dismissed L-1A Case: Retail

~dmtifying data deleted to 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 03 087 53105 Office: TEXAS SERVICE CENTER Date: XT 2005 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 lOl(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. 
~ibert P. Wiernann, ~irdtor 
dministrative Appeals Office 
SRC 03 087 53 105 
Page 2 
DISCUSSION: The Director, Texas 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 president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a Tennessee 
and retail convenience store. The petitioner claims that it is an affiliate o ocated in 
united Arab Emirates. The beneficiary was initially granted a 
office in the United States and the petitioner now seeks to extend the beneficiary's stay for three years. 
The director denied the petition concluding that the petitioner did not establish that the U.S. company was 
doing business pursuant to 8 C.F.R. 5 214.2(1)(l)(ifl(H). 
On appeal, counsel for the petitioner submitted sufficient evidence to clearly establish that the petitioner has 
been doing business as defined in the regulations. counsel asserts that the director's decision involved an 
incorrect application of the law, or, alternatively, was 6ased on an incorpfilete review of the documentation 
submitted. Counsel notes that the director's decision refers to the receipt number for another petition or 
application and suggests that the director may have confused the facts of this case with those of another 
matter. 
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. 
(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 himlher to perform the intended 
SRC 03 087 53105 
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. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The primary issue in this matter is whether the petitioner has been doing business for the year preceding the 
filing of this petition as required by 8 C.F.R. 3 214.2(1)(14)(ii)(B). 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(H) defines "doing business" as "the regular, systematic, and 
continuous goods and/or services by a qualifying organization and does not include the mere presence of an 
agent or office of the qualifying organization in the United States and abroad." 
The petition was submitted on February 3, 2003. In support of the petition, the petitioner submitted: (1) 
evidence that the petitioning company purchased an existing business, a gas station and convenience store, on 
or about May 2, 2003; (2) copies of 26 IRS Fom W-2, Wage and Tax Statement, for 2002; (3) IRS Form 
940-EZ, Employer's Annual Federal Unemployment Tax Return for 2002; (4) IRS Forms 941, Employer's 
Quarterly Federal Tax Return, for the last three quarters of 2002; (5) Tennessee Department of Revenue State 
and Local Sales and Use Tax Return for May 2002; (6) city and county license and tax reports reflecting 
business taxes paid throughout 2002; (7) the petitioner's bank statements for May through December 2002; 
(8) copies of recent invoices for goods purchased for sale in the petitioner's store; and (9) invoices for 
telephone service, waste removal service, and a store security system. 
The petitioner issued a request for evidence on June 13, 2003, in part instructing the petitioner to submit 
evidence of business conducted during the past year, such as sales contracts, invoices, bills of lading, shipping 
receipts, orders, and U.S. Customs forms. 
SRC 03 087 53105 
Page 4 
In a response received on September 5, 2003, the petitioner submitted additional invoices for gasoline and 
grocery purchases and copies of previously submitted documents evidencing purchases made, and evidence of 
sales and business taxes paid by the petitioner since May 2002. 
On December 2, 2003, the director denied the petition, concluding that the petitioner had not established that 
it was doing business for the previous year. Specifically, the director determined: "The documentary evidence 
submitted has established that the petitioner has been engaged merely in the purchasing of goods and 
services." 
On appeal, counsel for the petitioner asserts that the director overlooked the evidence submitted to establish 
that the petitioner is doing business, misapplied the law to the facts of this case, or confused the facts of this 
1 case with another matter. Counsel asserts that the petitioner acquired an existing business in May 2002 and 
has been engaged in the regular, systematic, and continuous provision of goods and services since that time. 
Upon review, the director's determination that the petitioner was merely purchasing goods will be withdrawn. 
The petitioner has submitted sufficient evidence to establish that the U.S. entity was doing business at the 
time of filing as defined at 8 C.F.R. 9 214.2(1)(l)(ii)(H). Although the director noted that the petitioner had 
only provided evidence that it purchased inventory, it is reasonable to assume that the petitioner has regularly 
purchased gasoline and merchandise for its store because it is, in fact, replenishing goods that were sold in the 
regular course of doing business. 
However, the petitioner is required to establish that it has been doing business for the previous year, since the 
approval of the initial petition authorizing the beneficiary to open a new office. See 8 C.F.R. 
3 214.2(1)(14)(ii)(B). In this case, the beneficiary was granted a one-year period of stay in L-1A status 
commencing on February 6, 2002. Although the director requested evidence that the petitioner was doing 
business for the previous year, the petitioner did not document any business activity prior to the purchase of 
the gas station and convenience store on or about May 2, 2002. The petitioner has submitted no evidence that 
it was doing business during the months of February, March, and April 2002. Accordingly, the petitioner has 
not established that it was doing business for the previous year. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the record is not persuasive in demonstrating that the beneficiary would 
be employed in a managerial or executive capacity as defined at section 101(a)(44) of the Act. The petitioner 
has provided only a vague job description for the beneficiary that fails to convey an understanding of what 
types of duties he will perform on a daily basis. For example, the petitioner indicated in an attachment to 
Form 1-129 that the beneficiary devotes a total of 30 percent of his time to "overseeing preparation of sales 
and inventory reports" and "reviewing financial reports," yet failed to identify who actually prepares the 
reports, if not the beneficiary. The petitioner stated that the beneficiary devotes twenty percent of his time to 
"establishing and implementing policies to manage and achieve market goals," but did not further describe the 
beneficiary's policies or goals. The beneficiary is described as allocating an additional 30 percent of his time 
1 Counsel notes that the director's decision refers to receipt number SRC 03 087 53108 rather than SRC 03 
087 53105. This error, while regrettable, appears to be merely typographical in nature. The record of 
proceeding is complete and in order, and there is no reason for the AAO to suspect that the director 
mistakenly considered evidence submitted with another matter in reaching her determination. 
SRC 03 087 53 105 
Page 5 
to "managing the company," and "maintaining and keeping good relations with the customers in addition to 
the vendors." Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 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's job description for 
the beneficiary does not allow the AAO to determine the duties performed by the beneficiary, such that they 
could be classified as managerial or executive. 
The regulation at 8 C.F.R. 214.2(1)(14)(ii)(D) also requires the petitioner to submit a statement describing the 
staffing of the new operation, including the number of employees and types of positions held accompanied by 
evidence of wages paid to employees when the beneficiary will be employed in a management or executive 
capacity. In support of the initial petition, the petitioner indicated that it employed eight workers and the 
petitioner submitted its Tennessee Department of Labor and Workforce Development Premium Report for the 
fourth quarter of 2002, which shows that the petitioner paid wages to eight employees, including the 
beneficiary. The beneficiary and two other employees received wages commensurate with full-time 
employment, while the remaining five employees earned between $150 and $1200 during the three-month 
period. In her June 13, 2003 request for evidence, the director instructed the petitioner to provide a copy of its 
organizational chart. In response, the petitioner submitted a chart depicting the beneficiary as "executive 
managerlpresident," a morning shift manager, an evening shift manager, two cashiers, a cashierhelper, and 
four individuals identified as "cashier/stoker." None of the employees named on the organizational chart 
appear on the petitioner's quarterly report for the fourth quarter of 2002. Accordingly, the AAO cannot 
determine what positions were filled at the time the petition was filed, whether the beneficiary supervised any 
supervisory or professional employees, or whether the subordinate staff, which was comprised primarily of 
part-time employees working between three and 18 hours per week, was sufficient to relieve the beneficiary 
from performing non-qualifying first-line supervisory andlor operational duties. 
Based on the petitioner's failure to provide a comprehensive description of the beneficiary's duties or a 
consistent description of its staffing at the time the petition was filed, the petitioner has not established that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. For this additional reason, the petition will not be approved. 
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 of the grounds for denial in the initial decision. See 
Spencer Entelprises, Znc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 3 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.