dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC-03-063-50234 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 lOl(a)(IS)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. Ail documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
;h 
SRC-03-063-50234 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Ofice (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its PresidentfGeneraI 
Manager as an L-IA nonimmigrant intracompany transferee pursuant to section IOl(a)(lS)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 I lOl(aXlS)(L). The petitioner is a corporation 
organized in the State of Texas that operates a convenience store. The petitioner claims that it is the 
subsidiary of located in Karachi, 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: (1) the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity; (2) the petitioner has a 
qualifying relationship with a foreign entity; (3) the beneficiary's foreign employer continues to do business; 
and (4) the petitioner has been doing business for the past year. 
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 petition 
should be approve ght of a Citizenship and Immigration Services (CIS) interoffice 
memorandum from Associate Director for Operations, dated April 23, 2004. Counsel 
further asserts that ked evidence entered into the record which supports the petitioner's 
eligibility. In support of these assertions, counsel submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(] 5)(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 temporarity 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 (1)(1)(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. 
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(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 hider 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. tj 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 (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 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. tj 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 empIoyee 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, 
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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 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 4 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 fbnction 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 a letter submitted with the initial petition on December 27, 2002, the petitioner described the beneficiary's 
job duties as follows: 
In 2001, [the beneficiary] was transferred to a newly established U.S. office of [the petitioner] 
. . . in order to manage, direct, and develop the new business enterprise. This extension is 
being requested so that he can continue to serve as President and General Manager of the 
U.S. business operation and will be totally responsible for establishing and managing the 
corporate entity within the U.S. He will continue to be responsible for managing, controlling, 
implementing, and administering the total operations. 
On July 1, 2003, the director requested additional evidence. In part, the director requested evidence of the 
petitioner's current staffing level, including the position titles and duties of all employees, and the educational 
background of any professionals. 
In a response dated September 26, 2003, in part the petitioner submitted a document that describes the 
petitioner's staffing as follows: 
Name of Emptovee Position Duties - 
[The beneficiary] PresidentlGeneral Manager Formulate policies and manage 
daily operations. 
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Sales Person Sell Merchandise in retail 
establishment. Runs the register, 
does restocking of goods and some 
inventory. 
Sell Merchandise in retail 
establishment. Runs the register, 
does restocking of goods and some 
inventory. 
On April 6, 2004, the director denied the petition. In part, 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. The director stated that "there is no evidence that the beneficiary's duties are either managerial [or] 
executive . . . ." The director noted that the beneficiary will have two sales persons as subordinates. 
On appeal, counsel asserts that the petition should be approved, particularly in light of a recent CIS interoffice 
memorandum from William R. Yates, Associate Director for Operations, dated April 23, 2004. Counsel 
states that there have been no changes in the facts underlying the present petition since the initial new office 
petition was approved. Counsel further asserts that the beneficiary now supervises five subordinate 
employees, and that such an increase in staffing shows that the petitioner "is a growing business which does 
require managerial control typical of an L-1A position." As evidence of the petitioner's growth, the petitioner 
provides its IRS Form 1120S, U.S. Income Tax Return for an S Corporation, an unsigned business lease, and 
records of banking activity that occurred after the date of filing the petition. 
Upon review, counsel's assertions are not persuasive. Counsel suggests that the April 23, 2004 CIS 
Interoffice Memorandum limits the discretion of the director to deny the petition in the absence of a material 
error in the prior grant, a substantial change in circumstances, or new information that adversely impacts the 
petitioner's eligibility. Yet, in the prior petition, the petitioner indicated that it was a new office, and the 
petition was adjudicated under the relevant regulations for new offices. See 8 C.F.R. 4 214.2(1)(3)(~). In the 
present matter, the petitioner is no longer a new office, and the regulation at 8 C.F.R. 5 214.2(1)(3)(v) does not 
apply. As the petitioner is requesting a first extension after the opening of a new office, the petitioner must 
now satisfy its burden under the regulation at 8 C.F.R. 5 214.2(1)(14)(ii) in order to establish eligibility. 
Accordingly, the fact that the petitioner is no longer a new office, and is now requesting a first extension after 
opening a new ofice, represents a changed circumstance. The director had a duty to carefully examine the 
present petition and render a full adjudication, as the petitioner has new regulatory requirements in the present 
proceeding that did not apply to the prior petition. See 8 C.F.R. 8 214.2(1)(14)(ii). In fact, the first and only 
footnote of the memorandum specifically states that it does not apply to "L- 1 'new office' extension petitions." 
Memorandum of William R. Yates, Associate Director for Operations, The Sign@cance of a Prior CIS 
Approval of a Nonimmigranf Petition in the Context of a Subsequent Determination Regarding Eligibility for 
Extension off'etifion Validity, HQOPRD 721 1 1.3 (April 23, 2004). The director's analysis was appropriate in 
light of the referenced memorandum and the petitioner's evidentiary burden. The AAO further notes that the 
SRC-03-063-50234 
Page 6 
April 23, 2004 CIS Interoffice Memorandum was directed to Service Center Directors and Regional 
Directors. The referenced memorandum is not binding on the AAO. 
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. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. 
The job descriptions 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, the statements that the 
beneficiary will "manage, direct, and develop the new business enterprise" and he "will continue to be 
responsible for managing, controlling, implementing, and administering the total operations" do not indicate 
what tasks the beneficiary will perform on a daily basis. In response to the director's request for evidence, the 
petitioner merely stated that the beneficiary will "[fJormulate policies and manage daily operations," yet this 
broad assertion fails to account for what actual tasks the beneficiary will perform. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 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 on a daily basis, such that they can be 
classified as managerial or executive in nature. 
Counsel asserts that the beneficiary now has five subordinates. However, in the initial petition and in 
response to the request for evidence, the petitioner provided that the beneficiary will manage two 
subordinates. Further, the record shows that the beneficiary has never supervised more than one subordinate. 
The petitioner's Texas Employer's Quarter1 Re ort for the fourth quarter of 2002 reflects that only one of 
the beneficiary's claimed subordinates, 
'P 
as employed by the petitioner throughout the covered 
period. As the petition was filed on Decem r 27, 2002, the beneficiary only had one subordinate as of the 
date of filing. The petitioner's Texas Employer's Quarterly Report for the fim uarter of 2003 reflects that 
the petitioner hired the beneficiary's second claimed subordinat in March of 2003, 
after the date of filing. Thus, the evidence of record shows that the petitioner hired additional employees after - - 
filing the petition. Yet, 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 MicheIin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The 
fact that the petitioner hired additional workers after filing the petitioner is.not probative of the petitioner's 
eligibility as of the date of filing. 
It is further noted that the employee that the beneficiary purportedly supervised as of the date of filing is no 
longer employed by the petitioner, according to the petitioner's Texas Employer's Quarterly Report for the 
first quarter of 2003. 
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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 section 10 l(aX44)(A)(ii) of the Act. Even if the beneficiary's subordinate 
sales person was still employed by the petitioner, the petitioner has failed to establish that the sales person is a 
supervisory, professional, or managerial employee. 
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 lOl(aX32) of the Act, 8 U.S.C. fj 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. 8 17 (Comm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter ofshin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not provided the educational qualifications of the 
beneficiary's subordinate. Thus, the petitioner has failed to show that the beneficiary's subordinate is a 
professional. Nor has the petitioner shown that the beneficiary's subordinate supervises other staff members 
or manages a clearly defined department or function. Thus, the petitioner has not shown that the sales person 
is a manager or supervisor. Accordingly, the petitioner has not shown that the beneficiary's subordinate 
employee is supervisory, professional, or managerial, as required by section I Ol(a)(44)(A)(ii) of the Act. 
The evidence of record reflects that the beneficiary would act as a first-line supervisor. Yet, a managerial or 
executive employee must have authority over day-to-day operations beyond the level normally vested in a 
first-line supervisor, unless the supervised employees are professionals. See Matter of Church Scientology 
International, 19 I&N Dec. 593,604 (Comm. 1988). 
The record is not persuasive in demonstrating that the beneficiary will be employed in a primarily managerial 
or executive capacity. The regulation at 8 C.F.R. 6 214.2(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. 5 214.2(1)(3). For this reason, the appeal will be dismissed. 
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The second issue in this proceeding is whether the petitioner has established that it has a qualifying 
relationship with a foreign entity. 
The regulation at 8 C.F.R. 8 214.2(1)(I)(ii) provides: 
(G) Qual15ing organization means a United States or foreign fm, corporation, or other legal entity 
which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (1x1 Xii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a 
parent, branch, afiliate, or subsidiary for the duration of the alien's stay in the United 
States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 10 l(aX15XL) of the Act. 
(H) Doing business means the regular, systematic, and continuous provision of goods and/or services 
by a qualifying organization and does not include the mere presence of an agent or ofice of the 
qualifying organization in the United States and abroad. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or ofice of the same organization housed in a different 
location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half 
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less 
than half of the entity, but in fact controls the entity. 
(L) Afiliute means 
(I) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. . . . 
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In the initial petition, the petitioner indicated that it is the subsidiary of the beneficiary's foreign employer, as 
the beneficiary owns 50 percent of the petitioner's stock, and 100 percent of the foreign entity as a sole 
proprietor. The petitioner provided its articles of incorporation that show that it is authorized to issue 1,000 
shares of stock. The petitioner submitted its IRS Form 2553, Election by a Small Business Corporation, that 
indicates that the beneficiary owns 500 shares of the petitioner's stock. 
In the request for evidence, the director instructed the petitioner to provide further documentation of the 
ownership and control of the foreign entity. In response, the petitioner submitted numerous documents that 
name the beneficiary as the sole proprietor of the foreign entity. 
In denying the petition, the director found that "[tlhere is no evidence of a qualifying relationship between the 
entities." 
On appeal, counsel asserts that the record contains documentation to show that the beneficiary is the sole 
proprietor of the foreign entity. Counsel further states that "sufficient evidence of the relationship was 
submitted - and approved by INS - in 2001." (Emphasis in original). Counsel or the petitioner do not 
address the ownership of the petitioner on appeal. 
Upon review, counsel's assertions are not persuasive. As noted above, the petitioner indicated that it is the 
subsidiary of the beneficiary's foreign employer, Yet, the petitioner noted that the beneficiary owns 50 
percent of its stock, and 100 percent of the foreign entity. If this claimed ownership was supported by the 
evidence of record, it would potentially show that the petitioner and the foreign entity are affiliates due to 
being "owned and controlled by the same . . . individual." 8 C.F.R. 5 214.2(1)(1)(iiXLXI). The claimed 
ownership does not establish that the petitioner is a subsidiary of the foreign entity as defined in the regulations. 
See 8 C.F.R. 5 214.2(1)(1)(ii)(K). 
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 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 Dee. 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 
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Page 10 
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. 
In the instant matter, the record contains sufficient evidence to establish that the beneficiary owns the foreign 
entity as a sole proprietor. However, the petitioner has failed to submit sufficient evidence to show the 
current ownership of its stock. See 8 C.F.R. 5 214.2(1)(14)(ii)(A). The petitioner's IRS Form 2553, by itself, 
is insufficient to show who currently owns the petitioner's shares. Though counsel asserts that evidence of the 
qualifying relationship was submitted with the prior new office petition, evidence submitted with the 
petitioner's prior petition does not serve as evidence in the present proceeding. The petitioner must meet its 
burden by entering required evidence into the current record. 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. 190 (Reg. Comm. 1972). 
Based on the foregoing, the petitioner has not submitted sufficient evidence to establish that it was owned and 
controlled by the beneficiary as of the date of filing the petition. Thus, the petitioner has not established that 
it still has a qualifying relationship with the foreign entity as required by 8 C.F.R. 4 214.2(1)(14)(ii)(A). For 
this additional reason, the appeal will be dismissed. 
In denying the petition, the director further concluded that the petitioner did not establish that the beneficiary's 
foreign employer continues to do business and that the petitioner has been doing business for the past year. 
On appeal, the petitioner submits evidence of its and the foreign entity's business activity that occurred after 
the date of filing the petition. Again, 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). However, upon review the petitioner has provided sufficient evidence to show that it and the 
foreign entity have been doing business throughout the previous year. Accordingly, the director's findings on 
these issues will be withdrawn. 
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. The petitioner has not met this burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.