dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave.. N.W.. Rm. A3042 
Washington, DC 20529 
idmgffGy.a '45% dnleted -rra~tFr pvem L- U. S. Citizenship 
of pprsond 0- and Immigration 
File: SRC-03- 199-5375 1 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigratior. 
and Nationality Act, 8 U.S.C. 8 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUC'TIONS: 
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 ofice. 
obert P. Wiemann, ~irect6r 
Appeals Ofice 
SRC-03-199-5375 1 
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DISCUSSION: The Director, Texas 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 President as an L-IA 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality - . . 
Act (the Act), 8 U.S.C. § 1 10 1 (a)(15)(L). The petitioner is a corporation 
operates a convenience store. The petitioner claims that it is the affiliate located in 
Hyderabad, Pakistan. 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 stay. 
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 the beneficiary 
will be employed in a primarily managerial or executive capacity. Counsel further asserts that the director 
placed undue emphasis on the petitioner's small staff size, and failed to fully consider the beneficiary's duties. 
In support of these assertions, counsel submits a brief. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outliiled 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. $ 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)(CJ) 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 him/her to perform the intended 
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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. 5 214.2(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 I- 129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (I)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(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 management 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 10 1 (a)(44)(A) of the Act, 8 U.S.C. 9 1 101(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 super-vised, 
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 
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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. 5 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. 
In the initial petition filed on July 14, 2003, in an attachment to Form 1-129 the petitioner described the 
beneficiary's job duties as follows: 
The Beneficiary will continue to be employed as the President of the Petitioner, and will be 
responsible for performing the following duties for the Petitioner; such duties to include: 
hiring and firing managers; supervising subordinate employees; reviewing an [sic] analyzing 
sales data; establishing and implementing policies to manage and achieve marketing goals; 
review financial reports; review budgets and expense reports prepared by subordinate 
employees; managing the company; and overseeing marketing campaign developed by 
subordinate managers. 
In the performance of his duties, the Beneficiary will receive minimum supervision from the 
Board of Directors, and the Beneficiary will exercise wide discretion and latitude in the 
performance of his duties. 
On October 24, 2003, the director requested additional evidence. In part, the director requested an indication 
of the number of employees working for the petitioner and a description of their duties. 
In a response dated January 12, 2004, in part the petitioner submitted: (1) a copy of its IRS Form 940, 
Employer's Quarterly Federal Tax Return, for the fourth quarter of 2003; (2) a copy of its Texas State Form 
C-3 quarterly filing for the fourth quarter of 2003; and (3) a letter naming the employees and 
describing their duties. The letter repeated the previously submitted job description for the beneficiary, and 
discussed additional employees as follows: 
store Manager 
Duties include: locating vendors; resolving issues relating to defective or unacceptable goods - 
with vendors; purchase inventory; supervise subordinate employees; preparing employee 
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work schedule; preparing and maintaining inventory report; prepare sales report; preparing 
budget and expense reports; maintain records of underground petroleum storage tanks in 
accordance with state and federal environmental laws; reconcile all accounts and prepare 
daily sales report. 
ssistant ManagerICashier 
Duties include: Assist in preparing employee work schedule; maintainlorder inventory; 
preparing maintaining inventory report; prepare sales report; and assist in preparing budget 
and expense reports; reconcile all accounts and assist in preparing daily sales report; and 
operate cash register and credit card machine. 
Cashier 
Duties include: operate cash registerlcredit card machine; maintain business premises; and 
reconcile daily cash with sales receipts. 
ashier 
Duties include: operate cash registerlcredit card machine; maintain business premises; and 
reconcile daily cash with sales receipts. 
On February 5, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director stated the following: 
The petitioner has not submitted sufficient documentation in demonstrating that the 
[beneficiary] will perform duties which primarily require the [beneficiary] to plan, organize, 
direct and control the organization's major functions by working through other managerial or 
professional employees in the United States. A position will qualify as managerial or 
executive only if the duties are primarily managerial or executive in nature. First-line 
supervision of nonprofessional and non-managerial personnel does not establish eligibility. 
Further, a qualifying position does not include an employee who performs the tasks necessary 
to produce the product ancllor to provide the service(s) of the organization. 
The petitioning business has one (1) mini mart store and five (5) employees. When a 
company has a limited number of employees, it becomes questionable as to whether the 
operator of the business will be engaged primarily in managerial or executive duties. 
[I]t is apparent, in this situation, that the daily functions associated with running the business 
would be performed by the [beneficiary], and that these duties would not be totally devoted to 
purely managerial or executive functions. 
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On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a primarily managerial or 
executive capacity. Counsel further asserts that the director placed undue emphasis on the petitioner's small 
staff size, and cites three matters to support that "L-1 statutes and regulations were not intended to limit 
managers or executives to persons who supervise a large number of persons or large enterprise." Counsel 
states that the director "has also failed to take into account that the Beneficiary will be responsible for 
reviewing and seeking additional retail locations and that this important duty will not be delegated to any 
subordinate manager. . . ." Counsel further described the beneficiary's duties as follows: 
As the President of the Petitioner, the Beneficiary is responsible for not only overseeing the 
management of the retail location, but also reviewing additional retail locations. The 
Beneficiary's position will be solely executive or managerial and does not include doing day- 
to-day work of the business. 
The Beneficiary . . . will continue to be responsible for such duties, including; responsible for 
hiring and firing managers; Ten percent (10%) of the time supervising subordinate 
employees, including at least one manager, who will supervises [sic] and oversees 
subordinate employees; Fifteen percent (1 5%) overseeing preparation of sales and marketing 
reports; Fifteen percent (15%) reviewing and analyzing sales data; Fifteen perccnt (15%) 
establishing and implementing policies to manage and achieve marketing goals; Ten percent 
(10%) review and [sic] financial reports; Ten percent (10%) reviewing budgets and expense 
reports prepared by subordinate employees; Fifteen percent (1 5%) managing the company; 
and Ten percent (10%) overseeing marketing campaigns developed by subordinate managers. 
By overseeing preparation of sales and marketing reports, and reviewing an [sic] analyzing 
sales data; establishing and implementing policies to manage and achieve marketing goals; 
the Beneficiary will primarily be re5ponsible for managing the Marketing "department, 
function or component" of the Petitioner as he will devote more than Forty Percent (40°/o) of 
time to these activities. Furthermore, by reviewing financial reports, and reviewing budgets 
and expense reports prepared by subordinate employees; managing the company, and 
overseeing marketing campaign [sic] developed by subordinate managers, as well as 
reviewing additional retail locations, the Beneficiary will primarily supervise and control 
other managerial or professional employees, including the Store Manager. The Beneficiary is 
responsible for seeking additional business locations for the Petitioner, thus the Beneficiary 
directs the major component or function of the Petitioner's efforts to expand its operations. 
The Beneficiary does not have time to perform day-to-day activities. 
The Beneficiary has and will have the authority to recommend personnel actions, such as 
promotions, hiring, and firing of personnel supervised by him, and he has and will continue to 
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have wide authority and discretion over the marketing department and major component and 
function of the Petitioner. 
Upon review, counsel's assertions are not persuasive. 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. 
214.2(1)(3)(). 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. The petitioner must specifically state'whether the beneficiary is primarily employed in a 
managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant matter, the petitioner does not clarify whether it claims the beneficiary will be primarily 
engaged in managerial duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under 
section 101(a)(44)(B) of the Act. Counsel refers to the statutory definitions of both managerial capacity and 
executive capacity, thus, it appears that counsel intends to represent that the beneficiary will be primarily 
engaged in both managerial duties and executive duties. To sustain such an assertion, the petitioner must 
establish that the beneficiary meets each of the four criteria set forth in the statutory definition for executive 
duties under section 101(a)(44)(B) of the Act, and the statutory definition for managerial duties under section 
101(a)(44)(A) of the Act. At a minimum, the petitioner must demonstrate that the beneficiary's 
responsibilities will meet the requirements of one or the other capacity. 
The descriptions of the beneficiary's duties submitted by the petitioner are brief and vague, providing little 
insight into the true nature of the tasks the beneficiary will perform in the United States. For example, 
counsel states that the beneficiary will spend 15 percent of his time "overseeing [the] preparation of sales and 
marketing reports" and 15 percent of his time " establishing and implementing policies to manage and achieve 
marketing goals." Counsel later states that "the Beneficiary will primarily be responsible for managing the 
Marketing 'department, function or component' of the Petitioner as he will devote more than Forty Percent 
(30%) of time to these activities." Counsel then indicates that the beneficiary will spend 10 percent of his 
time "overseeing marketing campaigns developed by subordinate managers." Yet, the petitioner has not 
described its marketing department or provided sufficient explanation of the marketing efforts undertaken by 
its convenience store such that one can adequately understand these duties. Counsel provides that the 
beneficiary will spend 15 percent of his time "managing the company," yet this statement is clearly too broad 
to provide an understanding of what actual tasks the beneficiary will perform. Specifics are 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), am 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true 
nature of the employment. Id. The provided job descriptions do not allow the AAO to determine the actual 
tasks that the beneficiary will perform, such that they can be classified as managerial or executive in nature. 
Counsel indicates that the beneficiary will spend 10 percent of his time "reviewing budgets and expense 
reports prepared by subordinate employees." Among the descriptions of the duties of the beneficiary's alleged 
subordinates, the store manager is charged with "preparing budget and expense reports." The assistant 
managerlcashier is charged with "assist[ing] in preparing budget and expense reports." Yet, the petitioner has 
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provided no independent documentation that it in fact employs a store manager. Counsel provides that the 
store manager is In response to the director's request for evidence, the petitioner provided 
co ies of checks made out to its employees. Yet, the evidence of record does not contain a copy of a check to 
h 
Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting t e burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). The petitioner submitted its Texas State Form C-3 quarterly report for the fourth quarter 
of 2003 which indicates that- was an employee of the petitioner during that period. Yet, the 
quarterly report covers a period after the petition was filed. 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. Comm. quarterly report documents activity after the petition was filed, it 
is not probative of whether as an employee of the petitioner as of the date of filing. The 
petitioner did provide a copy of a check for the assistant managerlcashier. Yet, as this employee only assists 
with preparing budget and expense reports, it is unclear who has primary responsibility for this task. Absent 
evidence of a store manager, it is assumed that the beneficiary performs this task himself. Thus, counsel's 
assertion that the beneficiary reviews budgets and expense reports prepared by subordinate employees is not 
supported by evidence in the record, and this stated duty is unclear. 
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. As discussed above, at least 65 percent of the beneficiary's time has not been adequately 
described such that the beneficiary's duties can be classified as primarily managerial or executive in nature. 
Counsel asserts that the beneficiary supervises subordinate employees. 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 10 1 (a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101!a)(32) of the Act, 8 U.S.C. 5 1101(a)(32). states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
The petitioner did not provide the level of education required to perform the duties of its employees. Thus, 
the petitioner has not established that these employees possess or require a bachelor's degree, such that they 
could be classified as professionals. As discussed above, the petitioner has not provided documentation to 
support that it employs a store manager. Of the employees who have been documented, including an assistant 
managerlcashier and two cashiers, none have been shown to supervise subordinate staff members or manage a 
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clearly defined department or function of the petitioner, such that they could be classified as managers or 
supe~isors. Thus, the petitioner has not shown that the beneficiary's subordinate employees are supervisory, 
professional, or managerial, as required by section 10 1 (a)(44)(A)(ii) of the Act. 
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.2 (5th Cir. 1989), and Mars Jewelers, 
Inc. 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 furnished no evidence to establish that the facts of the instant petition are 
analogous to those in National Hand Tool Corp. v. Pasquarell or Mars Jewelers, Inc. v. INS. It is noted that 
both of the cases cited by counsel relate to immigrant visa petitions, and not the extension of a "new office" 
nonimmigrant visa. 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.R. 5 214.2(1)(14)(ii). 
Regarding Mars Jewelers, Inc. v. INS, 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 the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although 
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. 
Counsel further refers to an unpublished decision involving an employee of the Irish Dairy Board. In the 
unpublished decision, 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 
furnished no evidence to establish that the facts of the instant petition are analogous to those in the Irish Dairy 
Board matter. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. See Matter of lreusure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972). Furthermore, while 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are 
binding on all CIS employees in the administration of the Act, unpublished decisions are not similarly 
binding. As counsel has not discussed the facts of any of the cited matters, they will not be considered in this 
proceeding. 
Counsel asserts that the director "failed to take into account that the Reneficialy will be responsible for 
reviewing and seeking additional retail locations." However, the petitioner has provided no explanation or 
documentation of the beneficiary's efforts to establish new retail locations. Again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. at 190. Further, the fact that the petitioner 
intends to expand its business in the future is not probative of its eligibility as of the filing date. 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 l&N Dec. 248 (Reg. Comm. 1978). 
The director stated that the beneficiary's "duties would not be totally devoted to purely managerial or 
executive functions." The AAO notes that it is permissible for the beneficiary to perform some non- 
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qualifying tasks, so long as his duties are primarily managerial or executive in nature. See 8 C.F.R. 
5 214.2(1)(3)(ii). Yet, as discussed above, the petitioner has failed to establish that the majority of the 
beneficiary's time will be devoted to managerial or executive duties. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States 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 is not sufficiently operational 
after one year, the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner 
has not established that it has reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
or managerial capacity, as required by 8 C.F.R. 5 214.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. 
Beyond the decision of the director, the petitioner has not established that it has been doing business in the 
United States for the previous year as required by 8 C.F.R. 5 214.2(1)(14)(ii)(B). The petitioner's articles of 
incorporation reflect that it was incorporated on June 24, 2002. While the petitioner provided documentation 
to show that it purchased a convenience store on June 10, 2003, it has not shown that it was engaged in "the 
regular, systematic, and continuous provision of goods and/or services" prior to that date. See 8 C.F.R. 
3 214.2(l)(ii)(H). The petitioner submitted copies of its bank statements, yet all cover activity from June 2003 
or later. The copies of paychecks issued to the petitioner's employees are dated July 1,2003. Thus, while the 
petitioner has shown that it was doing business during the two months prior to filing the present petition, the 
evidence of record does not support that the petitioner has been doing business "for the previous year." See 
8 C.F.R. 5 214.2(1)(14)(ii)(B). For this additional reason, the appeal will be dismissed. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, I'nc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 1 ), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.