dismissed L-1A Case: Retail

identifying data deleled to 
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PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
SRC 04 114 51348 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101 (a)(15)(L) 
IN 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 Mher inquiry must be made to that office. 
Robert P. Wiemann, ~&ef 
\ . - Administrative Appeals Office 
i 
DISCUSSION: The director, Texas 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 extend the employment of its president and general 
manager as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation 
organized under the laws of the State of Texas and claims to be en a ed in the retail sale of gasoline and food 
products. The petitioner claims that it is the subsidiary of , located in Mumbai, India. The 
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beneficiary was initially granted a one-year period of stay to open a new o ice 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 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 disputes the director's 
conclusion and submits additional evidence. 
To establish eligibility for the L-1 nonirnmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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 
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. 
 2 14.2(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 (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 managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The primary 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. § 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 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 
Page 4 
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, the petitioner in its March 11, 2004 letter described the beneficiary's job duties as 
follows: 
[The beneficiary] establishes goals and policies of [the petitioner] and exercises discretionary 
decision-making authority based upon policies and procedures developed by [the foreign 
entity]. [The beneficiad also hires and supervises personnel and assumes sole responsibility 
of all discretionary actions taken by [the petitioner]. In addition, [the beneficiary] has the 
overall executive responsibility for developing, organizing, and establishing the purchase, 
sale, and service in the U.S. domestic market. His other duties includes [sic]: (i) identifying, 
recruiting, and building a management team and staff with background and experience in the 
U.S. market; (ii) hiring, discharging, and transferring employees according to work 
performance and production needs; (iii) leasing equipment and retail service facilities; [iv] 
negotiating and supervising the drafting of service agreements; [v] overseeing the legal and 
financial due diligence process and resolving any related issues; [vi] developing trade and 
consumer market strategies based on guidelines formulated by the shareholders and directors; 
[vii] preparing and analyzing reports on labor cost and production operations to determine 
whether operating cost standards are being met; and [viii] developing and implementing plans 
to ensure [the petitionerl's profitable operation. 
Percentage of time spent on each duty: 
Description of Duties 
 Time Spent % 
Management DecisionsITeam Building 40% 
Business Negotiations 15% 
Financial Decisions 10% 
Supervision of management staff and company functions 15% 
Organizational Development of Company 20% 
Page 5 
On April 12, 2004, the director requested additional evidence. 
 Specifically, the director requested the 
following: (1) the business hours of the petitioner's U.S. subsidiary; (2) the Employer's Quarterly Federal Tax 
Reports ending March 2004 for both the petitioner and its U.S. subsidiary; (3) the employee that works the 
first shift for the petitioner's U.S. subsidiary; (4) the employee that works the second shift for the petitioner's 
U.S. subsidiary; (5) a copy of the U.S. subsidiary's franchise agreement; (6) information on whch 
employeelofficer attended franchise meetings or training classes; (7) a copy of a lease for the petitioner from 
March 2003 to January 2004; and (8) photographs of the space used by the beneficiary to identify and recruit 
a management team and staff, to develop trade and consumer market strategies, and to analyze reports. 
In response, the petitioner submitted some of the requested information and documentation, along with 
explanations of why the remaining, requested documentation was unavailable. In addition, in the letter dated 
July 9,2004, counsel for the petitioner provided the following, additional job description for the beneficiary: 
[The beneficiary] is the primary officer responsible for the creation, implementation and 
monitoring of marketing operations for the US company. [The beneficiary] formulates all 
company policies and will execute expansion strategies for [the petitioner]. He also 
continues to explore further business investments for the foreign company. As [plresident, 
[the beneficiary] handles all financial arrangements and oversees our overall financial 
administration. To accomplish these goals, [the beneficiary] has been given the authority to 
engage in market analysis, negotiate and enter into contracts on behalf of the company, hire 
employees, direct their training, dismiss employees, and oversee domestic operations. [The 
beneficiary] has been granted broad discretion over the day[-]to[-]day operations of [the 
petitioner]. 
On November 16, 2004, the director denied the petition. The director determined that the petitioner had not 
reached the point where it could support a full-time president. As such, the director concluded that the 
petitioner failed to show that the beneficiary would be primarily employed in an executive capacity. 
On appeal, counsel for the petitioner asserts in his brief that, while the petitioner has faced set-backs, it has 
become a thriving and growing business that is able to support the executive capacity position held by the 
beneficiary. Counsel also submitted the following additional job description: 
The beneficiary, acting as the [plresident of the [clorporation, is performing in the exclusive 
executive capacity. 
He functions at the top level within the organizational hierarchy. 
He manages the organization, supervises and controls the work of store manager. 
He enjoys the sole authority to hire and fire his employees. 
He exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 
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. 
2142(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. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. 
In the March 11, 2004 letter submitted with the petition, the petitioner claimed that the beneficiary would 
serve in "an executive position." On appeal, although counsel for the petitioner claims in part that the 
beneficiary is acting in an "exclusive executive capacity," he claims elsewhere in the same brief that the 
beneficiary is being employed in a "managerial/executive" capacity and provides a brief job description that 
paraphrases the statutory and regulatory definition of managerial capacity. As such, it remains unclear 
whether the beneficiary is claiming to be primarily engaged in managerial duties under section 101 (a)(44)(A) 
of the Act or primarily executive duties under section 101(a)(44)(B) of the Act, or whether the petitioner is 
attempting to offer a new position on appeal.' Assuming the petitioner is seeking to qualify the beneficiary 
under either category, a beneficiary may not claim to be employed as a hybrid "executive/manager" and rely 
on partial sections of the two statutory definitions. If the petitioner chooses to represent the beneficiary as 
both an executive and a manager, it must establish that the beneficiary meets each of the four criteria set forth 
in the statutory definition for executive and the statutory definition for manager. 
On review, whether the petitioner is seeking to qualify the proffered position as managerial or executive, 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 "establish[ing] goals and policies," "developing trade and consumer market 
strategies," and "developing and implementing plans." The petitioner did not, however, define the goals, 
policies, or plans to be established and/or implemented, or clarify who actually would implement the trade 
and consumer market strategies to be developed by the beneficiary. 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)). 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 ofreiterating 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). 
1 
 It is noted that the claim that the beneficiary would be employed primarily in a managerial capacity is made 
for the first time on appeal. A petitioner cannot offer a new position to a beneficiary, or materially change a 
position's title, its level of authority within the organizational hierarchy, or the associated job responsibilities 
after a petition is filed. The petitioner must establish that the position offered to the beneficiary when the 
petition was filed merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 
17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to Citizenship and Immigration Services (CIS) requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of managerial capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. 5 
1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as "manag[ing] the organization," 
"supervis[ing] and control[ling] the work of [a] store manager," "enjoy[ing] the sole authority to hire and fire 
employees," and "exercis[ing] discretion over the day-to-day operations of the activity or function for which 
the employee has 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. v. Sava, 724 F. 
Supp. at 1 108, aff'd, 905 F. 2d 41 ; Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In addition, the petitioner describes the beneficiary as negotiating contracts, providing marketing analysis, 
leasing equipment and retail service facilities, preparing reports, and implementing plans. Since the 
beneficiary will actually negotiate the contracts, market the petitioner's product/services, lease equipment and 
space, prepare reports, and implement plans, he will be performing tasks necessary to provide a service or 
product, and these duties will not be considered managerial or executive in nature. 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. Matter of Church Scientology International, 19 I&N Dec. 
593,604 (Comm. 1988). 
Moreover, although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does 
not establish that the petitioner has any employees. The first quarter 2003 Texas wage statement submitted by 
the petitioner indicates that it only employed one individual, the beneficiary, in the second and third months 
of that year. In the request for evidence, the director specifically asks the petitioner to submit its quarterly tax 
report for the quarter ending March 2004. In response, however, counsel for the petitioner states that "[as] all 
company operations are pursued through [the petitioner's U.S. subsidiary], all relevant tax records are under 
the name [of its subsidiary]." An examination of those records, however, reveal that the beneficiary was not 
being paid by the petitioner's subsidiary. Furthermore, no explanation is given as to why the petitioner 
completed one quarterly wage report in 2003 but discontinued that practice after that time, or why there is no 
evidence that the beneficiary was employed by either the petitioner or the beneficiary apart from February and 
March of 2003. 
Irregardless of the lack of evidence concerning the beneficiary's employment and maintenance of status, the 
petitioner claims that the petitioner conducts its business operations through its U.S. subsidiary and that the 
beneficiary manages and directs the employees of its subsidiary. Even if the staff of a subsidiary qualified as 
employees of the petitioner, which they do not, the record still does not establish that the subordinate staff is 
composed of supervisory, professional, or managerial employees. See section 10 1 (a)(44)(A)(ii) of the Act. 
Here, the petitioner asserts that the beneficiary manages the manager of the petitioner's subsidiary, who in 
turn manages the shift supervisorhack-up cashier, who in turn oversees the work of two cashier/clerks. 
Based on the quarterly wage statement submitted for the U.S. subsidiary, however, the two cashierlclerks 
appear to only be employed part-time. Therefore, given (I) the two shifts necessary to cover the operational 
hours of the U.S. subsidiary, (2) the part-time employment of two of the four employees, and (3) the inability 
for both the manager and supervisor to cover both shifts for the entire week and have a subordinate employee 
at all times, the petitioner's claimed organizational chart is not credible and is not supported by the evidence 
of record. Therefore, at most, it would appear that the beneficiary would be a first-line supervisor and, as 
such, 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. Because the 
beneficiary is primarily supervising a staff of non-professional employees at another company, the beneficiary 
cannot be deemed to be primarily acting in a managerial capacity for the petitioner. 
The record is not persuasive in demonstrating that the beneficiary will be employed in a primarily managerial 
or executive capacity. Whether the petitioner will eventually reach the point where it can support such a 
position is irrelevant for purposes of the current matter. The petitioner must establish eligibility at the time of 
filing the nonirnmigrant 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. 
Furthermore, 8 C.F.R. 8 214.2(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 reached the point that it can employ the beneficiary in a predominantly managerial or executive 
position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. 8 2 14.2(1)(3). 
Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner has 
been engaged in the regular, systematic, and continuous provision of goods andlor services in the United 
States for the entire year prior to filing the petition to extend the beneficiary's status. In fact, the petitioner did 
not submit any evidence of the petitioner's business activities in the United States. Instead, as noted above, 
the petitioner claimed that all of its business operations were conducted through its U.S. subsidiary. For 
purposes of proving that the petitioner is doing business in the United State, however, the business activities 
of a petitioner's subsidiary are irrelevant. A corporation is a separate and distinct legal entity from its owners 
or stockholders. See Matter of M, 8 I&N Dec. 24,50 (BIA 1958, AG 1958); Matter ofAphrodite Investments 
Limited, 17 I&N Dec. 530 (Cornrn. 1980); and Matter of Tessel, 17 I&N Dec. 63 1 (Act. Assoc. Comrn. 1980). 
Therefore, the business activities of a separate and distinct company, the U.S. subsidiary, do not establish that 
the petitioner itself is doing business in the United States. 
Even assuming arguendo that the business activities of a subsidiary establish that the parent company is also 
doing business, the petitioner in this matter also failed to submit sufficient evidence that its U.S. subsidiary 
was doing business for the year prior to the filing of the instant petition. The few months of bank statements 
and bills for the U.S. subsidiary are insufficient to establish that it had been doing business since March 2003. 
Moreover, the fact that the U.S. subsidiary was not incorporated until October 2003 makes it a legal 
impossibility for that entity to have conducted business prior to that date. Thus, pursuant to the regulation at 
8 C.F.R. 9 214.2(1)(14)(ii)(B), the petitioner is expected to submit evidence that it has been doing business 
since the date of the approval of the initial petition. In the instant matter, there is insufficient evidence that 
the petitioner or its U.S. subsidiary was doing business fi-om March 2003 through March 2004. For this 
additional reason the petition may not be approved. 
Furthermore, the petitioner has also failed to demonstrate that it has a qualifying relationship with the foreign 
entity. The regulation and case law confirm that ownership and control are the factors that must be examined 
in determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with Ml power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
In this matter, the petitioner claims that it is the subsidiary of the foreign entity, and in support of this 
assertion the petitioner submits a copy of its Articles of Organization, which indicate that its sole member is 
the foreign entity. As general evidence of a petitioner's claimed qualifying relationship, Articles of 
Organization alone are not sufficient evidence to determine whether a member maintains ownership and 
control of a corporate entity. The operating agreement, corporate bylaws, buy-sell agreement, and the 
minutes of relevant corporate meetings and, if applicable, stocks, the corporate stock certificate ledger, and 
stock certificate registry must also be examined to determine current ownership and control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all relevant documents, CIS is 
unable to determine the elements of ownership and control. 
Also beyond the decision of the director, the petitioner has failed to establish that it has secured sufficient 
physical premises to house its business. While the petitioner's U.S. subsidiary appears to have met this 
requirement, according to the letter dated July 9, 2004, the petitioner itself is still operating out of the 
beneficiary's home. The record further reflects that the petitioner is still exploring lease options but that it 
uses one dedicated room in his home to operate the business in the meantime. In this situation, the petitioner 
must at a minimum also establish that the residential zoning laws governing the residence permit the home 
business and its related business activities. Moreover, the petitioner has not described its anticipated space 
requirements for its claimed retail business, and the lease in question does not specify the amount or type of 
space secured. Based on the insufficiency of the information furnished, it cannot be concluded that the 
petitioner has secured sufficient space to house the petitioner's office. For this additional reason, the petition 
may not be approved. 
Finally, the regulation at 8 C.F.R. $ 214.2(1)(3)(v)(A) requires a petitioner that seeks to open a new office to 
submit evidence that it has acquired sufficient physical premises to commence doing business. In the present 
matter, either the petitioner did not comply with this requirement, misrepresented that it had complied, or the 
director committed gross error in approving the initial, new office petition without evidence of the petitioner's 
physical premises. Regardless, the approval of the initial petition may be subject to revocation based on the 
evidence submitted with this petition. See 8 C.F.R. 9 214.2(1)(9)(iii). 
Page 10 
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 fur denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9& 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if she shows that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
Ln 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. § 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. 
FURTHER ORDERED: The director shall review the prior L-1 nonirnmigrant petition approved on behalf of 
the beneficiary for possible revocation pursuant to 8 C.F.R. 8 214.2(1)(9).