the actual tasks he performs or will 
perform to develop the business. The petitioner also states that the beneficiary "prepares publicity and 
promotional campaigns" but, again, fails to clarify how these marketing and advertising tasks qualify as either 
managerial or executive in nature. Finally, the petitioner asserts that the beneficiary is "target[ing] new 
business opportunities" but provided no additional explanation as to the specific duties performed within this 
broad responsibility. 
While the petitioner has provided a fairly lengthy job description and a breakdown of the amount of time the 
beneficiary devotes to each area of responsibility, the petitioner has described the position in only general 
terms, and has included responsibilities that are not consistent with the type of business operated by the 
petitioner. Thus, the 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. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner is required to substantiate its vague claims with a detailed description of how the beneficiary's 
responsibility of running and managing the company would satisfy the requirements of either managerial or 
executive capacity. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). The provided job 
descriptions do not allow the AAO to determine the actual tasks the beneficiary will perform such that they 
can be classified as managerial or executive. See 8 C.F.R. 8 214.2(1)(3)(ii). 
As the petitioner failed to provide a detailed account of the beneficiary's day-to-day duties, the director 
reasonably looked to the petitioner's staffing structure to determine whether the petitioner's business could 
support the beneficiary in a primarily managerial or executive position. Although the director based his 
decision partially on the size of the enterprise and the number of staff, counsel asserts that the director did not 
take into consideration the reasonable needs of the enterprise. As required by section 101(a)(44)(C) of the 
WAC 04 104 50750 
Page 10 
Act, if staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, CIS must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. 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. 
On appeal, counsel claims that the petitioner has sufficient staff, including a manager, a professional human 
resources consultant, four skilled employees, and "additional employees hired through a staffing company" to 
relieve the beneficiary from operating the company's retail store. The AAO notes that the petitioner, in 
response to the request for evidence, claimed to employ two managers, six additional employees, and a human 
resources consultant, and at the time of filing, claimed to employ only three workers. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The 
petitioner's Form DE-6, Quarterly Wage and Withholding Report for the first quarter of 2004 confirms that 
the employees identified as "manager, perfume stores," a "front desk/cashierW and two retail sales 
representatives were employed on a part-time basis at the time the petition was filed. The front-desk 
employee received only $491 in wages during the three-month period, while the other employees received 
wages ranging from $1,400 for the "manager" to $1,620 for one of the sales representatives. Assuming that 
the employees received the California minimum wage of $6.75 per hour, none of the employees worked more 
than 20 hours per week. There is no evidence to document the employment of the retail sales manager, the 
other front deskhashier employee, or the two additional sales representatives, nor is there any evidence to 
substantiate the petitioner's claim on appeal that the petitioner utilizes an employment staffing agency to hire 
additional workers. Again, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N Dec. at 165. 
The petitioner operates a retail perfume store located in a shopping mall. Although the petitioner did not 
provide its operating hours, it is reasonable to assume that the store is open during regular shopping center 
hours, from 10:OO a.m. until 9:00 p.m. from Monday through Saturday, with additional hours on Sunday, or 
approximately 70 hours per week. Based on the evidence submitted, all of the beneficiary's subordinates' 
hours combined do not add up to 70 hours. The petitioner requires employees to order merchandise, receive 
deliveries, arrange store displays, monitor inventory, assist customers, handle sales transactions and perform 
administrative functions such as paying bills, making bank deposits, and reconciling daily receipts. Based on 
the petitioner's representations, it does not appear that the reasonable needs of the petitioning company might 
plausibly be met by the services of the beneficiary as president and four part-time employees. At best, the 
beneficiary's subordinates would barely relieve him from performing the most basic operational task of 
waiting on customers. The lack of staff working in the store to perform non-qualifying duties brings into 
question how much of the beneficiary's time can actually be devoted to managerial or executive duties. The 
reasonable needs of the petitioner suggest that the beneficiary must spend a significant amount of time 
performing the tasks necessary to provide the petitioner's services. An employee who "primarily" performs 
WAC 04 104 50750 
Page 11 
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 Scientology 
Int '1, 19 I&N Dec. 593, 604 (Comm. 1988). 
While performing non-qualifying tasks necessary to produce a product or service will not automatically 
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner 
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive 
duties. Section 101(a)(44) of the Act. 
 As discussed above, the petitioner has not established this essential 
element of eligibility. 
The AAO acknowledges counsel's assertion that the beneficiary supervises a professional employee and a 
managerial employee. 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 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. In the present matter, the totality of the 
record does not support a conclusion that the beneficiary's subordinates are supervisors, managers, or 
professionals. Instead, the record indicates that the beneficiary's subordinates perform the actual day-to-day 
tasks of operating the petitioner's retail store. Thus, the beneficiary's supervisory duties cannot be considered 
managerial in nature. See section 101 (a)(44)(A)(iv) of the Act. 
The claimed "professional" employee, whose position is identified as "human resource consultant" appears to 
be employed as the office manager for a company called While this individual has provided 
a letter fromconfirming that the company with bookkeeping and payroll 
services and "human resources consultation," there is insufficient evidence that the beneficiary actually 
supervises the claimed employee, or that the services provided are professional. The petitioner's job 
description for the "human resources consultant" position portrays this employee as a full-time staff member 
responsible for maintaining equipment and systems, "executive recruitment," evaluating financial and 
information systems, and several other duties that are not credible within the context of the petitioner's 
business. Furthermore, the petitioner's 2003 financial records account for payment of professional fees for 
bookkeeping, payroll and tax preparation services in the amount of approximately $4,149.88, but reflect no 
other payments for outside services or independent contractors. The petitioner has not established that the 
beneficiary supervises a professional "human resources consultant." Again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. at 165. 
Counsel claims for the first time on appeal that the beneficiary is a "function manager7' because he has 
responsibility over "numerous disciplines within the organization." The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
WAC 04 104 50750 
Page 12 
primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act, 8 U.S.C. 8 1101(a)(44)(A)(ii). The term "essential function" is not defined by 
statute or regulation. If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must furnish a detailed job description that identifies the function with specificity, articulates the 
essential nature of the function, and establishes the proportion of the beneficiary's daily duties attributed to 
managing the essential function. 8 C.F.R. 
 214.2(1)(3)(ii). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than pe$orms the 
duties related to the function. 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. Boyang, Ltd. v. 
I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner has neither provided a 
detailed description of the beneficiary's actual duties, nor established that he performs primarily managerial 
duties. Furthermore, counsel's blanket assertion that the beneficiary manages "numerous disciplines" is 
insufficient to establish his eligibility for classification as a manager of an essential function. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503 (BIA 1980). The petitioner has not established that the beneficiary would be employed primarily as a 
function manager. 
Nor has the petitioner established that the beneficiary is employed in a primarily executive capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1101(a)(44)(B). Under the 
statute, a beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of that organization. Inherent to the definition, the organization must have a subordinate level of managerial 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. 
In sum, the lack of a detailed description of the beneficiary's actual duties, considered in conjunction with the 
absence of employees to relieve the beneficiary from performing day-to-day activities of the company, 
precludes a finding that the beneficiary would be performing primarily managerial or executive duties under 
the extended petition. The fact that an individual manages a small business and is assigned an executive job 
title does not necessarily establish eligibility as an intracompany transferee. While the beneficiary may 
exercise discretionary authority over the U.S. company, the record is not persuasive in demonstrating that the 
beneficiary performs primarily qualifying duties. Further, regardless of the beneficiary's position title, the 
record is not persuasive in establishing that the beneficiary will function at a senior level within an 
organizational hierarchy. 
WAC 04 104 50750 
Page 13 
The petitioner indicates that it plans to open additional locations and hire additional employees in the future. 
However, 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Finally, counsel's reference to unpublished decisions is not persuasive. Counsel has hished no evidence to 
establish that the facts of the instant petition are analogous to those in the unpublished decisions. While 8 
C.F.R. 3 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a primarily managerial or executive capacity. For this reason, the appeal will be dismissed. 
Finally, the AAO acknowledges that CIS approved a previous request for an extension of L-1A status filed on 
the beneficiary's behalf. However, each nonimrnigrant petition has a separate record of proceeding with a 
separate burden of proof; each individual petition must stand on its own merits. See 8 C.F.R. 8 103.8(d). The 
prior approvals do not preclude CIS from denying an extension of the original visa based on a reassessment of 
the petitioner's and beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 
1240482 (5th Cir. 2004). Moreover, if the previous nonimmigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the prior approval would constitute material 
and gross error on the part of the director. Due to the lack of required evidence of eligibility in the present 
record, the AAO finds that the director was justified in departing from the previous approvals by denying the 
present extension petition. 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Cornm. 1988). It would be absurd to suggest that CIS or any agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afyd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
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. 
ORDER: The appeal is dismissed.