dismissed L-1A Case: Retail

identifying data deleted to 
prevent clearly unwarranted ' 
invasion of personal privaqy 
U.S. Department of Homeland Sec~irity 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
File: WAC 05 101 53790 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 10 1 (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. 
Ro ert P. Wiemann, 
~-7gz' 
Administrative ~~~eals Office 
WAC 05 101 53790 
Page 2 
DISCUSSION: The Director, California 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 nonimmigrant petition seeking to extend the employment of its manager as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. Cj 1101(a)(15)(L). The petitioner, a California corporation, states that it is engaged in 
retail liquor and grocery sales. The petitioner claims that it is a subsidiary of - located in 
Birmingham, United Kingdom. The beneficiary was initially granted a one-year period of stay to open a new 
office in the United States and the petitioner now seeks to extend the beneficiary's status. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will 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 in his role as 
chief financial officer of the U.S. company, the beneficiary manages a function or component of the 
organization. Counsel further contends that the director mischaracterized the scope of the beneficiary's 
supervisory duties, and asserts that the beneficiary does not supervise any lower-level personnel. Finally, 
counsel contends that the director erred by concluding that the beneficiary primarily performs tasks necessary 
to produce the product or perform the services of the U.S. business. Counsel asserts that the beneficiary does 
not perform the day-to-day functions of operating the petitioner's retail store. Counsel submits a brief in 
support 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 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. 8 214.2(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. 
WAC 05 101 53790 
Page 3 
(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. fj 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 section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 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 
WAC 05 101 53790 
Page 4 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonimmigrant visa petition was filed on February 25, 2005. The petitioner indicated on Form 1-129 that 
the U.S. company has five employees, and seeks to continue to employ the beneficiary as its "manager." The 
petitioner stated that the beneficiary's duties are as follows: "Budgeting; coordination with UK operations; 
. planning the expansion of the US company; liason [sic] with customer, vendors, attorneys and accountants." 
The petitioner also included an organizational chart which depicts the beneficiary as the company's chief 
financial officer, reporting to the company president, Chamkaur Singh. The chart shows that the beneficiary 
supervises the manager-operations - who m turn superv~ses two store clerks 
and - a maintenance clerk- a bookkeeper (the beneficiary), and a stockroom 
assistant -. Therefore, the chart shows that the president also serves as a store clerk, the other 
store clerk also serves as a stockroom assistant, and the beneficiary serves as both chief financial officer and 
bookkeeper. The petitioner provided job descriptions for the maintenance clerk and two store clerks. The 
AAO notes that the employee identified as a store clerk on one of the job descriptions, 
 is 
identified as the "manager-operations" on the organizational chart. 
The petitioner submitted its California Forms DE-6, Quarterly Wage and Withholding Report, for all four 
quarters of 2004, which confirmed the employment of five individuals at the end of the year. Based on the 
reported wages, two of the employees - and, appear to be employed on a part-time 
basis. 
On March 7, 2005, the director requested additional evidence to establish that the beneficiary will be 
performing the duties of an executive or manager within the U.S. company, including: (1) a copy of the U.S. 
company's organizational chart identifying the beneficiary's position and listing all employees under the 
beneficiary's supervision by name and job title, along with a brief description of job duties, educational level 
and annual salarieslwages for the beneficiary's subordinates; and (2) evidence that the beneficiary supervises 
and controls the work of supervisory, professional or managerial employees, or manages an essential function 
WAC 05 101 53790 
Page 5 
within the organization. The director also requested IRS Forms 941, Employer's Federal Quarterly Tax 
Return and California Forms DE-6, although the petitioner submitted these documents with the initial petition 
filing. 
In a response dated March 25, 2005, the petitioner re-submitted the same organizational chart and provided 
the following job descriptions foi the beneficiary and the other employees: 
[The beneficiary] (Financial Officer) 
[The beneficiary] is responsible for purchasing all stock, dealing with salespersons for liquor 
companies beer merchandisers, soft drink suppliers and other vendors, establishing all prices 
for products, planning promotions and sales, supervising the activities of the operations 
manager and all personnel matters, incl;ding the hiring and firing of employees, preparing 
daily sales reports and handling all banking and tax matters. . . . 
(Operations Manager) 
is responsible for organizing, arranging and displaying stock, supervising the 
activities of the store clerks and preparing daily sales reports for the Financial Officer make 
decisions regarding the day to day operations of the business. has a Bachelor of 
Arts degree. He receives $7.75 per hour and works 35 to 40 hours per week. 
(Store Clerk) 
Amolok Singh is responsible for stocking and displaying merchandise, maintaining 
stockroom, assisting customers and acting as cashier. ~molok Singh has a high school 
diploma. He receives $7.50 per hour and works 18 to 20 hours per week. 
-. . ,-. . 
-' is responsible for stochng and displaying merchandise, assisting customers 
and acting as cashier. Chamkaur Singh has a high school diploma. He receives an annual 
salary of $24,0000.00. 
maintenance Clerk) 
is responsible for cleaning the premises of the store and assisting in the other 
e store clerk as indicated above. 
 has a high school diploma. She 
receives $6.75 per hour and works 12 to 15 hours per week. 
In response to the director's request for evidence that the beneficiary will manage a staff of supervisory, 
managerial or professional personnel, or a function or subdivision or the organization, counsel for the 
petitioner stated that the beneficiary, as chief financial officer, "manages that department or subdivision of the 
corporation." 
The director denied the petition on April 7, 2005, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a managerial or executive capacity under the extended petition. The 
director noted that although the beneficiary is identified as the company's chief financial officer, "there is no 
Financial Department or Subdivision within the petitioning organization for the beneficiary to manage." The 
WAC 05 101 53790 
Page 6 
director observed that the beneficiary also serves as the company's bookkeeper and "as such, the beneficiary 
himself must handles [sic] all of the petitioner's financial matters." 
The director further determined that the beneficiary's duties, as described by the petitioner, are tasks 
necessary to provide a service or produce a product and therefore determined that he would not be performing 
primarily managerial or executive duties. The director found that the beneficiary would not supervise a 
subordinate staff of professionals who would relieve him from performing non-qualifying duties. The director 
concluded that the U.S. entity does not contain the organizational complexity to support another managerial 
or executive position and that the preponderance of the beneficiary's duties will be directly providing the 
services of the petitioning company. 
On appeal, counsel objects to the director's conclusion that the beneficiary does not manage a department or 
subdivision of the petitioning organization, noting that section 101(a)(44)(A)(i) of the act "includes managing 
and directing, respectively, a function or component of an organization." (Emphasis in original). Counsel 
states: "[Tlhe fact that petitioner does not have a Financial Department per se in it's [sic] organizational chart 
does not mean that the petitioner failed to establish the criteria in the statute. Certainly one who is responsible 
for the financial matters of an organization must be deemed to manage and direct a function or component of 
that organization." 
Counsel further contends that the director mischaracterized the beneficiary's supervisory authority to include 
the company's lower-level clerks and stoclcroom assistant. Counsel claims that the beneficiary supervises only 
the operations manager, a supervisory employee. Thus, counsel claims that the scope of the beneficiary's 
supervisory authority falls within the definition of managerial capacity pursuant to section 101(a)(44)(A)(ii) 
of the Act. 
Finally, counsel disputes the director's finding that the beneficiary primarily performs the tasks necessary to 
produce the product or perform the services of the petitioner's business. Counsel asserts that since the 
petitioner operates a retail liquor and grocery store, "the tasks necessary to produces [sic] the product or 
perform the services of petitioner's business are maintenance of the premises. . ., receiving of the products 
that the business sells, displaying the products, waiting on customers and collecting payment from customers 
for the product it sells." Counsel asserts that all of these tasks are performed by subordinate staff, while the 
beneficiary's duties involve "purchasing of the products that the business sells, establishing the prices of 
products and planning promotions and sales. While the beneficiary's duties are indispensable to the operation 
of a retail store, they related to matters of policy or how the business is run." Counsel further asserts that the 
beneficiary's duties concerning financial matters, such as preparing daily sales reports, bookkeeping and 
handling banking and tax matters, "have nothing to do with the actual sale of products to customers." 
Upon review of the petition and supporting evidence, 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, the AAO 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. 
WAC 05 I01 53790 
Page 7 
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, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the requisite 
authority, but that a majority of his or her duties are related to operational or policy management, not to the 
supervision of lower-level employees or the performance of the duties of another type of non-managerial or 
non-executive position. 
In the instant matter, the petitioner has failed to show that non-qualifying duties will not require the majority 
of the beneficiary's time. The petitioner has provided a brief explanation of the beneficiary's job duties which 
describes an employee who primarily performs non-managerial and non-executive tasks related to the 
petitioner's day-to-day purchasing and bookkeeping functions. Specifically, the petitioner indicates that the 
beneficiary is responsible for purchasing all inventory for the store, communicating with vendors, 
implementing sales promotions, bookkeeping, preparing daily sales reports, paying bills, and handling 
banking and tax matters. These duties, while essential to successful operation of the petitioner's store, do not 
rise to the level of managerial or executive capacity as contemplated by the statutory definitions. 
As correctly noted by the director, an employee who "primarily" 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 'I., 19 I&N Dec. 593, 
604 (Comm. 1988). While the petitioner's lower-level employees may perform the day-to-day. duties 
associated with stocking and selling goods in the petitioner's retail store, counsel's focus on these particular 
tasks is misplaced. Job duties performed in connection with a business' marketing, purchasing, finances and 
general administration are non-qualifying if they involve the actual performance of the function. As discussed 
above, the beneficiary is personally performing these non-qualifying tasks rather than managing or 
supervising the performance of these routine duties by other subordinate employees. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner,has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101 (a)(44)(A) and 
(B) of the Act. The petitioner bears the burden of documenting what portion of the beneficiary's duties will be 
managerial or executive and what proportion will be non-managerial or non-executive. Republic of Transkei 
v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Here, the petitioner lists the beneficiary's duties as including 
both managerial and administrative or operational tasks, but fails to quantify the time the beneficiary spends 
on them. This failure of documentation is important because several of the beneficiary's daily tasks, as 
discussed above, do not fall directly under traditional managerial duties as defined in the statute. However, 
based on the job description provided and as discussed further below, it is reasonable to assume, and has not 
been shown otherwise, that the beneficiary primarily performs purchasing, bookkeeping and other non- 
qualifying tasks that prevent him from serving in a "primarily" managerial or executive capacity. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. Furthermore, when examining the 
WAC 05 101 53790 
Page 8 
managerial or executive capacity of a beneficiary, Citizenship and Immigration Services (CIS) reviews the 
totality of the record, including descriptions of a beneficiary's duties and those of his or her subordinate 
employees, the nature of the petitioner's business, the employment and remuneration of employees, and any 
other facts contributing to a complete understanding of a beneficiary's actual role in a business. The evidence 
 - 
must substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement 
in an organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not 
probative and will not establish that an organization is sufficiently complex to support an executive or 
manager position. An individual whose primary duties are those of a first-line supervisor will not be 
considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the 
employees supervised are professional. Section 10 1 (a)(44)(A)(iv) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's claimed 
subordinate, the operations manager, is employed in a supervisory position. Instead, the record indicates that 
the beneficiary's subordinates, including the operations manager, perform the actual day-to-day tasks of 
operating the petitioner's retail store. Although Malkit Singh is identified on the petitioner's organizational 
chart as "manager-operations," the initial job description submitted for this employee identified him. as a 
"store clerk." 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). It also appears that the petitioner has attempted to add complexity to its 
organizational structure by assigning more than one job title to various employees, including identifying the 
company president as a "store clerk." To the extent that the beneficiary supervises lower-level employees, the 
petitioner has not provided evidence of an organizational structure sufficient to elevate the beneficiary to a 
supervisory position that is higher than a first-line supervisor of non-professional employees. Pursuant to 
section 10 1 (a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial or 
executive under the statutory definitions. 
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 
Immigration 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. 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. tj 214.2(1)(14)(ii)(D). 
The regulation at 8 C.F.R. 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 sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and administrative 
tasks, the petitioner is ineligble by regulation for an'extension. 
The petitioner operates a retail grocery and liquor store and employs three full-time employees and two part- 
time employees to perform all of the day-to-day functions of ordering merchandise and supplies, arranging 
and stoclung merchandise displays, cleaning the store, processing customer purchases, receiving deliveries, 
reconciling daily cash register receipts and many other routine duties. Based on the petitioner's 
representations, it does not appear that the reasonable needs of the petitioning company might plausibly be 
WAC 05 10 1 53790 
Page 9 
met by a president, a chief financial officerhookkeeper, a part-time cashier, an "operations manager," and a 
part-time maintenance employee. Regardless, the reasonable needs of the petitioner serve only as a factor in 
evaluating the lack of staff in the context of reviewing the claimed managerial or executive duties. The 
petitioner must still establish that the beneficiary is to be employed in the United States in a primarily 
managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, 
the petitioner has not established this essential element of eligibility. In the instant matter, the petitioner has 
not reached the point that it can employ the beneficiary in a predominantly managerial or executive position. 
On appeal, counsel claims that the beneficiary qualifies as the manager of a function or component of the 
organization, asserting that "certainly one who is responsible for the financial matters of an organization must 
be deemed to manage and direct a function or component of that organization." 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)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The term "essential function" is not defined by 
statute or regulation. . If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must provide a detailed job description that 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. 8 C.F.R. 
 214.2(1)(3)(ii). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than pe$orms the 
duties related to the function. An employee who primarily performs the tasks necessary to produce a product 
or to provide services is not considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. 
I.N.S., .-67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988)). 
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. The 
fact that the beneficiary is the only employee in the company responsible for purchasing and financial 
activities will not elevate his position to that of a function manager. In such a situation, the AAO recognizes 
that other employees cany 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 manager7' by the 
Immigration Act of 1990 simply eliminates the requirement that a beneficiary must directly supervise 
subordinate employees to establish employment in a managerial capacity. However, the statute continues to 
require that an employee perform primarily managerial or executive duties in order to qualify for this visa 
classification. Moreover, federal courts continue to give deference to CIS'S interpretation of 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 employee7.s duties might be 
managerial as opposed to operational. See Boyang Ltd. v. INS, 67 F.3d 305(Table), 1995 WL 576839 at *5 
(9" 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. 
US. 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). 
WAC 05 101 53790 
Page 10 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity under the extended petition. 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 291 of the Act, 8 U.S.C. fj 1361. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.