dismissed L-1A Case: Retail

pUBLIc COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: LIN 03 237 5 1365 Office: NEBRASKA SERVICE CENTER Date: JUL 0 3 2006 
IN RE: 
 Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(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. 
Robert P. Wiemann, C ief 
w 
pdministrative Appeals Office 
LIN 03 237 5 1365 
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DISCUSSION: The Director, Nebraska 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 nonirnmigrant petition seeking to extend the employment of its president as an L-1A 
nonirnmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1 101(a)(15)(L). The petitioner alleges that it is a corporation organized under the 
laws of the States of Georgia and Kansas and claims to be engaged in operating a gas station and convenience 
store. The petitioner claims that it is the subsidiary of H.H. & Company, located in Hyderabad, India. The 
beneficiary was initially granted a one-year period of stay to open a new office in the United States and the 
petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not demonstrate that (1) the beneficiary was 
employed abroad in a primarily managerial, executive, or specialized knowledge capacity for the requisite 
one-year and (2) the company was well enough established to support an executive position. 
The petitioner subsequently filed an 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 (1) the 
beneficiary was employed in a "managerial capacity" with the parent company for more than one year prior to 
his admission to the United States, (2) the beneficiary is employed in an "executive capacity" with the U.S. 
entity, and (3) the previous L-1A petition was not approved in error. In support of this assertion, the 
petitioner submits additional evidence. 
To establish eligibility for the L-1 nonirnmigrant 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 adrmssion 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. § 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 qualifiing organizations as defined in paragraph (I)(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. 
LIN 03 237 51365 
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(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 hidher 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. 4 214.2(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 1-1 29, 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 managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary was employed in a primarily managerial or 
executive capacity abroad for at least one year in the three years preceding his admission to the United States. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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, hnction, 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 with the organizational hierarchy or with respect to the 
function managed; and 
LIN 03 237 5 1365 
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(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. 5 1 101(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 fiom higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, the petitioner described the beneficiary's job duties with the foreign entity as follows: 
As Partner and General Manager he managed all the commercial, financial and marketing 
aspects of the parent company. On behalf of our company, he negotiated purchasing and 
financial agreements with distributors and manufacturers. He was responsible for the 
supervision of the sales department. He determined sales goals and objectives, and the 
strategic means to meet the company sales and marketing goals. He was responsible for 
training, promotion, hiring and firing of sales personnel. He created an outstanding customer 
service policy in our parent company that led to a tremendous success for our parent 
company. He was determined and demanded nothing less from all the staff than excellence 
in the service and products provided to our parent company customers. 
On September 3, 2003, the director requested additional evidence. Specifically, the director requested (1) 
explanations for several discrepancies in the record, including ownership of the U.S. entity, where the U.S. 
company is incorporated, and the beneficiary's offered salary as compared to actual compensation received to 
date, (2) a more detailed description of the beneficiary's job duties abroad, including a percentage breakdown 
of the time spent on each duty, (3) an organizational chart for the foreign entity for the period the beneficiary 
was employed, which includes the positions, employees, and a brief description of each employee's job duties, 
(4) a more detailed description of the beneficiary's job duties with the U.S. entity, including a percentage 
breakdown of the time spent on each duty, (5) an organizational chart for the U.S. entity, including each 
employee's name, title, duties, and salary, (6) the hours of operation for the U.S. entity, (7) a copy of the 
employee work schedule for the U.S. entity, (8) copies of each employee's 2002 W-2 Forms, and (9) an 
explanation of the relationship between the U.S. entity and the sub-sublessor of its place of business. 
LIN 03 237 51365 
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In response, the petitioner submitted (1) explanations for discrepancies in the record, (2) descriptions of the 
beneficiary's job duties with the parent company and with the U.S. entity, (3) organizational charts for both 
the U.S. and foreign entities, (4) information on the U.S. entity's business hours, (5) information on the hours 
worked by each employee at the U.S. entity, except for the beneficiary, (6) a copy of the 2002 W-2 Forms for 
the beneficiary and one employee, and (7) a brief explanation of the relationship between the U.S. entity and 
the sub-sublessor of its place of business. Specifically, with regard to the beneficiary's foreign job duties, the 
petitioner submitted a letter from its foreign parent, H.H. & Company, dated November 12, 2003, which 
states that the beneficiary was employed as a "Partner and General Manager" from 1992 until 2001 with the 
following responsibilities: 
[The beneficiary] directed the staffing and training of our personnel, and conducted 
performance evaluations of employees. He made decisions on hlring, promotion and 
termination of employees. (1 5% of time). 
[The beneficiary] analyzed sale[s] statistics to assist in formulating our company policy and 
business objectives. He reviewed marke[t] analyses to determine customer needs, volume 
potential, price schedules and discount rates. He prepared periodic sales reports showing 
sales volume and potential sales. (45% of time). 
He developed sales campaigns and our company advertising strategy. (1 5%) 
[The beneficiary] represented our company at trade shows. 
 He performed market and 
manufacturer research to obtain the most advantageous contracts. He negotiated financial 
and purchasing agreements with product manufacturers and distributors. (25% of time). 
In addition, on the organizational chart for the foreign entity, besides the beneficiary and his partner the only 
other positions listed were sales clerks and stockers. The job descriptions given for these subordinate 
positions were: 
SALES CLERK: 
- Total price on merchandise purchased by customers and accept payment. 
- Answer customers' questions 
- Record amount of cash in register at the end of shift. 
- Stock shelves and counters with merchandise. 
- Mark price on merchandise. 
- Receive, open and unpac[k] cartons or crates of merchandise as necessary[.] 
STOCKERS: 
- Inventory, stock and price merchandise. 
- Receive, open and unpac[k] cartons or crates of merchandise. 
On January 20, 2004, the director denied the petition. The director concluded that (1) "the beneficiary was 
not employed by the petitioner in a managerial, executive, or specialized knowledge capacity for the requisite 
LIN 03 237 51365 
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one-year within the three years prior to the filing of the instant petition" and (2) "the petitioner lacks the 
organizational complexity for the beneficiary's position [of president] to be considered truly that of an 
executive." 
On appeal, counsel for the petitioner asserts that (1) the "petitioner has established that . . . the beneficiary 
was continuously employed by the foreign entity, in a 'managerial capacity"' for the requisite period of time; 
(2) the "petitioner has also established that the beneficiary is currently employed in the United States in 
executive capacity;" and (3) "the petitioner has established that its initial petition for L-1A status was properly 
approved by the Service." 
Upon review, counsel's assertions are not persuasive. 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) and (iv). The petitioner's description of the job duties must clearly describe the duties 
performed by the beneficiary abroad as well as those to be performed with the U.S. entity and indicate 
whether such duties are either in an executive or managerial capacity. Id. The petitioner must specifically 
state whether the beneficiary was and will be primarily employed in a managerial or executive capacity. A 
petitioner cannot claim that some of the duties of the position entail executive responsibilities, while other 
duties are managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely 
on partial sections of the two statutory definitions. 
In this instant matter, in its letter dated July 29, 2003 the petitioner claims that the beneficiary served as an 
"executive" with the parent company. In the parent company's letter of November 12, 2003, however, the 
beneficiary is described as being the "General Manager" and, on appeal, counsel for the petitioner claims the 
beneficiary was employed abroad in a "managerial capacity." If a petitioner chooses to represent the 
beneficiary as being both an executive and a manager, it must then establish that a beneficiary meets each of 
the four criteria set forth in the statutory definition for executive and the statutory definition for manager. 
With regard to the beneficiary's job duties with the foreign entity, on review, the petitioner has provided only 
a vague and nonspecific description, which fails to demonstrate what the beneficiary did on a day-to-day 
basis. For example, the petitioner states that the beneficiary's duties included "determined sales goals and 
objectives," "[determined] strategic means to meet the company sales and marketing goals," and "created an 
outstanding customer service policy in our parent company." The petitioner did not, however, define (1) the 
sales goals and objectives developed and implemented by the beneficiary and (2) the customer service policy 
created by the beneficiary. 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. Cornm. 1972). 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 Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 
905 F.2d 41 (2d. Cir. 1990). 
In addition, the petitioner describes the beneficiary as "negotiat[ing] purchasing and financial agreements with 
distributors and manufacturers," "prepar[ing] periodic sales reports," "representing [the] company at trade 
shows," and "perform[ing] market and manufacturer research." Since the beneficiary actually negotiates the 
LIN 03 237 5 1365 
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contracts, prepares sales reports, attends trade shows, and performs market research, he is performing tasks 
necessary to provide a service or product and this duty will not be considered managerial or executive in 
nature. 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). 
Furthermore, even though the petitioner claims that the beneficiary "managed all the commercial, financial, 
and marketing aspects" as well as "supervis[ed] the sales department," it does not claim to have anyone on its 
staff to actually perform the commercial, financial, marketing, and sales functions. In fact, the petitioner 
describes the beneficiary's subordinates as responsible for operating the cash register, answering customer 
questions, and handling inventory control and purchases. Therefore, based on the record before the director, 
the beneficiary will only spend approximately 15% of his time performing managerial duties ("direct[ing] the 
staffing and training of our personnel [sic] 15%"). Moreover, as the petitioner claims that the beneficiary 
"managed" and "supervis[ed]" activities he does not have the staff to perform, the AAO is left to question the 
validity of the petitioner's claim and the remainder of the beneficiary's claimed duties. Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
While the petitioner on appeal claims that one of its sales clerks was a supervisor, there is no indication in the 
record before the director that this was the case. The petitioner was put on notice of required evidence and 
given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. The 
petitioner failed to submit the evidence it now provides on appeal, and the AAO will not consider this 
evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 
I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of proceeding before the 
director. Thus, although the petitioner asserts that the beneficiary managed a subordinate staff, the record 
does not establish that the subordinate staff is composed of supervisory, professional, or managerial 
employees. See section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be 
acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees 
supervised are professional. Section 101(a)(44)(A)(iv) of the Act. Because the beneficiary supervised a staff 
of non-professional, non-supervisory, and non-managerial employees (sales clerks and stockers), the 
beneficiary cannot be deemed to have been primarily acting in a managerial capacity. 
Accordingly, the petitioner has not established that the beneficiary was primarily employed in a managerial or 
executive capacity with the foreign entity for one continuous year, as required by 8 C.F.R. 9 214.2(1)(3). 
While the director did not explicitly base his denial on the failure of the petitioner to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity, he did discuss this issue at 
length and, on appeal, counsel for the petitioner also raised the issue. Therefore, the AAO will address this 
additional issue in the present matter regarding whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
In the initial petition, the petitioner described the beneficiary's job duties as follows: 
LIN 03 237 51365 
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President and CEO of the [U.S.] subsidiary and in charge of marketing, finance, 
administration and management[, clontracts and bank negotiation. Expand and administer 
the operations. Hire and fire employees. 
* * * 
[The beneficiary will be responsible for] business promotion, sales objectives and the 
implementation of procedures for the efficient functioning of the U.S. company. 
* * * 
[The beneficiary will] fulfill the following duties: make key business decisions at his own 
discretion; update the business plan to reflect current market trends and needs; control overall 
financial aspects of the company; conduct general administration affairs of the company; act 
as liaison and representative for the parent company in the U.S.; market the services of the 
parent company; engage in long-term planning and identify business opportunities in the 
US.; direct the business activities and supervise another manager and employees; direct the 
potential expansion of the U.S. operations including devise plans, locating sites, preparing a 
report for the parent company to make a decision about expansion. 
In its response, the petitioner submitted the following additional information on the job duties of the 
beneficiary with the U.S. entity: 
General Administration[:] Responsible for planning, organization, and control of 
administrative aspects of Saheb International, Inc. Supervises the store manager who 
executes the administrative policies and functions. Plans and develops corporate, labor and 
public policies designed to improve the company's image and relations with customers. 
Responsible for the day-to-day operations of the company. (Average time spent: 50%) 
Acquisitions and Financial Aspects[:] Responsible for all financial aspects of the company, 
including banking relations, loan negotiations, preparation of specific budgets and forecasts, 
and control of funds. Responsible for the execution of the business expansion plan. 
Responsible for development and execution of expansion strategy. The President is currently 
negotiating the lease of two additional establishments, and exploring the possibility of 
investing in convenience store and gas station business. The President has already 
successfully negotiated the lease of the store that currently makes up Saheb International, Inc. 
The President's duties are to research and analyze business data, locate desirable business 
locations, negotiate the terms of the sales agreement, secure the proper funding, provide and 
direct trained staff to run the stores. (Average time spent: 30%) 
Human Resources[:] Responsible for hiring and termination of employees. (Average time 
spent: 5%) 
Sales and Marketing[:] Design the sales and marketing plans that will support the sales 
efforts of the company stores. 
 Establish marketing plan structure. 
 Set budget for the 
marketing plan. Attend trade shows and establish presence in the wholesale/retail field. 
(Average time spent: 1 5%) 
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In addition, the petitioner claims the beneficiary manages three cashiers as well as a "Store Manager," who 
has the following duties: 
Manages the convenience store and gas station. Plans and prepares work schedules and 
assigns employees duties. Coordinates sales promotion activities and prepares merchandise 
displays and advertising. Prepares requisitions to replenish merchandise on hand. 
Formulates pricing policies on merchandise according to requirements for profitability of 
store operations. Answers customers' complaints and inquiries. 
 Supervises the work of 
subordinates, or performs their work as needed. 
On appeal counsel for the petitioner claims that the "beneficiary is [and will be] employed in an 'executive 
capacity' in the United States entity." 
Upon review, counsel's assertions are not persuasive. 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. 
2142(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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. 
In this matter, although counsel for the petitioner asserts on appeal that the beneficiary's position is primarily 
executive, it appears from the job duties provided in the record that the petitioner is attempting to meet the 
standards for both "managerial capacity" and "executive capacity" as defined by the Act. If a petitioner 
chooses to represent the beneficiary as being both an executive and a manager, it must then establish that a 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the statutory 
definition for manager. 
In its attempt to meet the standards for "managerial capacity" and "executive capacity," rather than providing 
a specific description of the beneficiary's duties, the petitioner generally paraphrased the statutory definitions 
of managerial capacity and executive capacity. See section lOl(a)(44)(A) and (B) of the Act, 8 U.S.C. 9 
1 10 1 (a)(44)(A) and (B). For instance, the petitioner depicted the beneficiary as "responsible for [sic] control 
of administrative aspects," "supervis[ing] the store manager," "[rlesponsible for hiring and tenninat[ing] 
employees," "mak[ing] key business decisions at his own discretion," and "[planning] and develop[ing] 
corporate, labor and public policies." However, conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient to meet the petitioner's burden of proof. 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. 1 103, 1 108 (E.D.N.Y. 1989), aff d, 905 F. 2d 4 1 (2d. Cir. 1990); Avyr Associates Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
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In addition, even though the petitioner claims that the beneficiary is "in charge of marketing, finance, 
administration and management," it does not claim to have anyone on its staff to actually perform the majority 
of these duties. Specifically, in describing the job duties of the store manager, the petitioner indicates that he 
is only responsible for work schedules, basic sales activities (setting up displays and advertisements), 
inventory, pricing, customer complaints, and supervising the cashier on duty. The cashiers only handle sales 
of goods, restocking shelves, and putting prices on items. Therefore, based on the record before the director, 
it appears that the beneficiary will actually implement marketing plans, such as attending trade shows, handle 
financial aspects of the company, such as loans, the budget, financial forecasts, lease negotiations, and control 
of funds, and other administrative aspects not handled by the store manager, such as maintenance and repairs, 
payroll, payment of services owed, and other accounting functions and, thereby, will perform tasks necessary 
to provide a service or product. As indicated above, 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). 
It should be noted for the record that in its letter dated November 22, 2003, counsel for the petitioner asserts 
that the beneficiary will receive in 2003 slightly more than the proffered annual salary of $30,000.00 and, in 
fact, "has already been compensated "$27,800.00." While only the evidence of record before the director will 
be considered for purposes of determining the beneficiary's eligibility for the benefit sought, the additional 
wage data submitted on appeal taken together with the evidence of record clearly show that the beneficiary's 
total compensation for 2003 was only $24,000.00. Either counsel made a serious miscalculation or it 
attempted to mislead the director with regard to this issue. In either case, the AAO is left to question again 
the validity of any of the petitioner's claims and evidence submitted. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
It should also be noted that, although the director appears to have based his decision partially on the size of 
the enterprise and the number of staff, the director did not take into consideration the reasonable needs of the 
enterprise. As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive capacity, CIS must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. 
At the time of filing, the petitioner was a one-year-old company that operated a gas station and convenience 
store and that claimed to have a gross annual income of $143,000.00. The firm employed the beneficiary as 
president, plus a "store manager" and three cashiers. The AAO notes that two of the five employees have 
managerial or executive titles. As discussed above, the petitioner did not submit evidence that it employed a 
sufficient number of subordinate staff members who would perform many of the actual day-to-day, non- 
managerial operations of the company that are left for the beneficiary to perform. Based on the petitioner's 
representations with regard to the job duties of each employee, it does not appear that the reasonable needs of 
the petitioning company might plausibly be met by the services of the beneficiary as president, one "store 
manager," and three cashiers. Regardless, the reasonable needs of the petitioner serve only as a factor in 
evaluating the lack of staff in the context of reviewing the claimed managerial or executive duties. The 
petitioner must still establish that the beneficiary is to be employed in the United States in a primarily 
LIN 03 237 51365 
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managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) of the Act. Based on the 
reasons discussed herein, the petitioner has not established this essential element of eligibility. 
Overall, the record is not persuasive in demonstrating that the beneficiary has been or will be employed in a 
primarily managerial or executive capacity. The petitioner indicates that it plans to expand its operations in 
the United States, suggesting that it will need to hire additional managers and employees in the future. 
However, the petitioner must establish eligibility at the time of filing the nonirnmigrant 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. Cornrn. 1978). Furthermore, 8 C.F.R. 9 
214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of the 
petition to support an executive or managerial position. There is no provision in U.S. Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business is 
not sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the 
instant matter, the petitioner has not established that it has reached the point that it can employ the beneficiary 
in a predominantly managerial or executive capacity or that it can even pay the proffered salary for such a 
position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. 3 2 14.2(1)(3). 
The third issue in this proceeding is the approval of the previous L-1A petition (SRC-02-239-50928) and its 
effect on the current matter. 
In its decision, the director stated that the "Service is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous." 
Matter of M--, 4 I&N Dec. 532 (A.G. 1952; BIA 1952); Matter of Khan, 14 I&N Dec. 397 (BIA 1973), by 
extension. 
On appeal, counsel for the petitioner states that "the prior petition was not approved in error" and that "it 
appears inappropriate that the Service is now questioning or challenging its own work and decision in order to 
validate the denial of the L-1A extension request." Counsel also states that "the Service should not be allowed 
to rely on its assertions of error in granting the initial petition to support the denial of the petitioner's request 
for extension of L-1 status." 
Upon review, counsel's assertions are not persuasive. The director's decision does not indicate whether he 
reviewed the prior approval of the beneficiary's initial L-1A nonirnmigrant status. If the previous 
nonirnmigrant petition was approved on the same unsupported and contradictory assertions in the current 
record, the approval would constitute material and gross error on the part of the director. The AAO is not 
required to approve applications or petitions where eligibility has not been demonstrated, merely because of a 
prior approval that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N 
Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged 
errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
LIN 03 237 5 1365 
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Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved a nonirnmigrant petition on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). Therefore, the approval of the beneficiary's initial L-1A status 
(SRC-02-239-50928) will have no bearing on this matter; the appeal will be adjudicated based on the record 
of proceeding before the director. 
Finally, it should also be noted for the record that the petition in this case was filed on August 4, 2003, one 
day after the expiration of the L-1A status of the beneficiary. According to 8 C.F.R. § 214.2(1)(14)(i), "[a] 
petition extension may be filed only if the validity of the original petition has not expired." For this reason, 
the director may not grant the requested extension of stay. 
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. 9 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.