dismissed L-1A Case: Retail

identifyingdatadeletedto, .',
preventclearlyunw~ted\ ,
invasionof personalpnwql
PUBLICCOpy ,
U.S. Department of HOIueland Security
20 Massachusetts Ave. N.W., Rrn. 3000
Washington , DC 20529
U.S. Citizenship
and Immigration
Services
D '1
'.
File: EAC 07 077 50383 Office: , VERMONT SERVICE CENTER Date: nEe 21'2001
INRE: ,Petitioner:
,Beneficiary :
Petition: Petition for a Nonimmigrant Worker Pursuant to Seet'ion IOI(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(l5)(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.
f
ROb~r · ·
Administrative Appeals Office
(
.'
www.uscis.gov
EAC 07 077 50383
Page 2
; ,
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DISCUSSION: The Director , Vermont 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 non immigrant petition seekingto extend the employment of its president and general
manager as an L -IA nonimmigrant intracompany transferee pursuant to sect ion 101(a)(l5)(L) of the, , 1
Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(l5)(L) . The petitioner, a Texas limited
liability company , states that it operates a gas station and convenience store. The petitioner claims that it is the
subsidiary of Regent Trade Links, located in India. The beneficiary was initially granted one year in L-IA
status to open a new of~ce -in the United States and the petitioner now seeks to extend his stay for two
additional years.
The director denied the petition concluding that the petitioner did not establish thatthe beneficiary would be
employed by the U.S. 'entity in a primarily managerial or executive capacity under the extended petition. '
; • i .
The ' petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion arid
forwarded the appeal to the AAO for review. On appeal , counsel for the petitioner asserts that the director
erroneously determined that the beneficiarywill not serve in a managerial or executive capacity. Counsel
reiterates the previously -provided job description ' for the beneficiary and contends that the director
unreasonably assumed that the beneficiary's subordinates would not be professional-level employees. Counsel
". I
submits a briefin support ofthe appeal. '
)
To establish eligibility for the L-l nonimmigrant visa classification , the petitioner must meet the 'criteria
outlined in section 101(a)(l5)(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. § 214,2(1)(3) states that an individual petition filed on Form 1-129 shall be
, accompanied by: ~
',(i) Evide~ce that the petitioner and the ,organization which employed orwill employ the
alienare qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this section.. . . '. . .
(ii) Evidence that the alien will be employed in an executivev managerial , or specialized
, \ '
, knowledge capacity, including a detailed description of the services to be ~erformed.
(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
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EAC 07077 50383
Page 3
education , trammg, and employment qualifies himlher 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. § 214 .2(l)(l4)(ii) also provides that a visa petition , which involved the operi ing of a
new office , maybe 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)(1)(ii)(G) of this section;
(B) . Evidence 'that the United States entity has been doing business as defined m
paragraph (l)(1)(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 willyei-fon:n under the extended petition;
(D) . A statement describing the staffing of th~ new operation, including thenumberof
employeesand 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 sole issue addre ssed by the director IS whethet the beneficiary will be employed by the United States
entity in a primarily managerial or executive capacity . '
Section lOl(a)(44)(A) of the ACt, 8 U.S.c. § '1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
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\
(i) manages the organization, or a department , subdivision" function , or component of
the organization ;'
supervises and controls the work 'of other supervisory, professional , or managerial
.employees ;' or manages an esserttial function within the organization, or a department
or subdiv ision 'ofthe 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 notions (such as
promotiori and leave authorization) ; orif 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 operati,ons of the activity or function 'for
which the employee has authority. : A first line supervisor is not considered to be .
i .
EAC 07 077 50383
Page 4
acting in a managerial capacity merely by 'virtu e of the supervisor's supervisory
, duties unless the employees supervised are professional.
"Section 101(a)(44)(B) of the Act , 8 U:S.c. § '1I91(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 organizat ion 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 'di~ection from higher level executives , the board
of directors , or stockholders of the organization.
The nonimmigrant petition was filed on January 24,2007. The petitioner indicat ed onForm 1-129 thatthe
beneficiary would continue to serve as president a~d general manager of the six-person U.S. company. In a
letter dated January 2,2007 , the petitioner described the beneficiary's position as follows:
, , '
, , '
[The beneficiary] is employed at the highest position within the US Company and supervises
employees who manage day-to-day operations. In sum, [the 'beneficiary] has the overall ,
responsibility of planning and developing the U .S. investment ,'executing or recommending
personnel actions , placing a management team to tim the operations , supervising all financial
aspects of the company and developing policies and objectives for the company.
* * "
[The beneficiary] will have , overall executive responsibility for developing, organizing, and
establishing thepurchase , sale, and marketing of merchandise for sale in the U.S. market. His
other duties will include: (i) identifying , recruiting , and building a management team and
staff with background and experience in management and sales in the U.S. market ; (ii) :
negotiating and supervising the drafting of purchase agreements ; (iii) marketing products to
consumers according to [the foreign -entity's] guidelines; (iv) overseeing the legal and
financial due diligence process and re so~ving any related issues ; (v) developing trade and
,consumer market strategies . based on guidelines formulated by [ the foreign entity]; (vi) ,
developing and implementing plans to ensure [the petitioner's] profitable operation; and (vii)
negotiating prices .and sales terms ,"developing pricing policies and advertising techniques.. . , " ."
Percentage of time spent on each duty :
Management Decis ions ,
Company Representation
Financial Decisions
40%
15%
10%
EAC 07 077 50383
Page 5
'Supervis ion of day-to-day company functions
Business Negotiations
Organizational Development of Company
10%
15%
10%
, l
, The petitioner provided an organizational chart for the U.~. company which identified the beneficiary's
immediate subordinates as an operations manager and a purchase and record keeping employee . The chart ,
depicts a store manager and < two sales and stocking employees subordinate to the operations manager. The ,
petitioner did not identify any employees by name on the organizational chart . The petitioner provided a copy
of its Texas Form UCT-6 , Employer's Quarterly Report, for the third quarter of 2006, which confirmed the
employment of six employees, including the beneficiary, as of September 2006. Four of the employees
earned total wages of less than $400 during the three-month period.
On February 28, 2007, the director requested additional evidence to establish that the beneficiary would be
employed in'a primarily managerial or execu'tive capacity. Specifically, the director instructed the pet itioner
to provide : (1) a comprehensive description of the beneficiary's duties with an explanation as to how the '
duties will be managerial or executive in nature ; (2) a list of all United States employees ,by name and
position title; (3) a complete position description for all employees , including a breakdown of the number of.
hours devoted to each employee's job duties on a weekly basis ; (4) copies of educational credentials for the
beneficiary's subordinates ; (5) copies of payroll records for all employees for the months of December 2006
, and January 2007; (6) a 'copyof IRS Form ·941, Employer's Quarterly Tax Return , for the fourth quarter of
. 2006 ; and (7) copies of all IRS Forms W-2, Wage and Tax Statement, issued in 2006.
In a response dated May 22 , 2007 , counsel for the petitioner further described the beneficiary's duties as
follows:
[The beneficiary] is employed, at ari executive positton within the . U.S. company, and
supervises employees who manage the day-to-dayoperations. [The beneficiary] plans and
directs the management of the Petitioner through its own employees , as well as outside
contract employees who perform the legal and accounting duties. The beneficiary is the
individual responsible for establishing goals and ' policies and exercising wide latitude in
discretionary decisions making duties , which includes supervising managerial level '
employees. Majority of [the beneficiary's] time i,s spent [on] business development ; sales and
income growth , and staff development . '
. Counsel emphasized that the ' beneficiary is responsible for all of the U.S. company's "planning , expansion ,
banking ; budgeting, 'and marketing ," and that he has "complete authority . to establish goals and policies and
, exercises discretionary decision-making authority." Counsel stated that the -beneficiary has "multiple business
interests" and spends the majority of his time on "other business interests." '
-Counsel furth~r provided the following breakdownof the beneficiary's duties :
, 30% - ' Management of the retail operations (meet with staff to 'implement policy, advise staff
of new product~ of [sic] services , ericourage team building , and obtain licenses
related to the business);
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EAC 07 077 50383
Page 6
15% -, Administrative functions, including recruiting, hiring and training of staff;
15% - Planning, budgeting, banking, finance and accounting, review of financial statements ,
meeting with bank officials, arranging loans, and providing prospectuses to banks;
40% - Searching for , reviewing and analyzing potential new investments , analyzing zoning
and legal issues, negotiating acquisitions and, meeting with P?tential. partners , co­
', 'investors, sellers , brokers, and preparing due diligence , meetings with sellers ,
,brokers , reviewing contracts , and reviewcontracts with ~ttorney .
Counsel indicated that ,'the petitioner employed ,' nine employees as of May 2007 , pays salaries of
approximately $7,500 per month , and employs managers and professionals who work under the beneficiary's
supervision. Counsel stated .that the petitioner was submitting an "organization chart and positions for the
U.S. company," but upon careful review of the attached exhibits, no organizational chart or position
descriptions for the beneficiary's subordinates canbe fou~d.in the record ofproceeding . ',
The petitioner did 'provide the requested IRS Forms ' W-2 and W-3 for 2006 , which show that the petitioner
.paid a total of $48,119.50 to ten employees in 2006 . Four of the employees received less tha'll $600, one'. . .'
employee earned $1,364; three'employees earned salaries in the $3,200 to $4 ,200 range, one employee
received 'approximately $11,500, and the beneficiary earned $12,000. However, 'with the exception of the
beneficiary and one other employee, none of the employees who received wages in 2096 were employed by
the company as of January 2007 when the petition was filed. ,' ,
. . ' . .
According to the pet itioner's'Texas Form UCT-6 tor the first quarter of 2007, only'the b~n~ficiary earned a
salary commensurate with full-time employment. The petitioner claimed six employees in JaJuary 2007, four
employees in February 2007, and fi ve employees in March 2007 , and paid ' a 'total of nine employees during
t~e quarte~. It is notpossible to determine whic~employees , other ~han the ben~~ci~ry , were :employed at the ,
time of filmg. One employee earned $1 ,008 dunng the quarter, while the remammg seven employees earned
between $180 and ·$462. Notwithstanding counsel's claim that the company pays salarie ~ of $7,500 per
month, the petitioner paid only $9,000 in salaries during the quarter in which the petition was filed, $6,000 of
" . , I .
which was paid to the beneficiary. J
'The d irector denied the petition on July 12 , 2007, conclud ing that the petitioner had not established that the
beneficiary would be employed in a 'primarily managerial or executive capacity .the director observed that
the petitioner had failed to define the job titles andjob duties of the beneficiary's subordinate employees , and
noted that the wage s' paid to the benefic iary's subordinates were not , commensurate with .full-time
employment. The director also .noted the petitioner's failure to provide the requested educational cred entials
for its employees , but found that, due to the nature of the business, 'the employees 'would likelynot be '
required. to have college degrees.
, , .
The d irector furth~r noted that the description ' of the beneficiary's duties dId not specify what he ~ould be
doing as a manager or executive in the context of the petitioner's current staffing structure. The d irector
observed the lack of full-time emplo yees to provide the sales and services of the compan y, and concluded that
the beneficiary would reasonably be required to primarily engage in non-qualifying tasks. '
, ,
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EAC 07077 50383
Page 7
On appeal, counsel for the petitioner asserts that -the Immigration Act of 1990 changed the definitions of
executive and manager to include individuals , who do not have supervisory responsibilities , but who manage
and direct a major function of the organization . Counsel asserts that the beneficiary will be employed in an
executive capacity and provides a slightly revi sed description of the beneficiary's duties , which includes :
(i}. identifying , recruiting and building a management team and ,staff with background
and experience in the U.S. market;
(ii) Hiring , discharging, and transferring 'employees according to work performance and
production needs; ,
(iii) Leading equipment and retail service facilities;
(iv) Negotiating and supervising the drafting of service agreements; , '
(v) Overseeing the legal and financial due diligence process ,and resolving any related
Issues ;
(vi) Developing trade and consumer market strategies based on guidelines formulated by
shareholder s and directors;
(vii) Preparing and analyzing reports on labor cost and production operations to determine
whether operating cost'stand~rds are be ing met ; and
(viti) Developing and implementing plans to ensure [the petitioner's] profitab le operation.
Counsel suggests that the director placed undue emphasis on the numbe; of employees supervised by the
beneficiary without consider ing the reasonable needs of the organization in light of its overall purpose and
stage of development. Counsel asserts that the beneficiary is employed .at the highest level within ,the
company and will supervise and control the work of supervisory ; managerial , or professional 'employees.
Counsel contends that the director unreasonably assumed that the positions of operations n:anager, purchase
manager and retail store manager are not professional-level employees and claims that the petitioner provided
detailed position descriptions for .each employee . , \. ' "
Counsel states that the petitioner currently employs six employees and anticipates employing 12 full-time
workers in the future ~s it seeks to achieve the corporate objective of b~coming "one of the leading wireless
companies." '
Counsel 's assertions .are not persuasive. Upon review ,and for the reasons discussed herein , 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 , th~ AAO will look first to the
, petitioner 's description of the job duties. See 8 C.F .R. § 214.2(1)(3)(ii). The pet itioner'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 executi ve or managerial capacity. !d.
In the instant matter, counsel and the petitioner have repeatedly 'described the beneficiary's proposed position
in very broad terms , noting his "complete authority to establish goals and policies," his "discretionary
decision-making authority ," and his "overall responsibility of planning and developing the U.S. investment."
These duties merely paraphrase the statutory definition of executive capacity . See section 101(a)(44)(B) of the
EAC 07 077 50383
Page 8
Act. 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. 1103, 1108 (E.D.N.Y.1989) ; aff'd, 905 F . 2d 41 (2d. Cir. 1990) ; Aryr
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S .D.N:Y.). '
Similarly, although the petitioner provided abreakdown of how the beneficiary's time would be allocated
among his various responsibilities in its initial 'letter dated January 2, 2007, this description was even more
vague, indicating that the beneficiary would devote his time to "management decision 's," "company
representation," "financial decisions," "business negotiations," "organizational development," and
"supervision of day-to-day operations." The AAO cannot accept an ambiguous position description and
speculate as to the related managerial or executive duties to be performed. 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. at "1198. "'
The petitioner also addresses the beneficiary's responsibility for "developing, organizing, and establishing .the
. purchase, sale, and marketing of merchandise" and notes that the beneficiary will be.involved in negotiating
and supervising the drafting of purchase agreements , "marketing products to consumers," "developing trade
and market strategies," negotiating prices and sales terms, overseeing financial issues and "developing pricing
policies and advertising techniques." The petitioner's description does not .clearly identify the managerial or
executive duties to be performed with respect to the purchase, marketing , sales, finance and advertising
functions of the petitioner's 'gas station and convenience store . Reciting the beneficiary's vague job
responsibilities or broadly-cast business object ives is not sufficient; 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 hi~ ' daily routine. The actual duties themselves will reveal 'the
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp . at 1108.
In response to the director's request for a: comprehensive description of the beneficiary's duties, the petitioner
submitted' a substantially different breakdown of the beneficiary's duties, noting that he has "other business. ,
interests" separate from the operation of the retail store, and spends 40 percent of his time researching
potential new investments "and negotiating for acquisitions. The petitioner offered no explanation as to why
no reference 1was made to the beneficiary's investment activities at the time of filing. Further, the petitioner
did not identify what 'specific duties are entailed by this responsibi~ity . ' Regardless, the record does not
su?stantiate that locating addit ional investment opportunities is the beneficiary 's primary responsibility. There
- is no documentary evidence in the record of such act ivities, notwithstanding the petitioner's claim that the
beneficiary is engaged in contract negotiations . Going on record without supporting documentary evidence is
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 0/Sofjici, 22 I&N ,
Dec. 158 , 165'(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm.
1972». '
Based on the limitedexplanation and documentary evidence provided , it cannot be concluded that the
,beneficiary devotes a substantial amount of time to investment and expansion activities, or that these activities
are primarily managerial or 'executive in nature. As 'discussed further below , the petitioner's claim that the
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EAC 07 077 50383
Page 9
{
. . .
beneficiary devotes only 30 percent of his time to actively managing the retail operations is also not supported
by the documentary evidence.
Finally, the AAO notes that counsel has provided yet another position description on appeal which refers to
negotiating service agreements , preparing reports 'on production operations , and leasing "retail service
facilities ." Sinc'e the petitioner does not claim to provide services or have a production department , these
duties are not credible . Counsel's reference to the petitioner's objective of becom ing "one of the leading
wireless companies" IS also .inconsistent with all other 'claims and evidence in the record indicating that the
petitioner operates a gas station and convenience store. It is incumbent upon the petitioner to resolve any
inconsistencies in the record 'by independent objective evidence. Any attempt to explain or reconcile such
, inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the
petitioner's proof may; of course.Tead to a reevaluation of the reliability and sufficiency ofthe remaining
evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582 ,591 (BIA 1988).
Overall , the petitioner has failed to provide a detailed , consistent and credible account of the beneficiary's
duties as president and general manager of the company. The petitioner 's descriptions of the beneficiary 's
duties do not allow the AAO to .determine the actual duties performed by the beneficiary, such that they can
be classified as managerial 'or executive, nor does the described breakdown of the beneficiary 's time seem
plausible within the,context of the petitioner 's organization.
The AAo does not ' doubt that the beneficiary will ex~rclse discretion .over the petitioner's business as its
president and 'only full-time employee . However , the definitions of executive and managerial capacity have, ' ,
two separate requirements. First, the petitioner must · show that the beneficiary performs the 'high-level
responsibilities that are specified in the definitions . Second, the ' petitioner must show that the beneficiary
primarily performs these specified .responsibilities and does not spend a majority of his or her time on day-to­
day functions. Champion World, Inc. v. INS, 940 F.2d '1533 (Table), 1991 WL 144470 (9th Cir. July 30 ,
1991). The test ensures thataperson not only has .the requisite authority, but that a majority of his or her
duties are related to operational or policy management, not to non-managerial and non-executive duties.
While several of the dl.,ltiesciescribed by the petit ioner would generally fall under the definitions of
managerial or executive capacity , the lack of specificity raises questions as to the beneficiary's actual
responsibili ties.
The petitioner 's description' of the beneficiary .'s duties cannot .be read or c~nsidered in the abstract ,'rather the "
AAO must determine based on a totality of the record whether the descriptionof the beneficiary 's duties '
represents a credible perspective of the beneficiary 's role within the organizational hierarchy . A review 'of the
record with respect to the pet itioner's staffing levels undermines .the petitioner 's claim that the beneficiary
primarily performs managerial ' Of executive-le vel d~tie s associated with the company 's investment and
'expansion efforts and overall management.
Although requested by the director ,' the petit ioner has failed to clearly identify the Job titles, duties" and
educational backgrounds of its employees. Any f ailure to submit requested evidence that preclude s a material
line of inquiry shall be grounds for denying the pet ition : 8 C.F.R. § 103.2(b)(14). The organizational chart
submitted with the petition identified three tiers of management to oversee two sales employees, as well as a
. I " l
" EAC 07077 50383
Page 10
purchasing and record keeping employee. While the petitioner does appear to have employed a total of six
employees during the month 'in which the petition was filed , the petitioner has not established that any of the
beneficiary's employees were employed in managerial , supervisory, or professional positions. Contrary to the
J . ' common understanding of the word "manager ," the statute plainly' states that a "first line supervisor is not
considered to be acting in amanagerialcapacity merely by virtue ofthe supervisor's supervisory duties unless
the employees 'supervised are professional ." Section 101(a)(44)(A)(iv) of the Act ; 8 C.F .R. '§
214.2(l)(I)(ii)(B)(2) : Although counsel objects to the director's "assumption" that the store manager,
operations manager .and "purchase manager," would not be professionals, the petitioner 'has not in fact
establi'shed that these positions were filled as of the date of filing, nor has it prov ided the requested position
descriptions for these -positions. USCIS will not conclude that the beneficiary manages supervisory or
professional employees based on an uncorroborated organizational chart that fails to identify any employees
by name. Going on record without supporting documentary evidence is not sufficient for purposes of meeting
the burden of proof in these proceedings, Matter ofSoffici , 22 I&N Dec; at 165 ~ ,
Counsel correctly observes that acompany's size alone , without taking i~to account the reasonable need~ of
( . ' ,' . ' "
the organization , may not be the determining factor.in denying a visa to a multinational manager or executive :
See § 101(a)(44)(C)'ofthe Act,8l).S .C. § 1101(a)(44)(C). However , it is appropriate fofUSCIS to consider .
the size of the petitioning company in conjunction with other relevant factors , such as a company's small
personnel size, the absence ofemployees who would .perform the ~on-managerialor non-executive .operations
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See,
e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7 , 15 (D .D.C. 2001). The absence 'of a subordinate staff
sufficient to perform the non-qualifyingduties of the petitioner's business is a proper consideration in the
. analysis of the beneficiary's employment capacity. S ee QData Consulting , Inc. v. INS. 293 F. Supp . 25, 29
(D.D.C. 2003) .
At the time of filing, the petitioner :was operating a gas station and convenience store that is open for business ,
for 84 hours per week, based' onthepetitioner's representations. During the quarter in which the petition was
filed, the company paid $6,000 to the beneficiary and a total of $3,019 to nine other employees. Since it
cannot be determined which employees worked i~ January 2007, the AAO notes .that the average number of
hours worked by all of the beneficiary's subordinates together on , a ,weekly basis during the quarter is
approximately 45 hours } . Given the minimal number of hO~IS 'worked by the subordinates , the 'record does "
not support the petitioner's claim that it employs an operations manager, a storema~ager, and a: purchasing
manager ,' as well 'as ' lower-level 'personnel , who relieve. the beneficiary from primarily working in the
company's store. The petitioner ha~ not even established that it has employees to staff the store during its
operating hours ." Counsel 's clalm that the petitioner regularly pays $7 ,500 per month in salaries is directly'
contradicted by every relevant piece of documentary evidence submitted by the petitioner . Without
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of
proof.' The unsupported assertions ofcounsel donot constitute evidence. Matter of Obaigbena, 19 I&N Dec.
I To derive this figure , the AAOdivided the amount paid to all subordinate employees ($3,019) by .the
number Ofweeks in the quarter (l3), and divided the result by 5.15', the minimum wage in Texas at the t ime
the petition was filed. " ' ,- " " /
2 It would cost the petitioner $5,623.80 per quarter to maintain a staff of one minimum wage employee in its
store for 84 hours per week. ' " , "
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EAC 07 077 50383
Page 11
533,534 (BIA 1988); Matter ofLaureano , 19 I&N Dec. 1 (BIA 1983) ; Matter ofRamirez-Sanche z, 17 I&N
Dec. 503, 506 (BIA 1980). Based on the totality of the record, it is reasonable to conclude, and has not been
shown otherwise, that the beneficiary is primarily engaged in the day-to-day tasks associated with operating a
retail store , rather than performing the cl ~imed managerial or executi vedut ies.
The reasonable needsbf the petitioner will not supersede th~ requirement that the beneficiary be "primarily"
employed in a managerial or executive capacity as required by the statute '. See sections 101(a)(44)(A) and (B)
of the Act , 8 U.S.c. §§ 1101(a)(44)(A) a~d (B). As discussed above , the petitioner has not established this
essential element of eligibility due to its failure to provide a deta iled, consistent description of the
beneficiary's duties. S
Although the director clearly noted the lack of employees to relieve the beneficiary from performing non-
, \
qualifying duties, counsel does not address the director 's findings on appeal or otherwise attempt to clarify
who would relieve the beneficiary from performing these tasks, Instead , counsel insists that the
undocumented "managers and supervisors" and other employees perform all the non-qualifying duties of the
company. Aga in, the unsupported assertions of counsel do not constitute evidence. Matter of Obaigb ena, 19
I&N Dec . 533, 534 (BIA 1988) ; Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez,
17I&N Dec. 503 , 506 (BIA 1980).
Despite the changes made by the Immigration Act of 1990 referenced by counsel, the statute continues to
require ' that an individual "primarily" perform managerial or executive duties in order to qualify ' as a
managerial or executive employee under the Act. .The word "primarily" is defined as "at first," "princ ipally,"
or "chiefly." Webster's II New College Dictionary 877 (2001). Where an individual is "principally" or
"chiefly," performing the tasks necessary to produce a ' product or to provide a service , that individual cannot
aiso "principally" or "chiefly" perform managerial or ' executive duties . Counsel submits no .evidence in the
form of congressional reports , case law, or other documentation ,to support his argument. Accordingly ,
counsel's unsupported assertions are not persuasive on-this point.
Collectively, the lack of specifics in the beneficiary's job description and the absence of subordinates to
performmariy of the duties that are reasonably requ ired in the daily operation of this type of business raises
questions as to how much of the beneficiary's time can actually be devoted to managerial or executive 'duties.
As stated i~ the statute; the beneficiary must be primarily performing duties that are managerial or executive.
See sections 101 (a)(44)(A) and (B) of the Act.
Thepetitioner indicates that it plans to hire up to twelve ful1-time employees in the future . However , 8 C.F,R.
§ 214.2(l)(3)(v)(C) allows theintended United States operation one year within the date of approval of the
J. petition to support a!1 executive or managerial position. 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 T~re Corp., 17 I&N Dec .,248
(Reg, Comm. 1978).
Based on the foregoing discussion , the petitioner has not established that the beneficiary would be employed
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed .
EAC 07077 50383'
Page 12
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. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed .
",