dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. 3000 
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 Washington, DC 20529 
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Office: TEXAS SERVICE CENTER 
0 G 5006 
Date: $E? 4 w 
SRC 04 01 1 50879 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)Q of the Immigration 
and Nationality Act, 8 U.S.C. 9 I 10 1 (a)(l5)(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 ofice. 
&&strative ~~~eds Office 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Adrmnistrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonirnmigrant 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 1 101 (a)(15)(L). The petitioner, a Texas corporation, is engaged in the operation of 
a gas station and convenience store. The petitioner claims that it is the affiliate of Pal Electronics Systems, 
located in Thane, India. The beneficiary was initially granted a one-year period of stay to open a new ofice 
in the United States and the petitioner now seeks to extend the beneficiary's status for three years. 
The director denied the petition concluding that the petitioner did not establish: (1) that the U.S. company 
was doing business for the previous year; or (2) that the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity. 
The petitioner subsequently filed the instant 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 asserts that the U.S. 
company was doing business at the time the petition was filed and has continued to do business since August 
2003. Counsel further asserts that the beneficiary performs solely executive and managerial duties and does 
not participate in the day-to-day operations of the petitioner's business. Counsel contends that the director 
placed undue emphasis on the size of the petitioning company without considering the reasonable needs of the 
business. Counsel submits a brief and additional evidence 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)Q of the Act. Specifically, a qualifjrlng organization must have employed the 
beneficiary in a qualifjrlng 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 qualifjmg 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 qualifjmg organization within the three years preceding the filing of 
the petition. 
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 regulation at 8 C.F.R. 9 214.2(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 qualifjmg organizations 
as defined in paragraph (l)(l)(ii)(G) of thls 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 managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The first issue in this proceeding is whether the petitioner established that it has been doing business for the 
year preceding the filing of the instant petition as required by 8 C.F.R. 9 214.2(1)(14)(ii)(B). The term 
"doing business" means the regular, systematic, and continuous provision of goods andlor services by a 
qualifllng organization and does not include the mere presence of an agent or office. 8 C.F.R. $ 
2 14.2(1)(1)(ii)(H). 
The nonimmigrant petition was filed on October 15, 2003. The beneficiary's "new office" petition was 
previously granted for a one-year period commencing on October 16, 2002. In support of the initial petition, 
the petitioner submitted: (1) a bill of sale for a business known as "Handi Stop #65," indicating that the 
petitioner purchased the business on August 1, 2003; (2) its Texas Sales and Use Tax Permit to operate a 
convenience stare, commencing on July 14, 2003; (3) copies of state-issued permits for the sale of food 
products, tobacco products, alcoholic beverages, and lottery tickets, dated between July and September 2003; 
(4) a certificate of operation under an assumed name dated July 8,2003; (5) a summary of monthly sales for 
2003, identifying August 2003 as the first month of activity for the business; (6) copies of bank statements for 
the period of September 2002 through September 2003; and (6) an income statement showing store revenues 
of $180,780 for the two months ending September 30,2003. 
On November 22,2003, the director issued a request for additional evidence, in part instructing the petitioner 
to submit evidence of the business conducted by the petitioner during the past year, such as sales contracts, 
invoices, bills of lading, shipping receipts, and orders. 
In a response dated January 27, 2004, counsel for the petitioner stated that the U.S. company began 
conducting business in August 2003. The petitioner submitted copies of invoices for inventory purchased, 
copies of monthly sales and use tax returns, and other documentary evidence to establish that the company 
has been doing business since August 2003. 
The director denied the petition on June 8, 2004, concluding that the petitioner had not been doing business 
for the previous year as required by 8 C.F.R. § 214.2(1)(14)(ii)@). Specifically, the director observed: "The 
evidence submitted shows a large number of invoices the beneficiary received from vendors for goods 
purchased by the petitioner. The petitioner does not provide evidence to show that it has a continuous, 
regular, systematic provision of services or goods." 
The petitioner filed the instant appeal on July 12,2004. On appeal, counsel for the petitioner asserts that the 
petitioner commenced its business operations in August 2003 and "from that commencement date to today 
has continued operating its business without any interruption." Counsel emphasizes that the petitioner was 
clearly doing business as of the date the petition was filed, and had been conducting business regularly, 
systematically and continuously since August 2003. Counsel submits copies of bank statements, purchase 
invoices, sales and use tax returns, utility bills, business licenses and permits and the petitioner's 2003 
corporate tax return and financial statements as evidence that the company has been doing business since 
August 2003. 
Upon review, the petitioner has not established that it has been doing business for the previous year as 
required by 8 C.F.R. 5 214.2(1)(14)(ii)@). 
The AAO acknowledges that the petitioner has been doing business since August 2003. However, when 
seeking to extend a petition that involved a "new office," the petitioner is not required to merely demonstrate 
that it is doing business at the time of the request for an extension of the beneficiary's initial "new office" 
petition. The regulations specifically require the petitioner to establish that it has been doing business 
throughout the previous year. 
When a petition indicates that a beneficiary is coming to the United States to open a "new office," it must 
show that it is ready to commence doing business immediately upon approval. At the time of filing the initial 
petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired sufficient 
physical premises to commence business, that it has the financial ability to commence doing business in the 
United States, and that it will support the beneficiary in a managerial or executive position within one year of 
approval. See generally, 8 C.F.R. § 214.2(1)(3)(~). If approved, the beneficiary is granted a one-year period 
of stay to open the "new office." 8 C.F.R. 4 214.2(1)(7)(i)(A)(3). At the end of the one-year period, when the 
petitioner seeks an extension of the "new ofice" petition, the regulation at 8 C.F.R. 214.2(1)(14)(ii)@) 
requires the petitioner to demonstrate that it has been doing business "for the previous year" through the 
regular, systematic, and continuous provision of goods or services. See 8 C.F.R. § 2 1 4.2(1)(l)(ii)(H) (defining 
the term "doing business"). The mere presence of an agent or office of the qualifying organization will not 
suflice. Id. 
The L-IA nonimrnigrant visa is not an entrepreneurial visa classification that would allow an alien a 
prolonged stay in the United States in a non-managerial or non-executive capacity to start up a new business 
or search for business opportunities. CJ: Sections 101(a)(15)(B) and 10 1 (a)(15)(E) of the Act (defining the B- 
1 business visitor and the E-2 treaty investor nonimmigrant visa classifications). The regulations allow for a 
one-year period for a "new office" petitioner to commence doing business and develop to the point that it will 
support a managerial or executive position. By allowing multiple petitions under the more lenient standard, 
CIS would in effect allow foreign entities to create under-funded, under-staffed or even inactive companies in 
the United States, with the expectation that they could receive multiple extensions of their L-1 status without 
primarily engaging in managerial or executive duties. The only provision that allows for the extension of a 
"new office" visa petition requires the petitioner to demonstrate that it is staffed and has been "doing 
business" in a regular, systematic, and continuous manner for the previous year. 8 C.F.R. 3 214.2(1)(14)(ii). 
Upon review of the current petition, it is apparent that the petitioner was not prepared to commence doing 
business upon approval of its initial new office petition. At the time the initial "new office" petition was 
approved, the beneficiary was present in the United States as B-2 nonimmigrant tourist. It is unclear what 
the petitioner and beneficiary were doing in the United States between the approval of the previous petition in 
October 2002 and August 2003, when the petitioner began operating the gas station and convenience store. 
If the beneficiary was simply exploring business opportunities or looking for an investment for nine months, 
this would constitute the "mere presence of an agent or office" and would not constitute the regular, 
systematic, and continuous provision of goods or services. See 8 C.F.R. 3 214.2(1)(l)(ii)(H). The petitioner 
has not provided any explanation for this lengthy delay in commencing its operations. 
The petitioner has not submitted evidence on appeal to overcome the director's decision on this issue. For 
this reason, the appeal will be dismissed. 
The second issue in the present matter is whether the beneficiary will be employed by the United States entity 
in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 3 1 10 1 (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 
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 
Page 6 
(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. fj 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. 
In an addendum attached to the Form 1-129 Petition, the petitioner described the beneficiary's duties as 
follows: 
The Beneficiary will continue to be employed as the President of the Petitioner, and will be 
responsible for performing the following duties; supervise and oversee subordinate 
employees; overseeing preparation of sales and marketing reports; reviewing and analyzing 
sales data; establishing and implementing policies to manage and achieve marketing goals; 
review financial reports; review budgets and expense reports prepared by subordinate 
employees; managing the company; and overseeing marketing campaigns developed by 
subordinate managers. 
In the performance of her duties, the Beneficiary will receive minimum supervision from the 
Board of Directors, and the Beneficiary will exercise wide discretion and latitude in the 
performance of his [sic] duties. 
In support of the petition, the petitioner provided a copy of its Texas Form C-3, Employer's Quarterly Report, 
for the third quarter of 2003, confirming the employment of the beneficiary and four other workers as of 
September 30,2003. 
On November 22, 2003, the director requested additional evidence, including, in part: (1) a definitive 
statement describing the beneficiary's employment including a list of all duties and the percentage of time 
spent on each duty; (2) the number of subordinate managers/supervisors who report to the beneficiary, 
including their job titles, duties and educational background, or, if applicable, the essential function managed 
by the beneficiary; (3) an explanation as to who provides the product sales/services of the business; and (4) 
an organizational chart for the U.S. entity. 
In a response letter dated January 26,2004, the petitioner provided the following position descriptions for the 
beneficiary and her claimed subordinates: 
[The beneficiary], President 
Duties will include: Ten percent (10%) of her time to supervise and oversee subordinate 
employees; Fifteen percent (15%) overseeing preparation of sales and marketing reports; 
Fifteen percent (15%) reviewing and analyzing sales data; Fifteen percent (15%) 
establishing and implementing policies to manage and achieve marketing goals; Fifteen 
percent (15%) review financial reports, budgets and expense reports prepared by 
subordinate employees; Fifteen percent (15%) managing the company; and Fifteen percent 
(1 5%) overseeing marketing campaigns developed by subordinate managers. The beneficiary 
is responsible for supervising one (1) store manager. The Beneficiary is responsible for 
seeking additional retail locations for the Petitioner, thus the Beneficiary directs the major 
component or function of the Petitioner's efforts to expand its retail operations. 
Amir K. Maknojia, Store Manager 
Duties Include: locating vendors; resolving issues relating to defective or unacceptable 
goods with vendors; purchase inventory; supervise subordinate employees; preparing 
employee work schedule; preparing and maintaining inventory report; prepare sales report; 
preparing budget and expense reports; maintain records of underground petroleum storage 
tanks in accordance with state and federal environmental laws; reconcile all accounts and 
prepare daily sales report. Mr. Maknojia has a college education and has over five years 
experience in Management. 
Zubeda K. Dholsaniya, Assistant ManagerJCashier 
Duties Include: assist in preparing employee work schedule; maintainlorder inventory; 
preparing maintaining inventory report; prepare sales report; and assist in preparing budget 
and expense reports; reconcile all accounts and assist in preparing daily sales report; and 
operate cash register and credit card machine. 
Michelle Luna Aleem, Cashier 
Duties Include: operate cash registerlcredit card machine; maintain business premises; and 
reconcile daily cash with sales receipts. 
Zarina Manesiya, Cashier 
Duties Include: operate cash registerlcredit card machine; maintain business premises; and 
reconcile daily cash with sales receipts. 
The petitioner re-submitted its Texas Employer's Quarterly Report for the third quarter of 2003, which 
confirms the employment of the named employees as of September 2003. 
Page 8 
On June 8, 2004, 2004, the director denied the petition concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director observed that the beneficiary would have to engage in the day-to-day functions of the 
business given the current structure of the company and the payroll data submitted. The director further 
found that the beneficiary would not be functioning at a senior level within an organizational hierarchy, 
supervising managerial or professional employees, or managing an essential function of the organization. 
On appeal, counsel for the petitioner disputes the director's decision and asserts that the beneficiary will 
perform solely managerial or executive duties. Counsel contends that the director placed undue emphasis on 
the small size and nature of the business in concluding that the petitioner cannot support a managerial or 
executive position, asserting, "a typical corporation that operates retail business does not normally hire more 
than four to five workers, and someone has to be the manager of all the retail businesses. Yet the District 
Director's position is that a retail store cannot hire a manager." On appeal, counsel repeats the job 
description previously provided by the petitioner and further explains: 
By overseeing preparation of sales and marketing reports, and reviewing an[d] analyzing 
sales data; establishing and implementing policies to manage and achieve marketing goals; 
the Beneficiary will primarily be responsible for managing the Marketing "department, 
function or component" of the Petitioner as he [sic] will devote more than Forty Five Percent 
(45%) of time to these activities. Furthermore, by reviewing financial reports, and reviewing 
budgets and expense reports prepared by subordinate employees; managing the company, 
and overseeing marketing campaign developed by subordinate managers, as well as 
reviewing additional retail locations, the Beneficiary will primarily supervise and control 
other managerial or professional employees, including the Store Manager, who in turn 
oversees a subordinate Employees [sic]. The Beneficiary is responsible for seeking additional 
business locations for the Petitioner, thus the Beneficiary directs the major component or 
hction of the Petitioner's efforts to expand its operations. The Beneficiary does not have 
time to perform day-to-day operations. 
Finally, counsel cites an unpublished AAO decision and several U.S. District Court decisions in support of 
the petitioner's assertion that a small company, including a small retail business, can support a bona fide 
managerial or executive position. 
Upon review of the petition and supporting evidence, the petitioner has not established that the beneficiary 
will be employed in a managerial or executive capacity under the extended petition. 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. § 214.2(1)(3)(ii). The petitioner's descriprion 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 matter, the petitioner does not clarifL whether it claims the beneficiary will be primarily 
engaged in managerial duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under 
section 101(a)(44)@) of the Act. Counsel refers to the statutory definitions of both managerial capacity and 
executive capacity, thus, it appears that counsel intends to represent that the beneficiary will be 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 demonstrate that the beneficiary's 
responsibilities will meet the requirements of one or the other capacity. 
The petitioner has provided a brief description of the beneficiary's job duties and assigned a percentage to 
the amount of time the beneficiary spends performing each described task. On appeal, counsel notes that the 
beneficiary devotes 45 percent of her time to managing the petitioner's marketing "department, function or 
component," including overseeing marketing campaigns, overseeing the preparation of marketing reports, 
and implementing policies to achieve marketing goals. The petitioner operates a gas station and convenience 
store, and, according to its 2003 income tax returns and financial statements, has never spent any money on 
advertising. The petitioner does not indicate that any of the beneficiary's subordinates perform any duties 
related to the petitioner's marketing function. The petitioner has not sufficiently explained the beneficiary's 
marketing goals and policies or described the petitioner's "marketing campaign" such that the AAO can 
determine that the beneficiary plausibly performs any managerial duties related to this function. Collectively, 
the evidence suggests that the beneficiary would not plausibly devote nearly half of her time to managing 
marketing functions as the president of a convenience store with five employees. Doubt cast on any aspect of 
the petitioner's proof may, of course, lead to a reevaluation of the reliability and ~~ciency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
The petitioner indicates that the beneficiary devotes 30 percent of her time to reviewing and analyzing sales 
data, financial reports, budgets and expense reports. Without additional explanation, the AAO cannot 
conclude that reviewing reports rises to the level of managerial responsibility as contemplated by the 
regulations. The petitioner further indicates that the beneficiary manages the "expansion function" by 
"reviewing additional retail locations." However, the petitioner does not indicate how much time the 
beneficiary dedicates to this responsibility, provide any documentary evidence of the petitioner's expansion 
efforts, or describe any specific tasks the beneficiary has undertaken with respect to this function. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not ~~cient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has failed to 
provide any detail or explanation of the beneficiary's activities in the course of her daily routine. The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 
1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Overall, the petitioner's job description is 
insufficient to establish that the beneficiary will be employed in a primarily 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 Sofjci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner also states that the beneficiary receives only minimum supervision from the petitioner's Board 
of Directors and will "exercise wide discretion and latitude in the performance of his duties." These 
statements, in addition to borrowing liberally from the definition of executive capacity, are general and do 
not convey an understanding of the beneficiary's daily duties. Conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1 1 08; Avyr Associates, Inc. v. Meissner, 1 997 WL 1 88942 at "5 (S.D.N.Y.). See also section 1 0 1 (a)(44)(B)(i) 
and (ii). Again, the actual duties themselves reveal the true nature of the employment. Id. at 1108. 
On appeal, counsel for the petitioner asserts that the director erred by emphasizing the number of workers 
employed by the petitioner, noting that the statute and regulations do not impose such a requirement with 
respect to the size of the petitioning organization. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 5 
1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, Citizenship and Immigration Services (CIS) must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. In the present matter, however, the regulations provide strict evidentiary requirements for the 
extension of a "new ofice" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(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 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 from primarily 
performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. 
To establish that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner 
must specifically articulate why those needs are reasonable in light of its overall purpose and stage of 
development. The petitioner operates a gas station and convenience store and employs the beneficiary as 
president, a store manager, an assistant manager/cashier, and two cashiers. Although the petitioner did not 
provide its hours of operation, the AAO will assume arguendo that the gas station/convenience store is open 
daily from 7:00 a.m. to 10:OO p.m. or 105 hours per week. At most, the petitioner employed one manager, 
one "assistant manager" and two cashiers to perform all of the day-to-day functions of ordering merchandise 
and supplies, arranging and stocking merchandise displays, cleaning the store and restrooms, processing 
customer purchases of groceries and gasoline, receiving deliveries, preparing foods, reconciling daily cash 
register receipts and many other routine duties. The petitioner also requires someone to manage its banking 
activities, pay bills, and perform other administrative functions associated with operating a business. In 
addition to these routine duties, the petitioner claims that its manager and assistant manager prepare, sales, 
financial, budget, inventory and expense reports. 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, two managers, and two subordinate staff members. 
Given the absence of employees who would perform the non-managerial or non-executive operations of the 
company, it is reasonable to conclude that the beneficiary would need to spend a significant portion of her 
time directly providing the services of the company, directly supervising low-level employees during the hours 
in which the store manager is not working, andlor preparing many of the reports purportedly assigned to the 
petitioner's "managers." An employee who "primarily" performs the tasks necessary to produce a product or 
to provide services is not considered to be b'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 Intn 'I., 19 I&N Dec. 593, 604 (Comrn. 1988). A 
managerial or executive 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. See Matter of Church 
Scientology International, 1 9 I&N Dec. at 604. 
The petitioner claims that the beneficiary will have supervisory authority over subordinate employees, 
including a store manager who in turn supervises an "assistant store managerlcashier." Although the 
beneficiary is not required to supervise personnel, if it is claimed that she is a manager because her duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. The does not assert that any of its 
employees are professionals. Although the petitioner identifies two layers of "management," given the 
petitioner's limited stafig levels and reasonable needs of the petitioner's business, it has not been 
established that any of the beneficiary's subordinates would be engaged in supervisory or managerial duties 
rather than operational tasks. 
The petitioner may not create artificial tiers of employees to suggest that an organization is sufficiently 
complex to support an executive or manager; instead the petitioner must substantiate that the duties of a 
beneficiary's subordinates correspond to their placement in an organization's structural hierarchy. CIS 
reviews the totality of the record, including the descriptions of a beneficiary's duties and those of 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 compete understanding of a beneficiary's actual role in a 
business, when examining the managerial or executive capacity of a beneficiary. In ths matter, upon review 
of the totality of the record, the petitioner has not established that the beneficiary performs primarily 
executive or managerial duties. 
The AAO acknowledges the petitioner's claim that it is seeking to expand its business to other retail locations. 
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 of Michelin Tire Colp., 17 I&N Dec. 248 (Reg. Comrn. 1978). When a new business is 
established and commences operations, the regulations recognize that a designated manager or executive 
responsible for setting up operations will be engaged in a variety of activities not normally performed by 
employees at the executive or managerial level and that often the full range of managerial responsibility 
cannot be performed. As noted above, the regulation at 8 C.F.R. 8 214.2(1)(3)(v)(C) allows the intended 
United States operation one year withn the date of approval of the petition to support an executive or 
managerial position. In order to qualify for an extension of L-1A nonimrnigrant classification under a petition 
involving a new ofice, the petitioner must demonstrate through evidence, such as a description of both the 
beneficiary's duties and the staff of the organization, that the beneficiary will be employed in a primarily 
managerial or executive capacity. 
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.2 (5th Cir. 1989), and Mars 
Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size 
of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or 
executive capacity. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in National Hand Tool Corp. v. Pasquarell or Mars Jewelers, Inc. v. INS. It is noted that 
both of the cases cited by counsel relate to immigrant visa petitions, and not the extension of a "new office" 
nonimmigrant visa. As the new office extension regulations call for a review of the petitioner's business 
Page 12 
activities and staffing after one year, the cases cited by counsel are distinguishable based on the applicable 
regulations. See 8 C.F.R. § 214.2(1)(14)(ii). 
Counsel also cites Gasboy Texas, Inc. v. Upchurch, 2004 WL 396257 (N.D. Tex.), in which the United States 
District Court found that an AAO decision was not due deference because the administrative record was 
"shoddy" and haphazardly assembled and because the AAO decision did not address a letter submitted by the 
petitioner. Without discussing the applicable statute and regulations, the court summarily concluded that the 
"president and general manager" of a gas stationfconvenience store qualified as a manager and executive 
under "8 C.F.R. 214.2(l)(ii) [sic].'' However, the Gasboy decision does not stand for the proposition that 
all gas station managers qualify as a manager or executive under the Act; rather, the court's decision was 
based on an analysis of a specific deficiency in the administrative record. Other than noting that the 
petitioner in the cited case operated a business similar to the business operated by the petitioner in the instant 
matter, counsel did not establish that the facts of the two cases are analogous. Additionally, in contrast to the 
broad precedential authority of the case law of a United States circuit court, the AAO is not bound to follow 
the published decision of a United States district court in matters arising within the same district. See Matter 
of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be 
given due consideration when it is properly before the AAO, the analysis does not have to be followed as a 
matter of law. Id. at 719. Counsel's reference to the Gasboy decision is not persuasive. 
Counsel hrther refers in to an unpublished decision in which the AAO determined that a beneficiary was 
serving in an executive capacity for L-1 classification even though he was the sole employee of the petitioning 
organization. Counsel has hrnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. 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. Furthermore, while 8 C.F.R. fj 103.3(c) provides that AAO precedent decisions are 
binding on all CIS employees in the ahnistration of the Act, unpublished decisions are not similarly 
binding. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily executive or managerial capacity. The fact that an individual operates a business 
does not necessarily establish eligibility for classification in a managerial or executive capacity within the 
meaning of section 10 1 (a)(44) of the Act. The record does not establish that a majority of the beneficiary's 
duties will be directing the management of the organization or that she will be primarily supervising a 
subordinate staff that would relieve her from performing the non-qualifymg duties of operating a gas station 
and convenience store. The provided description of the beneficiary's duties is in~~cient to demonstrate that 
the beneficiary is primarily acting in a qualikng managerial or executive capacity. For this additional 
reason, the appeal will be dismissed. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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. fj 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.