dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
"PtlBLIc COPY 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 132 52200 Office: CALIFORNIA SERVICE CENTER Date: JUn 0 7 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 101(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. 
Robert P. Wiemann, Director 
Administrative Appeals OfFice 
WAC 03 132 52200 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its branch manager as an 
L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationalitv Act (the Act), 8 U.S.C. Ej 1101(a)(15)(L). The petitioner is a corporation organized under the laws . . . . .. 
of the Territory of Guam and claims to be a retailem 
The petitioner states that it is an aftilia I seeks to extend the beneficiary's stay for a 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
On appeal, counsel disputes the director's findings and submits a brief in support of his assertions. 
To establish L-l eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 1 Ol(a)(lS)(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'regulations at 8 C.F.R. 5 214.2(1)(3) state that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(9 Evidence that the petitioner and the organization which employed or will employ 
the alien are qualifying organizations as defined in paragraph (I)(I)(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 services in the United States. 
At issue in this proceeding is whether the petitioner has established that the beneficiary will be employed 
primarily in a managerial or executive capacity. 
WAC 03 132 52200 
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Section 101(a)(44XA) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
emp I oyee 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; 
. . . 
111. 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 1 Ol(a)(44)(B), provides: 
The term "executive capacity" means 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; 
. . 
11. 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. 
In support of the petition, the petitioner provided the following description of the beneficiary's job duties 
1. As [blranch [mlanager, [the beneficiary] supervises the work of his four (4) employees, 
especially on technical aspects where his expertise is required. He has full authority to hire 
and. if necessary, fire and schedule leave for all employees in the Division. 
2. At this time of the government's save energy program, [the beneficiary] has to train his sales 
people and customers on the technical functions of the solar heaters. 
WAC 03 132 52200 
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3. [The beneficiary's] presence is necessary at installation and commissioning of units. 
4. Since [the beneficiary] became the [blranch [mlanager of he has sold 56 
units up to December, [sic] 2002. In January 2003 alone he has sold 14 units, and he is 
optimistic that the business would continue to improve because of his technical skills and 
know-how ably explained to his sales people and customers. 
5. As the organizational chart shows, [the beneficiary], in his managerial capacity, supervises 
and controls the work of his employees, or otherwise manages and directs the essential 
function of the [petitioner]. 
5. It cannot be emphasized enough that the expertise of [the beneficiary] gained in his years of 
employment with [the foreign entity] is needed in his supervision of his employees, 
especially as to technical aspects and proper installation of solar heater units. 
On May 6,2003, CIS issued a request for additional evidence. A significant portion of the request focused on 
the beneficiary's position in the United States. In that regard, the petitioner was asked to provide a copy of its 
organizational chart to illustrate the petitioner's managerial hierarchy and staffing levels. The chart was also 
to include the names of all of the petitioner's employees and point out those employees that are directly under 
the beneficiary's supervision. The petitioner was further asked to provide a detailed position description for 
the beneficiary, assigning a percentage of time that the beneficiary spends performing each of his listed 
duties, as well as brief position descriptions for all of the beneficiary's direct subordinates. 
The petitioner responded with a letter from counsel, dated July 25, 2003. Along with the letter, the petitioner 
submitted its organizational chart showing the beneficiary as the head of the division. The 
chart indicates that the beneficiary has four subordinates including a coordinator, a salesman, a 
warehouseman, and an installer. The petitioner indicated that the coordinator performs secretarial duties; the 
salesman deals with customers in an effort to sell the petitioner's products; the installer installs purchased 
units in the customers' homes; and the warehouseman ensures proper conditions of the warehouse and keeps 
track of the number of units sold. Although requested to submit a more detailed description of duties of the 
beneficiary, the petitioner provided the exact same description that it previously submitted in support of the 
petition and failed to assign a percentage of time the beneficiary would spend performing his daily duties. 
On September 15, 2003, the director issued a decision, which listed the beneficiary's duties and concluded 
that the record does not contain sufficient evidence to establish that the beneficiary would primarily perform 
qualifying duties. 
On appeal, counsel asserts that the petitioner's organizational chart is a clear indicator of the beneficiary's 
authority over his subordinate personnel. However, the AAO does not dispute the beneficiary's apparent 
discretionary authority. In any case, this factor is only one of several that must be considered in determining 
the petitioner's eligibility for the benefit sought. 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. 
5 2 14.2(1)(3)(ii). in the instant matter, the petitioner submitted a job description that is entirely too general to 
convey a clear understanding of what the beneficiary has been and would be doing on a daily basis. Specifics 
are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin 3ro.r. 
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Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 19891, aff'd7 905 F.2d 41 (2d. Cir. 1990). The broad 
description of duties provided by the petitioner suggests that the beneficiary's time will primarily be 
consumed with managing a staff of individuals who, based on their job descriptions, cannot be deemed 
managerial, supervisory, or professional. Based on the beneficiary's description of duties, the beneficiary 
continues to engage in customer service functions in an effort to train the customers and the petitioner's sales 
staff on how to use the petitioner's product. The petitioner also indicated that the beneficiary has been 
directly involved in selling the petitioner's product and is present during product installations. While the 
AAO does not dispute the beneficiary's professional knowledge and his discretionary authority over the sales 
of the petitioner's product, the fact remains that 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). Counsel further 
refers to an unpublished decision involving an employee of the Irish Dairy Board. In the unpublished 
decision, the AAO determined that the beneficiary met the requirements of serving in a managerial and 
executive capacity for L-1 classification even though he was the sole employee. CounseI has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the Irish Dairy Board 
matter. Rather, the record strongly suggests that the beneficiary has been and will continue to be directly 
involved in carrying the petitioner's daily operational tasks. It is noted that the statements of counsel on 
appeal or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. 
Phinputhya, 464 U.S. 183, 188-89 n.6 (1 984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Furthermore, while 8 C.F.R. 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. 
Although counsel properly implied that the beneficiary need not be a personnel manager in order to qualify as 
a manager or executive, the record lacks evidence that the beneficiary manages a function. The term 
"function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section I0 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. § 1 1 01 (a)(44)(A)(ii). If a petitioner claims 
that the beneficiary is managing an essential function, the petitioner must identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential function. In addition, the petitioner must provide a 
comprehensive and detailed description of the beneficiary's daily duties demonstrating that the beneficiary 
manages the function rather than performs the duties relating to the function. However, as previously 
indicated, while the director specifically asked the petitioner to submit a detailed description of the 
beneficiary's job duties, including the percentage of time spent on each duty, the petitioner failed to respond 
to this request. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. § 103.2(b)(14). Due to this failure, the record does not contain the 
necessary detailed description of duties or other evidence that would suggest that the beneficiary manages an 
essential function. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity as the record fails to establish that a 
majority of the beneficiary's duties have been and will be of a qualifying capacity. The record indicates that a 
preponderance of the beneficiary's duties have been and will be directly providing the services of the 
business. The petitioner has not demonstrated that the beneficiary will be primarily supervising a subordinate 
staff of professional, managerial, or supervisory personnel, or that he will otherwise be relieved from 
performing non-qualifying duties. Based on the evidence furnished, it cannot be found that the beneficiary 
WAC 03 132 52200 
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has been or will be employed primarily in a qualifying managerial or executive capacity. For this reason, the 
petition may not be approved. 
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. 4 136 I. Here, that burden has not been met. 
ORDER: The appeal is dismissed.