dismissed L-1A Case: Retail

U.S. Deputment of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: LIN 03 003 52195 Office: NEBRASKA SERVICE CENTER Date: Alj~ 1 5 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(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. 
( Robert P. Wiernann, ~dctor 
dministrative Appeals Office 
6 
LIN 03 003 52195 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director. Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 2002 and 
claims to be a retail business. The petitioner claims to be a subsidiary of .- 
located in Hatem, Jordan. The petitioner seeks to employ the beneficiary temporarily in the 
United States as operations manager and president of its new office at an annual salary of $40,000.00. The 
director denied the petitioner after determining that the petitioner had failed to submit sufficient evidence to 
establish: (I) that a qualifying relationship exists between the U.S. entity and the foreign entity; ('2) that the 
beneficiary will be employed by the U.S. entity in a managerial or executive capacity; or (3) that the U.S. 
entity will be able to support a managerial or executive position within one year of approval of the petition. 
On appeal, counsel disagrees with the director's decision and states that the evidence is sufficient to establish 
the existence of a qualifying relationship between the U.S. and foreign entities; that the evidence demonstrates 
that the beneficiary will be employed by the U.S. entity in a managerial or executive capacity; and that the 
U.S. entity will be able to support a managerial or executive position within one year of approval of the 
petition. 
To establish L-1 eligibility under section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. Q 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer, or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a fm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
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. 
LIN 03 003 52195 
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(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 himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 3 214.2(1)(3)(v) states that if the petition indicates that the beneficiary is coming to 
the United States as a manager or executive to open or to be employed in a new office in the United States, the 
petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new off~ce have been secd, 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) or 
(C) of this section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
The first issue in this proceeding is whether a qualifying relationship exists between the U.S. and foreign 
entities. 
The regulations at 8 C.F.R. 5 214.2(l)(l)(ii)(G) state: 
QualiJLing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (I)( l)(ii) of this section; 
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(2) Is or will be doing business (engaging in international mde is not 
required) as an employer in the United States and in at least one other 
country directly or through a parent, branch, affiliate, or subsidiary for 
the duration of the alien's stay in the United States as an intracornpany 
transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the 
Act. 
The regulations at 8 C.F.R. $8 214.2(1)(l)(ii) define, in pertinent part, "parent," "branch," "subsidiary," and 
"affiIiateU as: 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operation division or office of the same organization housed in a 
different location. 
(K) Subsidiav means a fm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
(L) Afiliate means 
(1) One of two subsidiaries both of which are owned and controlled by the same parent 
or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or proportion 
of each entity. 
In the instant matter, the petitioner claims to be a subsidiary of the foreign entity. The petitioner stated in the 
petition that the foreign entity owns 100 percent of the stock in the U.S. entity. The petitioner submitted as 
evidence, translated copies of the foreign entity's business registration, employment description, and 
employment permission issued by the Ministry of Industry and Trade, Department of Trade and Industrial 
Record. The petitioner also submitted copies of the U.S. entity's Certificate of Incorporation and stock 
certificate number 1. 
The director noted that the stock certificate submitted bv the txtitioner indicated that 500 shares of stock had 
been issued to.," but did not contain the name of the entity owned. The 
director subsequently requested that the petitioner submit substantial documentary evidence to establish the 
qualifying relationship between the United States entity and the beneficiary's foreign employer. The director 
further requested that the petitioner submit annual reports, statements from the organization's president or 
corporate secretary, articles of incorporation, financial statements, and/or evidence of ownership of aII 
outstanding stock for both entities. 
LIN 03 003 52195 
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In response to the director's request for evidence, counsel stated that the name of the petitioning entity on the 
stock certificate was omitted by error. The petitioner submitted an amended copy of stock certificate number 
. The petitioner submitted a stock subscriber's agreement dated December 9, 2002, and a letter fro* 
bated October 12, 2002, which stated that he was the owner of all the common stock of the 
U.S. entity. The mtitioner also submitted a co y of a wire transfer, dated November 4, 2002, from- 
7. the amount of $109.983.00, and a copy of three Arab Bank 
:r 1, 2002, and October 1, 2002. The checks were made out to 
The director subsequently denied the petition stating that based upon a review of the amended stock 
certificate it did not appear that a qualifying relationship legally existed between the U.S. entity and the 
beneficiary's foreign employer at the time the petition was filed. 
On appeal, counsel disagrees with the director's decision and asserts that in the state of Ohio stock certificates 
are considered internal documents issued in the ordinary course of business. Counsel further asserts that 
stock certificates in the state of Ohio are neither filed nor otherwise registered, and thus have no bearing on 
proving ownership. Counsel also asserts, "the ownership relationship is established by showing who has the 
equitable interest in a res." 
In this matter, the submission of an amended stock certificate and two personalized letters of stock ownership 
are insufficient to establish the existence of a qualifying relationship between the U.S. and foreign entities as 
required by 8 C.F.R. 8 214.2(1)(l)(ii)(G). Further, there has been no evidence presented to demonstrate that 
the monies sent towere in payment for shares of stock in the U.S. entity, and the 
amendment to the stock certificate was made subsequent to the filing of the petition. Matter of Michelin Tire 
Cop, 17 I&N Dec. 248 (Reg. Comm. 1978). The petitioner has failed to submit sufficient evidence to 
establish that a qualifying relationship exists between the U.S. and foreign entities. For this reason, the 
petition may not be approved. 
The second issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish 
that the beneficiary will be employed by the U.S. entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. !j 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
0) 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 
LIN 03 003 52195 
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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-today operations of the activity or 
function for which the employee has authority. A fust-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 4 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(i> Directs the management of the organization or a major component or 
function of the organization; 
( ii ) Establishes the goals and policies of the organization, component, or 
function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. 
The petitioner described the beneficiary's proposed duties in a letter dated September 26,2002, as: 
[The beneficiary] will join [the U.S. entity,] on a temporary assignment to fill the position of 
president. In this position he will be responsible for implementing plans and policies to 
conduct a viable business. negotiate, bid and enter into sales contracts, interview. hire, 
supervise, discipline, and fire, if necessary, employees. He will oversee expansion of the 
company and will exercise complete discretion as to all aspects of the business operations of 
the US company. 
In response to the director's request for evidence on this subject, counsel described the beneficiary's proposed 
duties as: 
The proposed duties of the beneficiary are to analyze the retail market industry in the United 
States, establish company marketing plans and policies to effectuate entry into the U.S. 
market, to implement said plans and policies to initiate a viable business, negotiate, bide and 
enter into sales contracts, interview, hire, supervise, discipline, and fire, if necessary. 
employees, oversee acquisitions and expansion of other companies, and exercise complete 
discretion with regard to all aspects of the business operations of the US subsidiary. The 
beneficiary will spend 10% of his time in analyzing, researching and negotiating the contracts 
to purchase the viable US retail business. He will spend 70% of the time in managing the day 
to day Esicl operations of the US entity and 20% of the time to communicate and implement 
the decisions and business plans for the US entity directed by the foreign entity. 
LIN 03 003 52195 
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The petitioner submitted a response letter, dated October 3, 2002, written by the beneficiary to the foreign 
entity, in which he described his efforts to locate investments for the foreign entity. The letter also contained 
a list of possible business opportunities in the Cleveland, Ohio area that the beneficiary had researched. 
The director stated that it appeared that the beneficiary was the sole employee of the U.S. entity, and that the 
petitioner's primary purpose in transferring the beneficiary from abroad may have been in the nature of a 
general speculative investment venture. The director further stated that as such, the U.S. entity would 
constitute a mere agent or office. The director also stated that the record demonstrated that the beneficiary 
would be primarily involved in the day-today business activities of the organization. 
On appeal, counsel argues that the U.S. entity's Articles of Incorporation include a broad description of 
authority to allow the company to realize growth. Counsel further argues that although the beneficiary is the 
sole employee, it is anticipated that he will hire a supporting staff as the business progresses. Counsel 
concludes by asserting that the business is a start-up business, and as such, must begin its operation in order to 
hire additional employees. 
In evaluating whether the beneficiary is employed in a primarily managerial capacity, the AAO will look first 
to the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 5 214.2(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. Further, the petitioner nlust show 
that the beneficiary will perform the high-level responsibilities that are specified in the definitions, and that 
the beneficiary will primarily perform these specified responsibilities and will 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 
(9& Cir. July 30, 1991). Although the regulations do not require proof that the duties performed by the 
beneficiary in the first year were entirely managerial or executive, there must be some evidence of managerial 
or executive activity to substantiate the hierarchical position. In the instant matter, there is insufficient 
evidence to show that the beneficiary will perform the high-level responsibilities as defined, or that he will 
primarily perform those duties rather than spending the majority of his time performing day-today functions 
of the organization. 
The petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the 
beneficiary's duties include implementing plans and policies, analyzing the retail market industry, exercising 
complete discretion over the U.S. entity's business operations, and overseeing the acquisition and expansion 
of other companies. The petitioner did not, however, define the petitioner's plans and policies, clarify the 
company's analysis processes, or demonstrate the acquisition and expansion of other companies. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Treasure CraJi of California, 14 I&N Dec. 190 (Reg. Comn~. 1972). 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), ard, 905 F.2d 41 (2d. Cir. 
1990). 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(A) and (B) of the Act, 
8 U.S.C. 5 1101(a)(44)(A) and (B). For instance, the petitioner depicted the beneficiary as directing the 
LIN 03 003 52 195 
Page 8 
management of the organization, establishing the company's plans and policies, and exercising discretionary 
decision-making authority. However, conclusory assertions regarding the beneficiary's employment capacity 
are not sufficient to meet the petitioner's burden of proof. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. at 1108; Avyr Associates 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The petitioner has failed to submit sufficient evidence to 
establish that the beneficiary will be employed by the U.S. entity in a managerial or executive capacity. For 
this additional reason, the petition may not be approved. 
The third issue in this proceeding is whether the petitioner has submitted sufficient evidence to show that the 
U.S. entity will be able to support a managerial or executive position within one year of operation. 
In response to the director's request for additional evidence, counseI inferred that the foreign entity would be 
able to provide fi . entity. The petitioner submitted copies of wire transfers and bank 
drafts made out to by the foreign entity in support of its claim. 
The director determined that, absent a comprehensive business plan it could not be shown that the U.S. entity 
would be in a position to support a managerial or executive position within one year of approval of the 
petition. 
While counsel claims that the U.S. entity's Articles of Incorporation include a broad description of authority 
to allow the company to realize growth, the record does not support a finding that the U.S. entity will be able 
to support a managerial or executive position within one year of operation in compliance with the regulatory 
requirements for a "new ofice." See 8 C.F.R. 5 214.2(I)(3Xv)(C). The petitioner claims that the U.S. entity 
is a newly established retail business. When a new business is established and commences operations, the 
regulations recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of activities not normally performed by employees at the executive or managerial level 
and that often the full range of managerial responsibility cannot be performed. In order to qualify for L-l 
nonimrnigrant classification during the first year of operations, the regulations require the petitioner to 
disclose the business plans and the size of the United States investment, and thereby establish that the 
proposed enterprise will support an executive or managerial position within one year of the approval of the 
petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic expectation that the 
enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, 
where there would be an actual need for a manager or executive who will primarily perform qualifying duties. 
Further, the record does notdemonstrate that the U.S. entity will contain the organizational complexity to support 
the proposed managerial or executive position. Although the petitioner anticipates hiring additional employees in 
the future, this anticipated activity has not been substantiated by independent documentary evidence. In 
addition, the petitioner failed to submit a business plan that shows, in detail, how the new business will be fulIy 
operational within one year, with employees in place and doing business by providing a product or service. 
Although the evidence demonstrates that the petitioner intends to hire new employees it has not provided detailed 
position descriptions to show that they will be employed in other than non-professional positions. There has been 
no evidence presented that details the time frame in which new employees will be hired, what the new hires duties 
will consist of, or how the beneficiary's duties will interrelate with that of the new hires. There is no evidence to 
show that the beneficiary will be supervising a subordinate staff of professional, managerial, or supervisory 
personnel who will relieve the beneficiary from performing nonqualifying duties. Furthermore, the petitioner's 
evidence is not sufficient in establishing that the beneficiary will be directing the management of the organization 
or a major component or function of the organization; establishing the gods and policies of the organi;.zition; 
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exercising wide latitude in discretionary decision-making; and receiving only general supervision or direction 
from higher-level executives. 
Rather than the beneficiary functioning at a senior level within the organizational hierarchy within one year of 
operation in the United States, it appears from the record that he will continue to perform the day-today 
services of the business. Without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. Matter of Obaigbena, 19 I&N Dec. 533,534 (BIA 1988); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The petitioner has failed to submit suficient 
evidence to show that the U.S. entity wiIl be able to support a managerial or executive position within one 
year of operation. 
Although not directly addressed by the director, another issue in this proceeding is whether the petitioner has 
submitted sufficient evidence to establish that the beneficiary had been employed by the foreign entity in a 
qualifying managerial or executive capacity for one continuous year within three years preceding the filing of 
the petition. 
The petitioner initially stated in the petition that the beneficiary had been employed by the foreign entity in 
the capacity of operations manager from July I999 to January 2001. The petitioner described the 
beneficiary's duties at the foreign entity as: "in charge of business operations, implemented plans and policies 
to conduct a viable business, negotiated, bid and entered into sales contracts, interviewed, hired, supervised, 
disciplined, and fired, if necessary, employees and personnel. He exercised complete discretion as to all 
aspects of the business operations of the parent company." In response to the director's request for evidence, 
counsel described the beneficiary's job duties abroad as: 
The beneficiary[%] qualifying employment abroad was in an executive/managerial capacity, 
he was serving as the directorimanager of operation since July 1999 until January 2001. . . . 
[The foreign entity] employs 20-30 people depending on the season. . . . The beneficiary's 
duties as a manager of operations of the foreign entity have been to conduct and supervise the 
day to day [sic] operations of the company, he was authorized to hire and fue the employees, 
he supervised the foreman and other workers and has the authority to create production 
incentives and he made the decision for work improvements if needed. 
Counsel further stated that the foreign entity employs four drivers, twelve cement machine operators, two 
managers, one architect, one construction engineer and builder, and three to nine construction workers- 
laborers on an as needed basis. 
There is insufficient evidence in the recmd to demonstrate that the beneficiary has been employed by the 
foreign entity primarily in a managerial or executive capacity. The job descriptions given are insufficient to 
demonstrate that the beneficiary directed the management of the organization, established goals and policies, 
exercised a wide latitude in discretionary decision making, supervised the work of other supervisory, 
professional, or managerial employees, or managed an essential function within the foreign entity. There is 
no evidence to show that the beneficiary supervised a subordinate staff of professional, managerial, or 
supervisory personnel who relieved the beneficiary from perfomring nonqualifying duties. Further, the 
petitioner's compliance with the director's request for evidence is marginal, at best. It appears from the 
evidence that the beneficiary performed the day-today functions of the organization, and perhaps supervised 
non-managerial subordinates. For this additional reason, the petition many not be approved. 
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Although not directly addressed by the director, another issue in this proceeding is whether the petitioner had 
secured sufficient physical premises to house its new office at the time the petition was filed. It is noted for 
the record that the petition was The petitioner initially submitted a lease 
and the U.S. entity, for the premises known as 
In the request for evidence, the director requested the petitioner to submit evidence to establish: , 
(1) Sufficient physical premises to house the new office have been secured; (Although 
you have submitted a copy of a lease, the lease does not state what kind of 
property is being leased. In addition, ptease submit photos of the physical 
premises of the plant/office builhing in the United States . . . . (Emphasis in 
original .) 
In response to the director's request for evidence, copy of a commercial lease 
agreement entered and the beneficiary, for the 
premises known as he petitioner also submittgd photographs of the premises interior 
and exterior. 
There has been insufficient evidence submitted to demonstrate that the petitioner had secured sufficient 
physical premises to house the new office at the time the petition was filed. The petitioner failed to respond 
to the director's requests concerning the initial lease agreement filed. The commercial lease agreement 
entered into on October 15, 2002, only after the director pointed out the deficiencies in the initial lease 
agreement and subsequent to filing the petition, will not be considered for purposes of eligibility. 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. 248 (Reg. Comrn. 1978). For this additional reason, the petition 
may not be approved. 
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. Q 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.