dismissed L-1A Case: Retail

t~mp;i~t I ;.t~ ":Ie@ U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
JUMP OSMDli 
FILE: LIN 03 079 52861 Office: NEBRASKA SERVICE CENTER Date: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. . 
1 RO H ert P. Wiemann, rector 
t 
dministrative Appeals Office 
LIN 03 079 52861 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated in Geor a in 
2001 and claims to operate a gas station and a minimart. The petitioner claims to be a subsidiary of h 
located in India. It claims $875,566.00 in gross annual income and $19,567.00 in net 
annual income for 2002. It seeks to extend its authorization to employ the beneficiary temporarily in the 
United States as its vice president and chief executive officer for three years, at an annual salary of 
$35,000.00. The director determined that the petitioner failed to establish that the beneficiary wouId be 
employed by the U.S. entity primarily in a managerial or executive capacity. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence is sufficient to 
demonstrate that the beneficiary will be employed by the U.S. entity in a managerial or executive capacity. 
To establish L-1 eligibility under section lOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer, or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. tj 214.2(1)(l)(ii) states, in part: 
Infracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. $214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a 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 
LIN 03 079 52861 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(7)(i)(C) states in part: 
Amendments. The petitioner shall file an amended petition, with fee, at the Service Center 
where the original petition was filed to reflect changes in approved relationships, additional 
qualifying organizations under a blanket petition, change in capacity or employment (i.e., 
from a specialized knowledge position to a managerial position), or any information which 
would affect the beneficiary's eligibility under section 101 (a)(15)(L) of the Act. 
The petitioner initially stated that the entity located in Topeka, Kansas was petitioning for an extension of stay 
on behalf of the beneficiary. The petitioner submitted copies of the beneficiary's 1-94, which indicated that he 
entered the United States on a B-2 visa on July 2,2001, and was to be classified as such until January 1,2002. 
The petitioner also submitted a copy of the original Form I-797A. 
The director, in his Notice of Request For Evidence, specifically requested: 
The evidence provided indicated that the beneficiary was initially granted L-IA status to set 
up a new office in Texas. However, this extension petition is for an entity in Kansas. 
Therefore, it does not appear that the beneficiary was performing the duties for which the 
petition was granted. 
You must submit evidence regarding the purpose of the initial petition and whether the 
beneficiary performed the duties described in that petition. Also provide evidence that the 
beneficiary was authorized by the Service to conduct business in a state other than that 
specified in the approved petition. 
In response to the director's request for additional evidence on the subject, counsel stated in part: 
Initially, the company set up its offices in Texas to explore business opportunities in the 
United States. The beneficiary was performing his duties of establishing the United States 
operations i.e. meeting with sellers, brokers, and bankers. Also, the beneficiary was 
planning, budgeting and performing administrative duties. The beneficiary is performing the 
same duties that were listed in the initial L-1A petition except at a different location. 
We are not aware of any regulation or a process by which a U.S. Company seeks the approval 
of the INS to conduct business in a specific state. The L-IA company is authorized by the 
Service to do business in the United States. The U.S. Company can domesticate itself in any 
state to do business. 
The director subsequently denied the petition. The director stated that although counsel claimed that it was 
unaware of any regulations or processes used to seek approval to do business in a specific state, with the first 
petition the petitioner was required to provide "evidence of the entity and indicate where the beneficiary 
would be working and what his duties would be." See 8 C.F.R. fj 214.2(1)(7)(i)(C). The director noted: 
"[fjorming a new entity in a different state and transferring the beneficiary to such entity is clearly a change in the 
approved relationship and a change to the orignal petition." The director concluded by stating that the petitioner 
LIN 03 079 52861 
Page 4 
had failed to submit an amended petition at the time the beneficiary began employment in Kansas; therefore, he 
had not received authorization by the Service for employment. Hence, the director concluded that it did not 
appear that the beneficiary maintained his initially authorized status and subsequently denied the petition. 
On appeal, counsel fails to address the director's decision in denying the petition on grounds that the beneficiary, 
by transferring to another state to begin employment without first filing an amended petition with the Service, 
was out of status at the time the instant petition was filed. In the instant case, the I-797A submitted by the 
petitioner in reference to the beneficiary's initial status in the United States read in part: 
The above petition and change of status have been approved. The status of the named foreign 
worker(s) in this classification is valid as indicated above. The foreign worker(s) can work for 
the petitioner, but only as detailed in the petition and for the penod authorized. Any change in 
employment requires a new petition. 
The evidence of record clearly demonstrates that the beneficiary was out of status at the time the petition in the 
instant case was filed. There is no evidence to show that an amended petition was filed on behalf of the 
beneficiary at the time he began working for the company located in Topeka, Kansas. Therefore, the director's 
decision with respect to the beneficiary being out of status at the time the instant petition was filed will be 
affirmed. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 110l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(9 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; 
(iji) 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. 
LIN 03 079 52861 
Page 5 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity7' means an assignment within an organization in which the 
employee primarily- 
(1) Directs the management of the organization or a major 
component or function of the organization; 
(i i) 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 petitioner initially described the beneficiary as being in charge of planning, expansion, hiring, banking, 
accounting, sales, marketing, and budgeting. The petitioner also described the beneficiary's job duties in a 
letter of support and in response to the director's request for additional evidence, all of which has been made a 
part of the record and therefore, will not be repeated here. 
The director, in denying the petition, determined that the petitioner had failed to submit sufficient evidence to 
establish that the beneficiary would be employed primarily in a managerial or executive capacity. The 
director noted that many of the beneficiary's proposed duties such as "performing purchasing duties, 
attending training sessions, and performing marketing duties" were not managerial or executive in nature. 
The director further noted that the petitioner failed to clearly define the beneficiary's administrative duties. 
The director stated that the evidence presented was insufficient to determine whether the two managers will 
actually be performing managerial or supervisory duties sufficient to relieve the beneficiary from perfonning 
the day-to-day duties of the organization. The director concluded by stating that because an individual 
oversees a small business does not necessarily establish himher eligible as an LIA or LIB intracompany 
transferee. The director also stated that based on the evidence of record, it appeared that the beneficiary 
would be performing the day-to-day duties of the business. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence overwhelmingly 
demonstrates that the beneficiary has been and will be employed primarily in a managerial or executive 
capacity. Counsel describes the beneficiary's duties in part as: 
As VP and CEO, the beneficiary spends 10% of his time on the management of the retail 
operations (meet with staff to implement policy, advise staff of new products of [sic] services, 
encourage team building, and obtain licenses related to the business); 15% of his time on 
administrative hctions, including recruiting, hiring and training of staff; 15% of his time on 
planning, budgeting, banking, finance and accounting, review of financial statements, meeting 
bank officials, arranging loans, and providing prospectuses to banks; 40% of his time searching 
for, reviewing and analyzing potential new investments, analyzing zoning and legal issues, and 
negotiating acquisitions and; meeting with potential partners, co-investors, sellers, brokers, and 
LIN 03 079 52867 
Page 6 
preparing due diligence, meetings with sellers, brokers, reviewing contracts, and review 
contracts with attorney. 
Counsel further contends that similar one-person or small-staff office petitions have been granted by the AAO, 
and cites to unpublished decisions in support of his contentions. 
Counsel's assertions are not persuasive. The record contains insufficient evidence to demonstrate that the 
beneficiary will be employed in a primarily managerial or executive capacity. 
On appeal, counsel cites Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570 (N.D.GA. 1988), as support for 
petitioner's position. Mars Jewelers raised the question of whether the beneficiary qualified as a manager or 
executive for purposes of obtaining a permanent immigration visa under the previous "Sixth Preference" 
category. Counsel has not established that the facts in the Mars Jewelers case are analogous to the facts in the 
instant case or that the statutory and regulatory provisions used are applicable. In the Mars Jewelers decision, 
the petitioner was requesting an extension of stay for the beneficiary. The court ruled that the size of an 
organization was not to be considered as a sole factor in determining the beneficiary's elig~bility. However, in the 
current petition, the petitioner is seeking the beneficiary's services for the first time in the Topeka, Kansas office, 
and company size was not considered the controlling factor in determining the beneficiary's ineligibility as an 
intracompany transferee. Accordingly, counsel's reference to Mars Jewelers is not persuasive. 
Counsel also asserts on appeal that the instant case is similar to other cases that have come before the AAO. 
Counsel contends that the AAO should follow unpublished decisions in granting an extension of stay for the 
beneficiary, in that the beneficiary is capable of operating the U.S. organization with the assistance of two 
managers. Counsel has not shown that the facts of the instant case are similar to the decisions cited. Moreover, 
while 8 C.F.R. $ 103.3(c) provides that CIS precedent decisions are binding on all CIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. An unpublished decision cames no 
precedential weight. See Chan v. Reno. 1 13 F.2d 1068, 1073 (91h Cir. 1997) (citing 8 C.F.R. $ 3.l(g)). As the 
Ninth Circuit says, "[U]npublished precedent is a dubious basis for demonstrating the type of inconsistency 
which would warrant rejection of deference." Id. (citing De Osorio v. INS, 10 F.3d 1034, 1042 
(4Ih Cir. 1993)). In the instant matter, the petitioner has failed to submit sufficient evidence to demonstrate 
that the beneficiary will be empIoyed primarily in a managerial or executive capacity. It appears from the 
record that the beneficiary will primarily be engaged in the day-to-day, non-qualifying duties of the 
organization. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.