dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
* . , .-- - 9 wez I > P- 
. . U. S. Citizenship 
and Immigration 
04 PVJbOkr ,r gwa I . , ,$ 
FILE: SRC-03-172-50500 Office: TEXAS SERVICE CENTER Date: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 101(a)(15)(L) 
ON 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. 
/ 
P. Wiemann, Director 
' Administrative Appeals Office 
SRC-03-172-50500 
Page 2 
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 appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its Managing Director 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. § 1101(a)(15)(L). The petitioner is a limited liability company organized 
in the State of Georgia that operates as a retailer of international handicrafts and related goods. The petitioner 
claims that it is a branch of Yapsas Yer Karolari Yapi Sanayi Ve Ticaret A.S., located in Izmir, Turkey. 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: (I) the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity; and (2) the petitioner has 
been actively doing business continuously for one 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, the petitioner asserts that the beneficiary is currently 
employed in a primarily executive position, and that the company has been doing business since her entry in 
September 2002. In support of these assertions, the petitioner submits a one-page statement. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(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 hirnlher 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. 
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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 
(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 IOl(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: 
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(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 described the beneficiary's job duties as follows: 
As Managing Director at the [petitioner], [the beneficiary] is responsible for the execution of 
[the] company's business strategy utilizing her background in management to locate new 
avenues for [the petitioner] in the world market. [The beneficiary's] primary function for the 
[petitioner] is to plan, direct, and control the management of the company, establish goals and 
policies, and exercise wide latitude in discretionary decision-making. She plans business 
objectives and develops organizational policies to coordinate functions and operations 
between division [sic] and departments, and establishes responsibilities and procedures to 
attain objectives. 
She is also responsible to recruit, train and supervise the U.S. staff, to establish adequate 
client base to ensure future financial success for the office, and to review activity reports and 
financial statements to determine progress and status in attaining objectives. [The 
beneficiary] will receive only general supervision from the company's board of directors. 
The major functions of the company are the sourcing of clients, merchandising and 
promoting its products. 
The objectives and policies set by [the beneficiary] will be executed by the 2 employees of 
[the petitioner], as well as independent contractors. [The beneficiary] will not perform day- 
to-day functions of [the petitioner]. 
On July 11, 2003, the director requested additional evidence. In part, the director requested: (1) copies of the 
petitioner's Employer's State Quarterly Tax Returns with all attachments for 2002 and March 2003; (2) a 
current copy of the petitioner's organizational chart; (3) a definitive statement describing the beneficiary's 
employment capacity in the United States, including the number of employers who report directly to her and 
their duties, titles, and educational backgrounds; and (4) if the beneficiary does not supervise subordinates, an 
indication of the essential function she manages. 
In a response submitted on October 3, 2003, the petitioner provided: (1) a statement describing the 
beneficiary's duties that provides almost exactly the information submitted with the initial petition; and (2) 
previously submitted evidence. 
On October 21, 2003, 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 
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capacity. Specifically, the director stated that "[tlhe petitioner has not established that the beneficiary will not 
engage in the day to day operations of the business. The beneficiary will have to engage in day to day 
business given the current structure of the company and given the current employees . . . ." 
On appeal, the petitioner asserts that the beneficiary is currently employed in a primarily executive position. 
In an attached statement, the petitioner states that: 
[The beneficiary] has established this company and is no longer involved in day-to-day 
operations however she is responsible and needed for planning business objectives and the 
opening of new avenues for the future success of [the petitioner]. She will perform & 
executive decisions pertaining to the [petitioner], such as decision making and the hiring and 
training of employees as needed in the company, as well as her knowledge in global 
marketing of products to be executed to managers for future training of new employees. 
(Emphasis in original). The petitioner provided no new evidence to support these assertions. 
Upon review, the petitioner'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. 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. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. 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 case, the petitioner asserts that the beneficiary is primarily engaged in both managerial duties 
and executive duties. Therefore, the petitioner must establish that the beneficiary meets each of the four 
criteria set forth in the statutory definition for executive duties under section lOl(a)(44)(B) of the Act, and the 
statutory definition for managerial duties under section lOl(a)(44)(A) of the Act. 
The beneficiary's job description submitted by the petitioner was vague, providing little insight into the true 
nature of the tasks the beneficiary will perform in the United States. For example, the petitioner provides that 
the beneficiary will "plan, direct, and control the management of the company, establish goals and policies, 
and exercise wide latitude in discretionary decision-making." Rather than state specific tasks that the 
beneficiary will perform, this statement merely quotes the statutory definition of executive capacity provided 
in section lOl(a)(44)(B) of the Act. The petitioner states that the beneficiary "plans business objectives and 
develops organizational policies to coordinate functions and operations between division [sic] and 
departments." However, the petitioner has failed to identify its different departments, or to explain what 
associated tasks are required in order to coordinate between them. The petitioner provides that the 
beneficiary "will receive only general supervision from the company's board of directors," which is a 
paraphrase of section lOl(a)(44)(B)(iv) of the Act. 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the 
employment. Id. The provided job description does 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. 
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The petitioner suggests that the beneficiary will manage subordinate staff members. Specifically, the 
petitioner states that "[tlhe objectives and policies set by [the beneficiary] will be executed by the 2 
employees of [the petitioner], as well as independent contractors." The petitioner also states that the 
beneficiary is "responsible to recruit, train and supervise the U.S. staff." The petitioner has provided no 
evidence that it utilizes the services of independent contractors. 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. Cornm. 1972). Further, the evidence in the 
record does not support that the petitioner employs individuals in addition to the beneficiary and the 
beneficiary's equal partner. For example, the petitioner's 2002 Form 1065, U.S. Return for Partnership 
Income, reflects that no salaries or wages were paid during that year. Thus, it is evident that the two 
employees to which the petitioner refers are in fact the beneficiary and the beneficiary's equal partner, and all 
tasks associated with the petitioner's operations must be performed by the beneficiary and the beneficiary's 
partner. In is also noted that, as the beneficiary and her partner are equal partners and both hold managerial 
titles, the record does not show that the beneficiary has supervisory authority over her partner. Accordingly, 
the petitioner has not established that the beneficiary manages subordinate employees. See section 
10 l(a)(44)(A)(ii) of the Act. 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. See section lOl(a)(44)(C), 
8 U.S.C. 8 1101(a)(44)(C). However, it is appropriate for Citizenship and Immigration Services (CIS) to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics COT. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As required by section 
lOl(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is acting 
in a managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. 
The petitioner operates as a retailer of international handicrafts and related goods. Thus, it is evident that the 
reasonable needs of the petitioner require its employees to perform numerous non-managerial and non- 
executive tasks such as placing orders for goods, answering questions about merchandise from customers, 
tracking the petitioner's inventory, managing a checking account and paying bills, answering telephones, 
receiving deliveries, conducting sales transactions using a cash register, and providing custodial services. As 
stated above, the beneficiary is one of only two employees of the petitioner, both of which have managerial 
titles. The petitioner has failed to explain how its reasonable needs will be met by two employees acting in a 
managerial or executive capacity. Thus, the reasonable needs of the petitioner suggest that the beneficiary 
must spend a significant amount of time performing the tasks necessary to provide the petitioner's services. 
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 
Znternational, 19 I&N Dec. 593, 604 (Cornm. 1988). The petitioner has failed to establish that these non- 
managerial and non-executive tasks do not constitute the majority of the beneficiary's time. See 8 C.F.R. 
8 2 14.2(1)(3)(ii). 
The record is not persuasive in demonstrating that the beneficiary will be employed in a primarily managerial 
or executive capacity. The petitioner indicates that it requires more time to develop its operations. However, 
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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. Cornrn. 1978). Furthermore, 8 C.F.R. 
3 214.2(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 or 
managerial capacity, as required by 8 C.F.R. § 214.2(1)(3). For this reason, the appeal will be dismissed. 
The second issue in this proceeding is whether the petitioner has shown that it has been doing business for the 
previous year as required by 8 C.F.R. 5 214.2(1)(14)(ii)(B). 
The regulation at 8 C.F.R. 5 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods andlor services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
In the petition, the petitioner submitted evidence of its business activity including: (1) a letter from 
Dollywood, dated May 5, 2003, thanking it for participating in a Festival of Nations event; (2) spreadsheets 
showing sales activity in March and April of 2003, with gross sales totaling approximately $3,000 for that 
period; (3) a lease dated March 11, 2003; (4) an invoice, dated October 16, 2002, showing items sold by the 
petitioner totaling $332.50; (5) two undated bills of lading showing goods delivered to the petitioner; (6) an 
invoice for a lease payment dated August 23, 2002; (7) three invoices reflecting goods purchased by the 
petitioner, two dated July 28, 2002, and one dated August 16, 2002; (8) a certificate of liability insurance, 
dated March 24, 2003; and (9) a copy of the petitioner's 2002 Form 1065, U.S. Return for Partnership Income. 
In the July 11, 2003 request for evidence, the director requested evidence that the petitioner has been doing 
business for one year, such as bank statements, payroll records, invoices, sales records, bills of sale, shipping 
receipts, and orders of goods and services. 
In response, the petitioner submitted documents related to its business activity that occurred after June 4, 
2003. the date of filing the initial petition. 
In denying the petition, the director found that the petitioner failed to establish that it has been actively doing 
business continuously for one year. 
In the statement submitted with the appeal, the petitioner asserts that it has been doing business since the 
beneficiary's entry into the United States on September 11, 2002. The petitioner states that it "has had only 10 
months and not 12 months" in which to conduct business, due to the beneficiary's entry in September 2002 
instead of July 2002. The petitioner indicates that "[it] has in fact been actively doing business for the entire 
time that [the beneficiary] has been [in the United States], relocating twice during said time due to growth in 
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products imported, office space, warehousing, showroom needs[,] etc." The petitioner provided no new 
evidence of its business activities. 
Upon review, the petitioner's assertions are not persuasive. At the time the petitioner seeks an extension of 
the new office petition, the regulation at 8 C.F.R. C, 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate 
that it has been doing business for the previous year. On appeal, the petitioner submits numerous documents 
pertaining to its business activity that occurred after June 4, 2003, the date of filing the petition. As stated 
above, the petitioner must establish eligibility at the time of filing the nonirnrnigrant 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. at 248. Thus, evidence of the petitioner's business 
activity that occurred after June 4,2003 is not probative of the petitioner's eligibility as of the filing date. 
The petitioner's 2002 Form 1065, U.S. Return for Partnership Income, reflects that it generated $333 in gross 
receipts during that year. As this document addresses activity that occurred during the first six months of the 
one-year period in question, it reflects that the petitioner was not engaged in "the regular, systematic, and 
continuous provision of goods andlor services" during that time. See 8 C.F.R. $ 214.2(l)(ii)(H). The 
petitioner provided three invoices that show that it purchased goods in July and August 2002. While these 
documents reflect that the petitioner began preparation to commence business during that period, the record 
contains no evidence to show that it actually sold goods on a regular basis until March 2003, three months 
before the petition was filed. The fact that the beneficiary entered the United States approximately two 
months after she was approved for L-IA status does not relieve the petitioner's burden to show that it has 
been doing business for the previous year. See 8 C.F.R. 5 214.2(1)(14)(ii)(B). 
Based on the foregoing, the petitioner has failed to establish that it has been doing business for the previous 
year as required by 8 C.F.R. 5 214.2(1)(14)(ii)(B). For this additional reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying corporate 
relationship with the beneficiary's foreign employer as required by 8 C.F.R. 5 214.2(1)(l)(ii)(G). On the 
initial petition, the petitioner indicated that it is the branch of the beneficiary's foreign employer. The 
petitioner submitted its 2002 Form 1065, U.S. Return for Partnership Income, which shows that the 
beneficiary and one other individual are equal partners in the organization, each owning a 50 percent share. 
The petitioner provided no documentation to reflect that it is a branch of the foreign entity, or that the foreign 
entity has an ownership interest in it. The petitioner submitted a document titled "Annual Meeting of Board 
of Directors" dated October 26, 2001, reflecting that the foreign entity is owned by nine individuals in varying 
proportions. The beneficiary is listed as a shareholder, owning 10 percent of the foreign entity's outstanding 
shares. The petitioner's second partner is not listed as a shareholder of the foreign entity. Accordingly, the 
petitioner and the foreign entity are not affiliates due to common ownership and control, and the record is 
insufficient to show a qualifying corporate relationship. 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, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), nfcl. 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). 
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CIS approved a prior petition that the petitioner filed on behalf of the beneficiary. The director's decision in 
the present matter does not indicate whether she reviewed the prior approval of the previous nonimmigrant 
petition. If the previous nonimrnigrant petition was approved based on the same documentation and alleged 
corporate relationship contained in the current record, the approval would constitute material and gross error 
on the part of the director. The AAO is not required to approve applications or petitions where eligibility has 
not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that 
CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 
825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
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. 
ORDER: The appeal is dismissed.