dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave N W , Rln A3042 
Wash~ngton, DC 20529 
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U.S. Citizenship 
and Immigration 
udentifvhg data M to 
Pnv- clrarly unw- / 
huYhadpqarrl- 
dilim Flle: 
WAC 04 053 5 1964 Office: CALIFORNIA SERVICE CENTER Date: NOV 2 8 2005 
Pet~tlon: Petltlon for a Nonimmlgrant Worker Pursuant to Section 101(a)(15)(L) of the Imm~gration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Thls IS the decision of the Administrative Appeals Office in your case. All documents have been reiurned to 
the office that originally decided your case. Any furthkr inquij must be made to that office. 
WAC 04 053 51964 
Page 2 
DISCUSSION: The Director, Cal~forn~a Serv~ce Center, denied the petition for a nonimmlgrant visa The 
matter IS now before the Admin~strative Appeals Office (AAO) on appeal. The AAO wlll dismiss the appeal. 
The petitioner filed th~s nonimm~grant pet~tion seeking to extend the employment of its general manager an L- 
1A intracompany transferee pursuant to sect~on 101(a)(15)(L) of the Immigration and ~at~onal~t~ Act (the 
Act), 8 U.S.C. § 1101(a)(15)(L). The petitloner IS a limited liability company organ~zcd In the State of 
Arizona that operates a convenience store. The petlt~oner claims that it is an affil~ate oand 
Sons, located in Gqarat, 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 his status for a two-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary has been or 
will be employed in a primarily managerial or executive capacity. 
, , 
I 
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'the director 
placed undue emphasis on the size of the petitioning company and the number of subordinate employees 
managed by the beneficiary, and contends that the petitioner provided sufficient evidence to kstablish that he 
would be employed in a qualifying managerial or executive capacity. Counsel further contends that the 
beneficiary's duties are characteristic of a 'functional managerlexecutive. Counsel submits a brief and 
additional evidence in, s~~~ort 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)(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 f6r 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. 
'She regulat~on at 8 C.F.R. § 214.2(1)(3) states that an indlv~dual petitlon filed on Form 1-129 shall be 
accompanied by: 
(i) , Evidence that the petitioner and the organization which employed o;'will employ the 
alien are qualifying organizations as defined in paragraph (1)(1 )(ii)(G),of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or speciahzed 
knowledge capacity, including a detailed description of the services to be performed. 
(111) Evldence that the allen has at Ieast one continuous year of full time employment 
abroad w~th a qual~fy~ng organlzatlon w~thln the three years preceding the fihng of 
the pet~t~on. 
WAC 04 053 51964 
Page 3 
(IV) Evidence that the alien's pnor year of employment abroad was in a posltion that was 
managerial, executlve or involved specialized knowledge and that the ahen's prlor 
education, trainmg, and employment qualifies himher to perform the ~ntended 
servlces m the United States; however, the work in the Unlted States need not be the 
same work wh~ch the alien performed abroad. 
The regulation at 8 C.F.R. 3 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this sect~on; 
(B) Evidence that the Unlted States entity has been doing business as defined tn 
paragraph (l)(l)(li)(H) of this sectlon for the prevlous year; 
(C) A statement of the duties performed by the beneficiary for the prevlous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement descnblng the staffing of the new operation, including the number of 
employees and types of posit~ons held accompanied by evldence of wages pald to 
employees when the beneficiary will be employed m a managenal or executlve 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in this matter 1s whether the beneficiary will be employed by the Unlted States entity In a 
managerial or executlve capacity. 
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 
ass~gnment w~thin an organization in which the employee primarily: 
(I) manages the organlzatron, or a department, subdivision, function, or component of 
the organlzatlon; 
(11) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essent~al function within the organ~zatlon, or a department 
or subdivision of the organlzatlon; 
? 
(111) ~f another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actlons (such as 
promotion and leave authorizat~on), or ~f no other employee 1s dlrectly supervised, 
functions at a senior level w~thin the organ~zational hierarchy or wlth respect to the 
functlon managed; and 
WAC 04 053 5 1964 
Page 4 
(IV) exercises discret~on over the day to day operat~ons of the actlvrty or functlon for 
whlch the employee has authonty. A first llne supervisor is not considered to be 
actlng In a managerla1 capac~ty merely by virtue of the supervisor's supervisory 
dutles unless the employees supervised are professlonal. 
Sectlon 101(a)(44)(B) of the Act, 8 U.S.C. fj 1101(a)(44)(B), defines the term "execut~ve capacity" as an 
assignment wlthln an organ~zat~on m whlch the employee pnmanly: 
(I) d~rects the management of the organlzatlon or a major component or function of the 
organlzatlon; 
(11) establishes the goals and pollcies of the organlzatlon, component, or functlon; 
(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 a December 15, 2003 letter appended to the initial petition, the petitloner described the beneficiary's dut~es 
as follows: 
As General Manager for North America, [the beneficiary] wlll hire and thereafter tram wlth 
upper level professlonal employees. 
As General Manager for North America, [the beneficiary] will be required to supervise the 
collection of data of U.S. competitors, which will advise the petitioner's management as to 
the availability of prospective U.S. clients, as well as the viability. of potential marketplaces. 
In this regard, the General Manager for North America will have the discretion .to'engage the 
services of U.S, based marketing analysts. 
As General Manager for North Amenca, [the beneficlary] wlll dlrect staffing, trainrng and 
performance evaluations to develop and control busmess expansron strategies. [,The 
beneficlary] wlll coordinate the staff by establ~shlng sale temtones, quotas and goals, and 
advlce [sic] dealers, dlstnbutors and cllents concerning sales and advertising techntques. As 
General Manager for North Amenca, [the benefic~ary] will asslgn an aggressive marketing to 
subord~nate sales managers. 
The pet~t~oner Indicated on Form 1-1 29 that ~t had one employee at the tlme the petitlon was filed. 
On February 7, 2004, the dlrector requested addrt~onal evldence to establish that the beneficlary would be 
performing the duties of a manager or execut~ve wlth the petltlonlng company. Specifically, the dlrector 
rnstructed the petitloner to submlt: (1) the total number of employees at the U.S. locatlon where the 
beneficlary will be employed; (2) rts organizational chart depicting the benefic~ary's posltlon and ldentlfylng 
WAC 04 053 5 1964 
Page 5 
all subordinate positions, lnclud~ng job titles, job dut~es, educational level and annual salarles for all 
employees worklng under the beneficlary's supervlslon; (3) a more detalled descr~pt~on of the bensfic~ary's 
duties In the Unlted States; (4) coples of the U.S. company's Arlzona quarterly wage reports for the last four 
quarters that were accepted by the State of Anzona; (5) coples of IRS Forms 941, U.S. Quarterly Federal Tax 
Ketum, for the last four quarters, and (6) copies of the U.S. company's payroll summary, Forms W-2 and 
Form W-3, evidencing wages paid to employees. 
In response, counsel subm~tted a letter dated Apnl 30, 2004. Counsel stated that the pet~ttoner does not have 
any employees but plans to hire three employees "this year." In response to the director's request for a 
detalled descr~ptlon of the beneficiary's dutles In the United States, counsel stated: 
[The beneficiary] is the General Manager for [the petltloner]. He does not report to anyone. 
He will dlrect employees, trainlng and performance evaluations to develop and control 
busmess expansion strategies. He will coordinate the employees by estabhshlng sales 
territories, quotas and goals and advlce [SIC] dealers, distnbutors and chents concerning sales 7 
and advertising techniques. 
In addition, the petltloner submitted an Aprll 23,2004 letter m which ~t ind~cated the beneficiary is "prepanng 
to hlre" a cashler, a part-tlme stocker and a part-time dnver, and that he will "oversee three employees and the 
dally operation[s] of the busmess." The petitloner also stated that ~t ut~llzes the servlces of an accountant and 
provided a letter from the accountant bnefly describing the services he provldes as an Independent contractor. 
The pet~t~oner's organizational chart deplcts the beneficiary over a cashier, a part-t~me stocker, a part-time 
drlver and the accountant. 
The director denied the on July 11, 2004, concluding that the petitioner did not establish that the, 
beneficiary will be functioning in a managerial or executive capacity. The director observed that as the 
petitioner's sole employee, the beneficiary "must be performing all business activities of the petitioning 
organization, including non-qualifying day-to-day activities of the company's operations." Accordingly, the 
director concluded that the beneficiary's duties are not primarily managerial or executive. Finally, the director 
acknowledged the petitioner's claim that it intended to hire additional employees in the near future, but noted 
thlat the petitioner must establish eligibility at the time of filing. 
On appeal, counsel for the petitioner asserts that the d~rector's decision "represents incorrect and 
lnappropr~ate presumption . . .that small companies do not have executives or managers." Counsel emphastzes 
that there 1s no "predetermlned number of workers that a company must employ" In order to clalm a need for 
a general manager. Counsel cltes Mars Jewe/ers, Inc v INS, 702 F. Supp. 1570, (N.D. Ga. 1988) and several 
unpubl~shed AAO decisions to stand for the proposition that the sue of a petitioning organlzatlon 1s not a 
determining factor m analyzing whether a benefic~ary wlll be employed In a managenal or executive capac~ty. 
Counsel further asserts that because the petitioner is a small organ~zation, the beneficlary's duties must 
necessarily be broad In nature. Counsel indicates that the petlt~oner hlred two employees in May 2004, and 
provldes a new job descnptlon for the beneficlary that takes Into account h~s supervisory dut~es. Counsel 
clalms that the beneficlary IS accountable for managlng and malntalnlng the "funct~onality" of the pet~tioner, 
WAC 04 053 5 1964 
Page 6 
and states that the new dutles llsted "far exceed the respons~bllit~es and accountablllty of a mere 'front-hne' 
supervisor' and are truly character~st~c of a funct~onal manager/execut~ve." Counsel states that supervlslon of 
employees wlll be only lnc~dental to the benefic~ary's pnmary duty of managing the functlonallty and 
ensunng the success of the company. 
Counsel objects to the d~rector's reference to Matter of Church Scientology International, 19 I&N Dec. 583 
(Comm. 1988), notlng that the declslon pre-dates the Immigration Act of 1990 and the ~ntroductlon of the 
concept of a "function manager." Counsel states that the beneficiary quahfies as an executlve because he 
manages a funct~on of the organization, establishes polic~es and goals, exercises wlde latitude In dec~slon 
making, and, as the owner of the petltlonlng company, does not recelve direction from any hlgher-level 
personnel 
Fmally, counsel refers to the U.S. Department of Labor's Occupational Outlook Handbook and Dcctzonary of 
Occupational Titles, notlng that these pubhcations prov~de posltlon descnptlons for general managers, top 
executtves and retall store managers whlch are consistent wlth the job descnptlon provlded for the 
beneficlary. 
In support of the appeal, the pet~tioner submlts, In part, Forms 1-9, Employment El~glblllty Ver~fication, and 
Forms W-4, Employee's W~thholding Allowance Certificate, for two new employees. The documents were all 
slgned on August 25,2004. 
Upon revlew of the petition and evidence, the petrt~oner has not establ~shed that the beneficlary wlll be 
employed m a prlmarlly managerial or executlve capac~ty. When examlnlng the executlve or managenal 
capaclty of the beneficlary, the AAO will look first to the petltloner's descnpt~on of the job dut~es. See 8 
C.F.R. 214.2(1)(3)(11). The petltloner's descnptlon of the job dutles must clearly descnbe the dutles to be 
performed by the benefictary and Indicate whether such dutles are elther m an executive or managerla1 
capac~ty. Id. 
On revlew, the petlt~oner has provlded a vague, non-specific and largely speculatlve descnptlon of the 
benefic~ary's dut~es that fails to demonstrate what the benefic~ary does on a day-to-day bass and furthermore 
appears implausible In the context of the petitloner's business as an operator of a small convenience store For 
example, the pet~tloner Indicated that the beneficiary "wlll hlre and thereafter tram wtth upper level 
professional employees," "coordmate staff by esbbllshlng sale terntones, quotas and goals," and "assign an 
aggressive marketing to subordmate sales managers." Gwen that the petltloner dld not employ any employees 
other than the beneficiary at the tlme of filmg, much less upper level profess~onals or sales managers, these 
dut~es are speculatlve at best and provlde no lnsrght Into the benefic~ary's day-to-day tasks at the ttme of 
filing. Moreover, the pet~tloner has not ~ndlcated any ~ntent~on to operate a type of buslness that would 
mandate the hir~ng of sales managers or the establishment of sales temtones3or quotas. 
.The petitioner further indicated that the beneficiary would "supkrvise the collection of data 'on U.S. 
compet~tors," "advise the  petitioner:^ management as to the availability of prospective U.S. clients,'' "engage 
the services of marketing analysts," "control business expansion strategies," and "[advise] dealers; distributors 
and clients concerning sales and advertising techniques." However, the petitioner did not clarify who actually 
WAC 04 053 5 1964 
Page 7 
sales and marketing duties, maintains relationships with vendors and suppliers, or any other duties 
associate&,with operating the petitioner's business, if not the beneficiary. Overall, the job description 
provided is vague and appears incongruous in light of the petitioner's description of its business operations. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has failed to 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724'~. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The AAO cannot determine from the 
beneficiary's 'job description what duties the benefi~iary performs, much less conclude that' his duties* are 
primarily managerial or executive; the AAO will not accept a vague job description and speculate as to the 
related managerial and executive job duties. Merely claiming that the beneficiary owns' and manages the 
petitioning company or has a managerial or executive job title is insufficient to establish eligibility. 
Although counsel provides a new job .description on appeal, the description appears to reflect the 
beneficiary's duties subsequent to the hiring of two new employees in August 2004 and is thus not probative 
of the beneficiary's eligibility at the date of filing. 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 Corp., 17 I&N Dec: 238 (Reg. 
Comm. 1978). 
Counsel correctly observed that CIS may not base a determination of the beneficiary's eligibility for 
managerial or exedutive capacity solely on the size of the petitioning company. 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, 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 office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. $ 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 8 214.2(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 iufficient staffing after one year to relieve the beneficiary fiom 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
At the time of filing, the petitioner was a one-year-old retailer operating a convenience store. The petitioner 
operates a retaikstore that is likely open for business at least eight hours a day, six days a week. The petitioner 
clearly requires employees to perform a number of non-managerial tasks, such as review and order inventory, 
receive deliveries, stock merchandise on shelves, answer customer questions regardingh products, operate a 
cash register, reconcile daily sales, balance a checkbook, .pay monthly biils, and perform other routine 
operational tasks. 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 a general manager who performs primarily 
managerial and executive duties. Rather, at the time the petition was filed, the beneficiary, as the only 
employee, would have been required to perform all of the routine administrative and operational duties 
WAC 04 053 51964 
Page 8 
inherent in operating a convenience store. Although the petitioner and counsel assert that the beneficiary's 
duties are primarily executive or managerial, it is clear from the record that the reasonable needs of the 
petitioner would require that the beneficiary work in the store performing non-qualifying duties on a full-time, 
or near full-time basis. An employee who primarily performs the tasks necessary to produce a product or 
provide services is not considered to be employed in a managerial or executive capacity. &latter qf Church 
Scientology International, 19 I&N Dec. 583,604 (Comm. 1988). 
The AAO acknowledges counsel's objections to the director's reliance on Matter of Church Scientology 
International. However, the Matter of Church Siientology International decision remains a valid precedent 
decision that is binding on all CIS officers in the enforcement of the Act. See 8 C.F.R.5 103.3(c). Specifically, 
in Matter of Church Scientology, the AAO examined the claimed managerial capacity of a member of the 
Church of Scientology. After citing to the regulations and noting that the beneficiary's dutiks must be . 
. primarily at the managerial or executive levels, the AA0 stated: "An employee who primarily perforins 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. at 604. The AAO continued 
to examine the specific job duties and concluded that the beneficiary appeared to function as a staff officer or 
specialist and not as a manager or executive. 
', 
Additionally, counsel observes that Congress omitted the language that discussed individuals who produce a 
product or provide a service from the Immigration Act of 1990 and asserts that this is a clear indicator that 
such individuals are not precluded from qualifying as multinational managers or executives. However, the 
AAO will not draw this conclusion based solely on an omission. Despite the changes made by the 
Immigration Act of 1990, 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 
!'primarilyu is defined as ''at first," "principally," 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 also "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 peisuasive on this.point, 
. . 
. . 
The definitions of executive and managerial capacity have two parts. 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, hc. v. INS, 940, F.2d 1533 (Table) 
1991 WL 144470 (9'h Cir. July 30, 1991). The AAO does not dispute that the beneficiary does indeed 
exercise discretion over the petitioner's business operations. However, it can be assumed, and has not been 
. shownothenvise, that the beneficiary has been performing many or all of the routine operational tasks 
necessary to operate a retail store. Furthermore, it is evident that such duties would, by necessity,- be his 
primary duties. The petitioner's store could not operate if its only employee did not work in the store on a 
full-time basis. The reasonable needs of the petitioner may justify a beneficiary who allocates 5 1 percent of 
his duties to managerial or executive tasks as opposed to 90 percent, but those needs will not excuse a 
beneficiary who spends the majority of his or her time on non-qualifying duties. 
WAC 04 053 51964 
Page 9 
On appeal, counsel argues that the beneficiary qualifies as a function manager or executive because he is 
responsible for the "functionality" of the petitioning company. The term "function manager" applies generally 
when.a beneficiary does'not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. See section 101(a)(44)(A) of the 
Act, 8 U.S.C. g 1101(a)(44)(A). In such a situation, the AAO recognizes that other employees carry out the 
functions of the organization, even though those employees may not be directly under the function manager's 
supervision. The addition of the concept of a "function manager" by the Immigration Act of 1990 simply 
eliminates the requirement that a beneficiary must directly supervise subordinate employees to establish 
management capacity. The statutory requirement that a beneficiary "primari1y"'perform in amanagerial or 
executive capacity continues to. be valid. Moreover, federal courts continue to give deference to CIS'S. 
interpretation of the Immigration Act of 1990 and the concept of "function manager," especially when 
considering individuals who primarily conduct the business of an organization or when the petitioner fails to 
establish what proportion of an employee's duties might be managerial as opposed to operatiinal. See Boyan$ 
Ltd. v. INS, 67 F.3d 305 (Table), 1995 WL 576839 at *5 (9'h Cir. 1995 (unpublished)(citing to .Matter of 
Church Scientology Int'l and finding an employee who primarily performs operational tasks is not a 
managerial or executive employee); see also, IKEA US, Inc. v. ~.~.Dept. of Justice, 48 F. Supp, 2d 22, 24 
(D.D.C. 1999); .Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C.Cir. 1991). In this matter, the petitioner 
has not provided evidence to establish that the beneficiary primaiily manages an essential function. Counsel's 
unsubstantiated statement that the beneficiary's "primary duty is to manage.' . .the functionality of the 
company" is not persuasive. Without documentary evidence to support the claim, the assertions of counsel 
wili not satisfy the petitioner's burden of proof. The assertions of counsel do not constitute evidence. Mutter 
of Obaigbena, 19 I&N Dec.'533,534 (BlA 1988); Matter Of Laureano, 19 I&NDec. 1 (BIA 1983); Matter of 
Ramirez-~unchez, 173I&N Dec. 503, 506 (BIA 1980). 
Counsel cites Mars Jewelers, ~nc. 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 fumished no evidence to establish that the facts 
of the instant petition are analogous to those in Mars Jewelers, Inc. v. INS. It is noted that the decision cited 
by counsel relates to an immigrant visa petition, and not the extension of a "new office" nonimmigrant visa 
petition. As the new office extension regulations call for a review of the petitioner's business activities and 
staffing after one year, the cases cited by counsel are distinguishable based on the applicable regulations. See 
8 C.F.K. $ 214.2(1)(14)(ii). . 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 tfie same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Althbugh 
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. As counsel has not 
discussed the facts of the cited matter, it will not be considered in this proceeding. 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee. Counsel has fumished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished 'decision. While 8 C.F.R. 5 103:3(c) provides that AAO precedent 
WAC 04 053 5 1964 
Page 10 
decls~ons are bindlng on all CIS employees rn the admln~strat~on of the Act, unpublished declslons are not 
slmllarly brndlng. 
Finally, the AAO acknowledges counsel's argument that the beneficrary's job dutles closely resemble those 
dcscnbed for "general managers and top executlves" and "retall store managers" In the U.S. Department of 
Labor's Occupational Outlook Handbook and Dictionary of Occupational Tltles. Genenc job desmpt~ons 
found In Department of Labor publlcatrons have no beanng on an assessment of thls beneficlary's dut~es 
wrthln the context of the petrt~oner's busmess, and the petrtroner cannot sat~sfy its burden of proof by 
paraphrasing such descr~ptlons; the regulahons requlre the petrtloner to submlt a detalled descnptron of the 
beneficlary's duhes. See 8 C.F.R. $ 214.2(1)(3)(11). Specrfics are clearly an Important lndicat~on of whether a 
beneficlary's dutres are pr~mar~ly managenal or executive in nature, otherw~se meetlng the defin~tlons would 
slmply be a matter of rerteratlng the regulatlons. See Fedin Bros. Co.. Ltd v. Suva, 724 F. Supp. at 1 103. 
The record is not persuasive in dimonstrating 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 future, 
and submits evidence on appeal that it hired additional employees subsequent to the denial of the petition. 
However, as discussed above, the petitioner must establish eligibility it 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 Corp., suprd; Furthermore, as noted above, 8 
C.F.R. $ 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of 
the petition to support anexecutive or managerial position'. There is no provision in, 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 reached 
the point that it can employ the beneficiary in a predominantly managerial or executive position. For this 
reason, the appeal will be dismissed. 
In vlsa petltlon proceedmgs, the burden of provlng elrgrbllity for the benefit sought remalns entlrely w~th the 
pet~troner. Sect~on 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's declsron will be affirmed and the pet~tion will be denled. 
ORDER: The appeal IS d~smissed.