dismissed L-1A Case: Retail

U.S. Departmelit of Homeland Sec~~rity 
20 Massachusetts Ave. N.W., Rm. 3000 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: EAC 08 033 50835 Office: VERMONT SERVICE CENTER 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1101(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 further inquiry must be made to that office. 
I 
Administrative Appeals Office 
EAC 08 033 50835 
Page 2 
DISCUSSION: The Director, Vermont 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 beneficiary's employment as its 
president and chief executive officer as an L-1A nonimmigrant intracompany transferee pursuant to 
section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(15)(L). The 
petitioner, a corporation organized in the State of Texas, claims to be engaged in the retail sale of cell 
phone accessories and garments. The petitioner claims that it is the subsidiary of an entity it refers to as 
"Galleria in India." The beneficiary was previously granted one year in L-1A classification to open a new 
office and the petitioner seeks to extend the beneficiary's stay for an additional two years. 
On May 30, 2008, the director denied the petition, concluding that the petitioner did not establish that: (1) 
the beneficiary will be employed in the United States in a primarily managerial or executive capacity or 
that the petitioner had grown to the point where it could support the beneficiary in such a capacity; and 
(2) the foreign entity was still doing business and thus maintaining a qualifying relationship with the 
petitioner. On appeal, counsel contends that the director erred as a matter of law, and submits a detailed 
brief in support of his contentions. 
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. 
 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. 
EAC 08 033 50835 
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 alikn 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 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 management or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The first 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. 5 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 
EAC 08 033 50835 
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. 5 110 l(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 request for extension, filed on Form 1-129 on November 13, 2007, indicated that the petitioner, 
formed in 2006, currently employed one (1) person and had a gross annual income of $42,000. On the L 
Classification Supplement to Form 1-129, the petitioner stated that the beneficiary's duties in the United 
States were as follows: 
As managerlowner of the store he will be responsible for hiring and training all staff of 
merchandise the products for retail sale. He will purchase the items for display using the line 
of credit the home office in India has provided for him. He will establish accounting, cash 
flow, inventory and all other systems to [operate] this retail store. 
In its business plan, the petitioner submitted the following overview of the proposed role of the 
beneficiary: 
Contributions [of the beneficiary] to [the] business shall be: Oversee financial management 
and business expansion efforts as the President 1 Owner of the company. 
The management structure of the business shall be: Owner shall control overall business 
entity. Assistant Manager shall have supervisory control over all aspects of day to day 
activity of business. There shall be several shift managers whom will control individual 
shift[s] and have supervisory control over shift employees. 
The business plan further indicated that the petitioner would require an estimated 4 employees to run the 
operation in the United States. 
EAC 08 033 50835 
Page 5 
On February 11, 2008, the director requested additional evidence. Specifically, the director requested 
evidence to show that the petitioner had grown to the point where it could support the beneficiary in a 
primarily managerial or executive position. Specifically, the director requested evidence to demonstrate 
that the beneficiary would be relieved from performing non-qualifying duties. Moreover, the petitioner 
requested a complete position description for all employees of the petitioner, including the beneficiary, 
with a breakdown detailing the number of hours the employees devoted to each of their duties on a 
weekly basis. Finally, the director requested an organizational chart depicting the structure of the 
petitioning enterprise. 
In a letter dated May 6, 2008, counsel for the petitioner responded to the director's request. The 
petitioner submitted a copy of its Form 1120, U.S. Corporation Income Tax Return for 2007, which 
demonstrated that the beneficiary received $24,000 as compensation for 2007, and indicated that the 
beneficiary was the sole owner of the petitioner. The tax return also indicated that $6,400 was paid in 
wages during the year 2007. 
Regarding the staffing of the petitioner, an organizational chart was submitted, along with a description of 
each employee's position and duties associated therewith. Specifically, the evidence indicated the 
following organizational hierarchy: 
Beneficiary, President 
Description of Position: Evaluates performance of the manager who supervises the sales 
staff; monitors and oversees achievement of sales goals; reviews, formulates, and receives 
reports on the preparation of all sales, financial reports and statements; prepares budget with 
information provided by the manager; oversees other business-related activities including, but 
not limited to, business operations, reporting and accounting activities, record keeping, 
contract monitoring, claims management and auditing. 
Description of Position: Interviews and hires sales staff; evaluates performance of the sales 
employees and reconciles the daily sales and returns; responds to customer concerns and 
inquiries; trains the sales staff on operation of cash register, answering customer questions 
and re-stocking inventory; manages inventory by placing product orders; provide; [sic] and 
prepares and submits sales reports to the President. 
Description of Position: Assists customers with questions regarding merchandise; conducts 
sales transactions; accepts return of merchandise; gets approval and provide[s] customer 
reimbursements for return of merchandise; interacts with telephone customer product support, 
when necessary, to provide customer service. 
EAC 08 033 50835 
Page 6 
On May 30, 2008, the director denied the petition, finding that the petitioner failed to establish that the 
beneficiary would be employed in a qualifying capacity. Specifically, the director found that the 
beneficiary would be acting as a first-line supervisor by virtue of the small size and staff of the petitioner. 
Moreover, the director noted that at the time of filing, on November 14, 2007, the petitioner claimed to 
have only one employee (presumably the beneficiary). However, in response to the request for evidence, 
the director noted that the petitioner claimed to have three employees, not one as claimed on Form 1-129, 
yet submitted no explanation regarding the discrepancy. 
On appeal, counsel contends that the director erred as a matter of law, and contests the director's reliance 
on the small size of the petitioner as a basis for the denial. Counsel further claims that the petitioner has 
satisfied its burden by a preponderance of the evidence. No additional documentation is submitted in 
support of the appeal. 
Upon review, the AAO concurs with the director's findings. 
Despite the petitioner's contentions that the beneficiary functions in a qualifying position, the minimal 
information submitted with regard to the beneficiary's position, coupled with the contradictory claims 
with regard to staffing, suggests that the beneficiary performs most of the day-to-day duties required to 
operate the company. Thus, it appears that he could not be considered primarily a manager or executive. 
The AAO will begin by examining the stated duties of the beneficiary. 
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 definitions of executive and 
managerial capacity each 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 prove 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 petitioner provided an extremely vague description of the beneficiary's duties. 
 With the initial 
petition, the petitioner merely claimed that he would have overall control as well as supervisory control 
over the business, and indicated that he would purchase items to sell in the store as well as hire and fire 
staff. When asked for a more specific overview of the beneficiary's duties, including a breakdown of the 
percentage of time devoted to each duty on a weekly basis, the petitioner merely provided a generic, 
one-paragraph overview of the beneficiary's alleged managerial duties, and a chart which claimed that the 
beneficiary oversaw a manager and a sales employee. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to answer a critical question in 
this case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
EAC 08 033 50835 
Page 7 
In the request for evidence, the director asked the petitioner to submit a complete position description for 
the beneficiary as well as other employees of the petitioner. Moreover, the director specifically requested 
evidence to show how the beneficiary would be relieved from performing non-qualifying duties. The 
petitioner, however, failed to submit a specific overview of the beneficiary's duties with a breakdown of 
how much time he devoted to each of the claimed duties. In addition, although the petitioner provided a 
brief overview of each of the other two employees' positions, the question of when the employees were 
hired raises questions regarding the validity of the claim, since at the time of filing, the petitioner claimed 
to have only one employee, presumably the beneficiary, on staff. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. 5 103.2(b)(14). Moreover, this failure to clarify the time of hire of the beneficiary's 
subordinates renders it impossible to determine whether a subordinate staff was on hand at the time of 
filing to relieve that beneficiary from performing non-qualifying duties. 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. 1978). 
Even if the evidence definitely showed that the petitioner employed the manager and sales employee at 
the time of filing, the record as it currently stands contains insufficient evidence to demonstrate that the 
beneficiary would be relieved from performing non-qualifying duties. Pursuant to section 101(a)(44)(C) 
of the Act, 8 U.S.C. 5 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. 9 214.2(1)(14)(ii)(D). The 
regulation at 8 C.F.R. fj 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. 
In the instant matter, the initial petition was valid fiom September 27, 2006 to September 26, 2007. 
Therefore, despite filing the petition in November of 2007, the petitioner should have demonstrated that 
by September 26, 2007 it had sufficiently grown to the point where it could support the beneficiary in a 
qualifying capacity where he could refiain from performing non-qualifying duties. At the time of filing, 
however, the petitioner indicated on Form 1-129 that it employed only one person. Since the record 
contains evidence that the beneficiary received income from the petitioner in both 2006 and 2007, the 
AAO presumes that the beneficiary was this sole employee. In addition to the beneficiary's 
compensation as an officer of the company, the petitioner, on its Form 1120, indicates that it paid wages 
of $6,400 in 2007. Since the petitioner submitted no definitive documentation to show to whom such 
wages were paid and in what period they were paid, , the AAO cannot conclude that the petitioner had a 
subordinate staff of two persons in place at the time of filing to relieve him from performing 
EAC 08 033 50835 
Page 8 
non-qualifying duties. The regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(D) requires the petitioner to describe 
its staffing and to submit evidence of wages paid to employees during the first year of operations. Instead 
of describing its staffing levels and submitting evidence of wages paid to employees, the petitioner 
submitted a business plan with proposed staffing levels, claimed one employee, and indicated that the 
beneficiary would be hiring staff. Collectively, the evidence strongly suggests that no subordinate 
employees were working under the beneficiary as of November 2007. 
The description of duties on record prior to adjudication fails to specifically state the exact nature of the 
beneficiary's duties. More importantly, the petitioner fails to provide evidence of the staffing of the 
petitioner at the time of filing. Since the regulation at 8 C.F.R. ?J 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, this lack of documentation is particularly relevant and renders it impossible to 
conclude that the beneficiary was employed in a primarily managerial or executive position at the end of 
the first year of operations. 
Therefore, it is concluded that petitioner has not reached the point where it can employ the beneficiary in 
a predominantly managerial or executive position. For this reason, the petition may not be approved. 
The second issue in this matter is whether the petitioner and the foreign entity maintain a qualifying 
relationship. The regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(A) provides that a visa petition, which involved 
the opening of a new office, may be extended if accompanied by evidence that the United States and 
foreign entities are still qualifying organizations as defined at 8 C.F.R. 4 214.2(1)(l)(ii)(G). 
The petitioner claims to be a wholly-owned subsidiary of "Galleria in India," which is described as a 
partnership based in Hyderabad, India. To meet the regulatory requirements of 8 C.F.R. 4 
214.2(1)(14)(ii)(A), the petitioner must establish that the foreign entity continues to do business and that 
the foreign entity continues to own the claimed controlling interest in the U.S. company. 
In this matter, the petitioner provided no documentation pertaining to the foreign entity with the initial 
petition. The director's request for evidence of the foreign entity's viability was set forth in the request 
for evidence issued on February 1 1, 2008. In response to this request, counsel for the petitioner claims in 
its May 6, 2008 letter that it submitted, as Exhibit F, evidence of the foreign entity's business activities 
for the past year in the form of purchase contracts, purchase orders, invoices, Bills of Lading, and copies 
of U.S. customs documents. However, a review of this documentation indicates that the company 
identified as buyer andlor seller on these documents is the U.S. petitioner, not the foreign entity. In fact 
the petitioner never provided the official corporate name of the foreign entity, and merely referred to it as 
"Galleria in India" on the L Classification Supplement to Form 1-129. 
Additionally, in response to the director's request for photographs of the foreign entity, counsel asserted 
that 55 photographs were submitted in support of the previous L-1 petition (EAC 06 233 52425). 
Counsel stated that he did not retain copies of the photos and that "due to the late discovery of this fact, 
we did not inform the client in sufficient time to provide additional photographs of the foreign entity." 
The petitioner instead submitted photographs of the U.S. entity. 
EAC 08 033 50835 
Page 9 
As stated above, failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). Moreover, the non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 
Since the petitioner failed to provide documentation demonstrating that the foreign entity was still doing 
business, the petition may not be approved. 
In accordance with the lack of documentation pertaining to the foreign entity, it is also questionable 
whether a parent-subsidiary relationship exists between the foreign entity and the petitioner. 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 (BIA 
1988); 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 full 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. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate 
entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes 
of relevant annual shareholder meetings must also be examined to determine the total number of shares 
issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its 
effect on corporate 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., 19 I&N 
Dec. 362. Without full disclosure of all relevant documents, CIS is unable to determine the elements of 
ownership and control. 
In this matter, the petitioner contends on Form 1-129 that the foreign entity, referred to merely as 
"Galleria in India," is 100% owned by a partnership. Furthermore, it claims that the petitioner is owned 
in its entirety by "Galleria in India." Upon review of the petitioner's Form 1120, U.S. Corporation 
Income Tax Return for 2006 and 2007, it is noted that the petitioner indicated that the beneficiary is its 
sole owner, owning 100% of its outstanding shares. Absent documentary evidence of the qualifying 
relationship and the contradictory claims contained in the record, the AAO cannot conclude that a 
qualifying relationship exists between the parties. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). For this additional reason, the 
petition may not be approved. 
EAC 08 033 50835 
Page 10 
If the petitioner's claims on its tax returns are correct, and the beneficiary is the sole owner of the 
petitioner, it remains to be determined that the beneficiary's services are for a temporary period. The 
regulation at 8 C.F.R. tj 214.2(1)(3)(vii) states that if the beneficiary is an owner or major stockholder of 
the company, the petition must be accompanied by evidence that the beneficiary's services are to be used 
for a temporary period and that the beneficiary will be transferred to an assignment abroad upon the 
completion of the temporary services in the United States. In the absence of persuasive evidence, 
particularly lack of any evidence that the foreign entity still exists, it cannot be concluded that the 
beneficiary's services are to be used temporarily or that he will be transferred to an assignment abroad 
upon completion of his services in the United States. For this additional reason, the petition cannot be 
approved. 
Finally, the record reflects that the petitioner did not file the petition for an extension within the required 
time frame. The regulation at 8 C.F.R. tj 214.2(1)(14)(i) provides, in pertinent part, that a petition 
extension may be filed only if the validity of the original petition has not expired. In the present case, the 
beneficiary's authorized period of stay expired on September 26, 2007. However, the petition for an 
extension of the beneficiary's L-1A status was filed on November 13, 2007, almost two months following 
the expiration of the beneficiary's status. Pursuant to 8 C.F.R. tj 214.1(~)(4), an extension of stay may not 
be approved for an applicant who failed to maintain the previously accorded status or where such status 
expired before the application or petition was filed. As the extension petition was not timely filed, it is 
noted for the record that the beneficiary is ineligible for an extension of stay in the United States. 
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, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afyd. 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). 
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 1025, 1043 (E.D. Cal. 2001), 
affd. 345 F.3d 683 (9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. tj 1361. Here, that burden 
has not been met. 
ORDER: The appeal is dismissed.