dismissed L-1A Case: Retail

fC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: EAC 07 241 50859 Office: VERMONT SERVICE CENTER Date: MAY 3 0 2008 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1 101(a)(15)(L) 
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. 
Administrative Appeals Office 
EAC 07 241 50859 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101 (a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a Florida limited liability company, states that it operates a 
convenience store. The petitioner claims to be an affiliate of Nishrnan Comforts Ltd., located in Lusaka, 
Zambia. The petitioner seeks to employ the beneficiary as its marketing manager for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
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 
erroneously determined that the beneficiary will not serve in a managerial or executive capacity. Specifically, 
counsel contends that the beneficiary would be employed as a hnctional manager responsible for the 
expansion of the petitioner's business. Counsel asserts that the director placed undue emphasis on the number 
of employees working for the company, but failed to take into account the reasonable needs of the business in 
determining that the beneficiary will not be employed in a managerial capacity. 
To establish eligibility for the L-1 nonirnrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
EAC 07 241 50859 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed by the United States entity in a primarily managerial capacity. The petitioner does not claim that 
the beneficiary would be employed in an executive capacity. 
Section 101(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: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(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. 
The nonimrnigrant petition was filed on August 22, 2007. In a letter dated August 7, 2007, the petitioner 
indicated that it intends to employ the beneficiary as its marketing manager with responsibility for 
"management of the marketing fimction of our company." The petitioner further described the beneficiary's 
proposed position as follows: 
[The petitioner] would like to employ [the beneficiary] in this position to aid in the growth of 
our business by identifying market opportunities and planning their acquisition. Employing 
someone devoted solely to the marketing function is essential to the growth of [the 
petitioning company]. 
[The beneficiary] would be responsible for leading the operational design and implementation 
of our expansion. He will have full authority over this function and may enter into contracts 
on behalf of the company as necessary. Additionally, he will have discretionary budgetary 
authority for this function with little supervision. 
EAC 07 241 50859 
Page 4 
As Marketing Manager, [the beneficiary] will manage an essential function and component of 
our business, that is, the expansion of our business to include more convenience stores over a 
period of time as discussed in the attached business plan. [The beneficiary] will have a 
significant effect on the company's profits and operations. 
[The beneficiary] will have overall managerial responsibility for the following crucial 
operations: 
Defining and managing our operational model for expansion. 
Defining and managing the tactics aimed at increasing our market share and 
identifying new stores andlor locations for expansion; 
Representing [the petitioner] in all meetings related to these duties. 
[The beneficiary] will manage marketing strategy and direction, as well as business details 
including financial issues and business forecasting. 
[The beneficiary] will maintain broad authority with respect to the analysis, operational 
design, organization, and execution of these strategies. In managing these activities, [the 
beneficiary] will function at a senior level within [the petitioning company]. 
In a letter dated August 17, 2007, counsel for the petitioner further described the beneficiary's proposed 
position as follows: 
[The beneficiary's] presence in the US will allow [the petitioner] to utilize his expertise in 
order to research the market and manage the business in a way that future expansions will be 
possible, such as acquiring other convenience stores in the Orlando area. As Marketing 
Manager, [the beneficiary] will conduct marketing research and/or hire personnel to do so, in 
order to determine competitive prices so that the company can attract more traffic and 
therefore increase sales. 
Some of his duties will also include identifying similar businesses that are for sale in the 
Orlando area and determine which ones may be a good acquisition to [the petitioner]. 
The petitioner further stated that the beneficiary will engage in "functional managerial duties" as its marketing 
manager, and described the following duties: 
Specifically, [the beneficiary] is charged with identifying new markets that will increase the 
sales and profits of the company and attract new customers. 
Further, [the beneficiary] will study the market in order to identify convenience stores that are 
for sale that could possibly present an opportunity for [the petitioner] , therefore allowing the 
company to expand its business. Additionally, [the beneficiary] will be responsible for the 
oversight of and financial viability of [the petitioner] via his role as marketing manager 
responsible for the expansion of [the petitioner] according to market conditions. 
EAC 07 241 50859 
Page 5 
Because [the beneficiary] is primarily charged with managerial capacity duties at [the foreign 
entity] and [the petitioner] he fulfills all necessary managerial capacity requirements under 
the statute. 
The petitioner also submitted a 13-page business plan which outlined the company's intention to hire the 
beneficiary to develop an expansion plan, and to develop a marketing plan that will increase revenues for the 
company's present and future locations. The petitioner's business plan provides a detailed overview of its 
current convenience store operation, the products it sells and the demographic it serves. The store is staffed 
by one manager and two cashiers. The business plan indicates that the beneficiary "will not participate in day 
to day store operations. His function will be to develop marketing and expansion plans and to supervise their 
implementation." The beneficiary's proposed marketing activities are firther described as follows: 
The L-1 applicant during his first year will develop a marketing plan that will serve to 
increase sales in the present location, but also serve as a marketing model for future locations. 
The Company plans to eventually have multiple locations. The marketing will be directed by 
corporate staff. The L-1 applicant will be devising plans for a corporate directed marketing 
initiatives program. 
However, during the first year of this plan, the Company will undertake marketing activities 
to include: 
Advertising in local newspapers 
Coupon program 
Promotional activities 
The petitioner estimated that advertising would cost the company approximately $300 per month, while the 
coupon program and promotion activities were given a budget of $2,500, for a total annual cost of $6,100. 
The business plan further indicated the petitioner's intent to open a second convenience store during the 
second year of its plan, and to eventually grow to include at least five locations. In this regard, the petitioner 
indicated that the beneficiary would perform the following duties: 
Expansion planning will be the L-1 applicant's primary responsibility. He will research the 
market and observe Store operations to develop an expansion plan that will include: 
Benchmarks to determine if it is more feasible to buy existing operations or develop new 
locations 
Methods to integrate the operations of units to maximize efficiency in purchasing and 
marketing 
Marketing plans for multi-unit operations 
Organizing the computer systems required for centralized financial operations 
Formulating a staffing structure for central management of a multi-unit organization. 
The L-1 applicant will oversee the implementation of expansion plans. 
EAC 07 241 50859 
Page 6 
On August 30, 2007, the director requested that the petitioner submit additional evidence to support its claim 
that the beneficiary would be employed in a managerial or executive capacity. The director noted that, based 
on the evidence submitted, it did not appear that the beneficiary would function at a senior level within the 
petitioner's organizational hierarchy, or that he would be supervising and controlling a subordinate staff of 
managerial, professional or supervisory employees. The director instructed the petitioner to submit an 
organizational chart for the U.S. entity which clearly identifies the beneficiary's proposed position and those 
of his proposed subordinates. The director further requested a detailed explanation outlining how the duties of 
the subordinate employees are managerial or require the expertise of a professional. 
In a response dated October 11, 2007, counsel for the petitioner clarified that the petitioner seeks L-IA 
classification for the beneficiary as a functional manager, and as such, he is not required to supervise or 
control the work of subordinate staff. Counsel emphasized that the petitioner had gone to great expense to 
hire a professional to prepare a business plan to determine the feasibility of hiring the beneficiary to manage 
its marketing function, which is "necessary and critical" to the petitioner's growth. Counsel stated that the 
"outside contractors will be managed once the beneficiary is in place.'' The petitioner re-submitted its letter 
dated August 7, 2007 as evidence that the beneficiary would be employed as a function manager. 
The director denied the petition on October 24, 2007, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial capacity. The director acknowledged the 
petitioner's assertion that the beneficiary would manage an essential function, but determined that the 
petitioner failed to establish that the beneficiary would function at a senior level within the petitioner's 
organizational hierarchy, other than in position title. The director further observed that the petitioner had not 
established that its "small convenience store" has a need for the services of a bona fide marketing manager 
who would perform the described duties on a fulltime basis. 
On appeal, counsel for the petitioner asserts that the director failed to apply the law to the facts of the case and 
denied the petition without merit. Counsel emphasizes that section 101(a)(44)(C) of the Act requires the 
director to take into account the reasonable needs of the organizational, component or function in light of the 
overall purpose of the organization, component or function, rather than basing his determination on the 
number of employees the beneficiary would supervise or direct. 
Counsel reiterates that the beneficiary will be overseeing the expansion of the petitioner's business and asserts 
that the petitioner's three employees are sufficient to staff the one convenience store it currently operates. 
Counsel contends that the director provided no basis for discrediting the submitted evidence. Counsel asserts 
that the petitioning company has a reasonable need for the beneficiary's services as marketing manager 
because the petitioner's president is too busy to undertake the marketing project for the expansion of the 
business. In addition, counsel emphasizes that the beneficiary is a partial owner of the U.S. entity, will operate 
at a senior level, will eventually supervise the work of contractors and employees to carry out the marketing 
function, and will "have discretionary latitude over day-to-day operations for the marketing function." 
Counsel's assertions are not persuasive. Upon review of the petition and supporting evidence, the petitioner 
has not established that the beneficiary would be employed by the petitioner in a primarily managerial 
capacity. The petitioner claims that the beneficiary, as marketing manager, will be responsible for managing 
the marketing function and the expansion of the petitioner's business. 
EAC 07 241 50859 
Page 7 
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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. tj 1 101 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. The term "essential" is commonly defined as "inherent" or 
"indispensable." Webster S 11 New College Dictionary 384 (2001). Accordingly, based on the plain meaning 
of the word "essential," the petitioner must establish that the function managed by the beneficiary is inherent 
and indispensable to the petitioner's operations rather than a non-essential or superfluous task. 
Based on the statutory definition of managerial capacity, a petitioner must prove the following elements to 
establish that a beneficiary is primarily serving as a function manager within an organization: 
First, the beneficiary must manage an "essential function" within the organization, or a 
department or subdivision of the organization; 
Second, the beneficiary must function at a "senior level" within the organizational hierarchy 
or with respect to the function managed; and 
Third, the beneficiary must control and "exercise discretion" over the day-to-day operations 
of the function. 
See sections 101 (a)(44)(A)(ii), (iii), and (iv) of the Act. 
When examining the executive or managerial capacity of the beneficiary, CIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. tj 214.2(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. 
If a petitioner claims that the beneficiary is primarily managing an essential function, the petitioner must 
furnish a detailed position description that clearly explains the duties to be performed in that capacity, i.e. 
identifies the function with specificity, articulates the essential nature of the function, and establishes the 
proportion of the beneficiary's daily duties attributed to managing the essential function. If a petitioner fails 
to document what proportion of the beneficiary's duties would be managerial functions and what proportion 
would be non-managerial, the AAO cannot determine whether the beneficiary is primarily performing the 
duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). In addition, the petitioner's description of the beneficiary's daily duties must clearly demonstrate that 
the beneficiary primarily manages the function rather than performs the duties related to the function. An 
employee who "prirnari'ly" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
Here, the petitioner's description of the beneficiary's proposed duties was too vague to establish that he 
would be primarily performing managerial duties associated with the petitioner's marketing and expansion 
functions. The petitioner stated that the beneficiary would be "identifying marketing opportunities and 
EAC 07 241 50859 
Page 8 
planning their acquisition," "leading the operational design and implementation of our expansion," "defining 
and managing the tactics aimed at increasing [the petitioner's] market share," "managing marketing strategy 
and direction," "identifying new markets," "identifying similar businesses that are for sale," maintaining 
"broad authority with respect to the analysis, operational design, organization and execution of these 
strategies," and fimctioning "at a senior level" within the company. While the petitioner has outlined the 
beneficiary's overall objectives and intended purpose for the creation of the position, the record contains no 
detailed description of what tasks the beneficiary would perform on a day-to-day basis to achieve these goals, 
or whether such duties would be managerial in nature. 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 provide any detail or explanation of the 
beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 
F.2d 41 (2d. Cir. 1990). 
The petitioner's business plan provided some additional insight into the beneficiary's responsibilities and the 
purpose for his transfer, but is also insufficient to establish that he would be employed in a primarily 
managerial capacity. The petitioner indicated that during his first year of employment, the beneficiary would 
"develop a marketing plan" and undertake marketing activities to include advertising in local newspapers, 
coupon programs and promotional activities, such as sponsoring a community event. The petitioner did not 
describe the specific duties to be performed by the beneficiary with respect to these marketing activities. It is 
not clear based on the limited information provided that placing advertisements or planning an in-store 
coupon program would actually require the beneficiary to perform any managerial tasks, nor does the record 
establish that such tasks would require the full-time services of a marketing manager. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
As noted above, the petitioner's business plan did indicate the petitioner's intent to open a second 
convenience store during the second year of the plan. However, the petitioner again failed to delineate the 
specific managerial duties to be performed by the beneficiary with respect to the petitioner's expansion 
activities. The petitioner stated that the beneficiary would develop an expansion plan, listed several general 
components to be included in the plan, and stated that the beneficiary would "oversee the implementation of 
expansion plans." The petitioner did not, however, describe the specific duties the beneficiary performs to 
"oversee" the company's expansion or what tasks would be involved in developing the plan, and the AAO 
will not speculate as to the related managerial duties. 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. 1103 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Based on this limited explanation and documentary evidence, it 
cannot be concluded that the beneficiary would devote a substantial amount of time to performing managerial 
duties associated with the petitioner's marketing or expansion activities. 
On appeal, counsel for the petitioner simply reiterates that the beneficiary "will operate at a senior level," 
"have discretionary latitude over day-to-day operations for the marketing finction," and "oversee the 
expansion of the business." Conclusory assertions regarding the beneficiary's employment capacity are not 
EAC 07 241 50859 
Page 9 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden 
of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1 108. 
Overall, the descriptions of the beneficiary's duties do not allow the AAO to determine the actual duties to be 
performed by beneficiary, such that they can be classified as managerial in nature. Furthermore, whether the 
beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has sustained its 
burden of proving that his duties are "primarily" managerial. In the present matter, the petitioner fails to 
document what proportion of the beneficiary's duties would be managerial functions and what proportion 
would be non-managerial. The petitioner lists the beneficiary's duties as managerial, but it fails to quantifL 
the time the beneficiary spends on them. Absent a clear and credible breakdown and description of the 
beneficiary proposed duties and the amount of time to be spent on them, the AAO cannot determine what 
proportion of his duties would be managerial or executive, nor can it deduce whether the beneficiary is 
primarily performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. 
Supp. 2d at 24. 
Beyond the required description of the job duties, CIS reviews the totality of the record when examining the 
claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, 
the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. In the 
case of a function manager, where no subordinates are directly supervised, these other factors may include the 
beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, 
the scope of the beneficiary's authority and its impact on the petitioner's operations, the indirect supervision 
of employees within the scope of the function managed, and the value of the budgets, products, or services 
that the beneficiary manages. 
As discussed above, the petitioner has provided a vague job description that fails to convey any understanding 
of the actual duties the beneficiary will perform on a daily basis or the amount of time he will devote to duties 
related to managing the assigned function. The beneficiary may function at a "senior level" within the three- 
person company by virtue of being a partial owner of the company, but it does not automatically follow that 
he qualifies as a fimction manager. According to the petitioner's business plan, the beneficiary would be 
responsible for a marketing budget of only $6,100 during his first year of employment and would be charged 
with placing advertisements in local newspapers and developing an in-store coupon program, activities which 
have not been shown to be managerial in nature. Although the petitioner states that the beneficiary will hire 
marketing employees or contractors as necessary to assist him in managing his assigned function, such 
intentions are not reflected in the petitioner's three-year business plan. 
On appeal, counsel states that the director placed undue emphasis on the petitioner's small staff size in 
making his determination, noting that the statute and regulations do not impose such a requirement with 
respect to the size of the petitioning organization. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. $ 
1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, Citizenship and lmrmgration Services (CIS) must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. However, it is appropriate for CIS to consider the size of the petitioning company in conjunction 
EAC 07 241 50859 
Page 10 
with other relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or 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 size of a company may be especially relevant when CIS notes discrepancies in the 
record and fails to believe that the facts asserted are true. Id. 
A review of the record with respect to the petitioner's staffing levels undermines the petitioner's claim that 
the beneficiary would perform primarily managerial activities associated with the petitioner's marketing and 
expansion activities. The petitioner has established that it employs two cashiers and an ownedmanager. The 
petitioner operates one convenience store that is open for business for 83 hours per week and claims that its 
three-person staff is sufficient to operate the store. While the petitioner claims that the beneficiary would not 
be required to participate in the day-to-day operations of the store, it has not provided a financial plan to 
support its claim that it is prepared to undertake an expansion project requiring the full-time services of a 
marketing manager. The record shows that the director did take into consideration the petitioner's overall 
purpose and stage of development, and properly concluded that the petitioner had not established that it has a 
reasonable need for a full-time manager to oversee its marketing and expansion functions. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
by the petitioner in a primarily managerial capacity. For this reason, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.