dismissed L-1A Case: Retail

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US. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
File: SRC 02 233 521 12 Office: TEXAS SERVICE CENTER Date: JAN 1 5 2008 
IN RE: 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 
 1 101(a)(15)(L) 
IN 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. 
Robe 
Administrative Appeals Office 
SRC 02 233 521 12 
Page 2 
DISCUSSION: The' director, Texas Service Center, denied the petition for a nonimmigrant visa. 
 The 
Administrative Appeals Office (AAO) withdrew the director's decision and remanded the matter for further 
consideration and entry of a new decision. The director again denied the petition, which was certified to the 
AAO for review. The AAO will affirm the director's decision. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president and general 
manager 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. 4 1101(a)(lS)(L). The petitioner, a corporation formed 
under the laws of the State of Texas, claims to operate a retail store. The petitioner asserts that it is a wholly 
owned subsidiary of the foreign employer, Mass Apparels & Fabrics (Private) Ltd., of ~akistan.' 
The director denied the petition on January 7, 2003 concluding that, because the petitioner is operating its 
business under a fi-anchise agreement, it has failed to establish that it has a qualifying relationship with the 
foreign entity. The petitioner appealed to the AAO. On June 9, 2005, the AAO withdrew the director's 
decision. The AAO concluded that the use of a franchise business model would not necessarily prevent the 
petitioner in this matter fi-om establishing that it is still owned and controlled by the foreign entity. However, 
because the record did not otherwise establish that the petitioner was owned and controlled by the foreign 
entity, and because the record did not establish that the beneficiary would be employed in a primarily 
managerial or executive capacity, the AAO remanded the matter for further consideration and the entry of a 
new decision. The AAO also directed that the new decision be certified to the AAO for review. 
On February 3, 2006, the director reopened the matter and, on April 7, 2006, the director requested additional 
evidence in view of the AAO's decision. Specifically, the director requested additional evidence regarding 
the petitioner's staffing and organization. The director also requested evidence establishing the petitioner's 
ownership and control including, inter alia, stock certificates. The petitioner, however, did not respond to the 
Request for Evidence. 
On April 4,2007, the director again denied the petition and certified the decision to the AAO for review. The 
director concluded that the petitioner had abandoned the petition for failing to respond to the Request for 
Evidence. The director further concluded, beyond the issue of abandonment, that the record did not establish 
that the petitioner is a qualifying organization or that the beneficiary will be employed in a primarily 
managerial or executive capacity. 
I 
According to the corporate records of the State of Texas, the petitioner's corporate status in Texas is as 
follows: "No standing, franchise responsibility ended." Therefore, since the petitioner can no longer be 
considered a legal entity in the United States, this would call into question the petitioner's continued eligibility 
for the benefit sought if the petition was not being denied for the reasons set forth herein. 
SRC 02 233 521 12 
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Upon certification, the petitioner was afforded the opportunity to submit a brief to the AAO within 30 days of 
the date of the director's decision. As of date of this decision, no brief has been received, and the file will be 
considered complete.2 
Upon review and for the reasons discussed herein, the AAO agrees with the director's decision and the 
petition shall be denied. 
As correctly noted by the director, the petitioner abandoned the instant petition by failing to respond to the 
Request for Evidence dated April 7, 2006. Title 8 C.F.R. 5 103.2(b)(13) states in pertinent part: 
If all requested initial evidence and requested additional evidence is not submitted by the 
required date, the application or petition shall be considered abandoned and, accordingly, 
shall be denied. 
Moreover, the regulations provide that no appeal lies from the denial of a petition for abandonment. 8 C.F.R. 
5 103.2(b)(15). 
Accordingly, the decision of the director shall be affirmed. 
Beyond the issue of abandonment, the director correctly determined the petitioner failed to establish (1) that it 
is a qualifying organization; or (2) that the beneficiary will be employed in a primarily managerial or 
executive capacity. These are essentially the same deficiencies identified by the AAO in its decision dated 
June 9,2005. 
The first substantive issue is whether the record establishes that the petitioner has a qualifying relationship 
with the foreign employer. 
The regulation at 8 C.F.R. $ 214.2(1)(14)(ii)(A) states that a petition to extend a "new office" petition filed on 
Form 1-129 shall be accompanied by: 
Evidence that the United States and the foreign entity are still qualifying organizations as 
defined in paragraph (l)(l)(ii)(G) of this section[.] 
Title 8 C.F.R. 4 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal 
entity which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, 
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing business." A 
"subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or indirectly, more than 
'It should be noted that the Notice of Certification attached to the April 4, 2007 decision invites the petitioner 
to file a brief within 30 days with the AAO. However, this Notice contains an incorrect address for the AAO. 
In view of this error, the AAO sent a fax to counsel to the petitioner asking him to forward a brief, if indeed a 
brief was filed, to the MO within five business days by mail or fax. As of the date of this decision, counsel 
has not responded to the AAO's fax. 
SRC 02 233 521 12 
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half of the entity and controls the entity." 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (Comm. 1988); see 
also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 
289 (Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
In this matter, the petitioner asserts that it is 100% owned and controlled by the foreign employer, a Pakistani 
business organization. However, the petitioner has not submitted sufficient evidence that it is owned and 
controlled by this business organization. As noted by both the AAO and the director, the petitioner failed to 
submit a copy of a stock certificate or other organizational documents which could establish ownership by the 
Palustani business organization. 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). Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
 103.2(b)(2)(i). 
Likewise, the petitioner has not established that it is controlled by the foreign entity. To the contrary, the 
record indicates that the petitioner has ceded control over its United States operation to a third party through a 
franchise agreement. Although a franchise may be an asset of an independently owned and operated 
company, and pursuit of a franchise business model alone does not automatically disqualify a petitioner from 
establishing that it has a qualifying relationship with a foreign entity, the petitioner must prove that it has 
retained the necessary latitude to control, direct, and develop the enterprise. See Matter of Kung, 17 I&N 
Dec. 260 (BIA 1978). In this matter, the franchise agreement in the record indicates that the franchisor 
retained significant rights over the royalties, service areas, inventory, equipment, fixtures, supplies, and 
managerial decisions. Therefore, as it appears that the petitioner has not retained the necessary latitude to 
control, direct, and develop the enterprise, the petitioner has failed to establish that it is controlled by the 
foreign entity. 
Accordingly, the petitioner has not established that it is a qualifying organization, and the petition may not be 
approved for that reason. 
The second substantive issue in this matter is whether the record establishes that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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 
SRC 02 233 521 12 
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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. § 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
Title 8 C.F.R. tj 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of 
the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business 
does not have sufficient staffing after one year to relieve the beneficiary fi-om primarily performing 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. 
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. 8 2 14.2(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 this matter, as correctly noted by both the AAO and the director, the record as presently constituted does 
not establish that the beneficiary will be employed in a managerial or executive capacity. The petitioner 
SRC 02 233 521 12 
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vaguely described the beneficiary's proposed job duties in a letter dated November 14, 2002. The petitioner 
stated that the beneficiary will, inter alia, negotiate and supervise "the drafting of purchase agreements," will 
develop "trade and consumer market strategies," and will develop and implement plans to ensure profitability. 
However, the petitioner never defines these profitability plans and never explains who, exactly, will perform 
the non-qualifying tasks inherent to the development of marketing plans or the drafting of purchase 
agreements, if not the beneficiary. Once again, 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. 
Likewise, the record indicates that the beneficiary will supervise non-professional employees who will 
perform the tasks necessary to produce a product or provide a service. Therefore, it appears that the 
beneficiary will be primarily a first-line supervisor of non-professional employees, the provider of actual 
services, or a combination of both. A managerial employee must have authority over day-to-day operations 
beyond the level normally vested in a first-line supervisor, unless the supervised employees are professionals. 
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. An 
employee who "primarily" performs 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 10 1 (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 International, 19 I&N Dec. at 604. 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "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. 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 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-day 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. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will be acting primarily in an executive capacity. The job description provided 
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day 
basis. Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line 
supervisor and will perform tasks necessary to produce a product or to provide a service. Therefore, the 
petitioner has not established that the beneficiary will be employed primarily in an executive capacity. 
Accordingly, the record fails to establish that the beneficiary will be employed in a primarily managerial or 
executive capacity, and the petition may not be approved for this reason. 
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. 8 1361. Here, that burden has not been met. Accordingly, the 
SRC 02 233 521 12 
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director's decision will be affirmed and the petition will be denied. 
ORDER: 
 The director's decision is affirmed. The petition is denied.