dismissed L-1A Case: Retail

identi@ing data deleted to 
prevent clearly unwarranted 
invasion of persod privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rrn. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 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. 
- - 
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_- - 
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4,- 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 03 174 51 132 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. 
 The 
director denied a subsequent motion to reopen and/or reconsider and upheld the original decision. 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 chief 
executive officer as an L- 1 A nonimrnigrant intracompany transferee pursuant to section 10 1 (a)(lS)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. tj 1101(a)(15)(L). The petitioner is a corporation 
in the sale of foods, foodstuffs, and supplies. It 
ocated in Nairobi, Kenya. The beneficiary was 
~ffice in the United States, and the petitioner now 
seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. The director upheld and 
affirmed her decision on motion. 
The petitioner subsequently filed an appeal of the director's denial of the motion. The director declined to 
treat the appeal as another motion and forwarded the appeal to the AAO for review. On appeal, counsel for 
the petitioner asserts that the director erred by finding that the beneficiary did not qualify for an extension of 
the petition, and asserts that the petitioner did in fact establish that the regulatory requirements had been met 
prior to adjudication. In support of this assertion, counsel for the petitioner 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 10l(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. 4 214.2(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. 
SRC03 17451132 
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 alien performed-abroad. 
The regulation at 8 C.F.R. fj 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 andt 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 performunder the extended petition; 
(d) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of 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. fj 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, 
SRC 03 174 51132 
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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. 
 1 104(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. 
With the petition, former counsel for the petitioner submitted a letter of support dated May 29, 2003. The 
letter explained that on June 11, 2002, the petitioner had been granted L-1 status to open a new office in the 
United States. Due to difficulties obtaining a visa, the beneficiary did not arrive in the United States until 
March 9, 2003. The petitioner indicated that during the short period of time from his arrival to the filing of 
the extension request, the beneficiary had negotiated the acquisition of a convenience store, identified as Star 
Food Store, on behalf 
 lly, the record indicated that the petitioner had acquired the 
store operations from 
 The petitioner indicated that this retail convenience store 
currently emplo ed 
 overseen by the beneficiary, and that these employees 
were officers o h and had previously been operating the business themselves. An additional letter of 
support, also dated May 29, 2003, was submitted on behalf of the petitioner by the beneficiary in his capacity 
of president. Neither this letter nor the letter from counsel identified the daily duties of the beneficiary while 
in the United States. 
On June 28, 2003, the director requested additional evidence. Specifically, the director requested more 
specific information with regard to the duties of the beneficiary and the percentage of time he devoted to each 
duty, as well as a statement outlining the staffing of the organization. The director also requested a similar 
overview of the duties of all other employees andlor contractors along with their titles and rank within the 
petitioner's organization. 
In response, the petitioner's former counsel submitted a letter dated September 9, 2003. Counsel explained 
that the petitioner currently employed three persons on a full-time basis, namely: 
SRC 03 174 51132 
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In support of its claim of employment of these persons, the petitioner submitted copies of their Employment 
Eligibility Verification forms (Form 1-9). 
With regard to the beneficiary, counsel stated that the beneficiary does supervise the three full-time 
employees listed above, and further stated: 
100% of [the beneficiary's] time is spent on discretionary, managerial, executive duties on a 
day-to-day basis 
He does not work in the store. 
The store is open 7 days a week from 8:00 a.m. to 10:OO p.m. 
[The beneficiary] intends to hire one more employee to keep the staff in current. 
Currently [the beneficiary] is responsible for looking for more stores for investment and 
therefore has no time to spend on the day-to-day management or operations of [the 
petitioner's] store known as Star Food Store in Titusville, Florida. 
On October 2, 2003, the director denied the petition.' The director determined that the beneficiary had not 
acted in a primarily managerial or executive capacity during the previous year, and that the petitioner had not 
yet reached the point where it could support the beneficiary in such a capacity. 
On appeal, newly-retained counsel, "for the petitioner submits additional evidence in support of the 
beneficiary's qualifications, and further submits copies of quarterly tax returns evidencing wages paid to the 
petitioner's employees. Counsel emphasizes the delays in the beneficiary arriving in the United States and 
asserts that he did the best he could during that short period of time in status. Counsel asserts that based on 
the totality of the evidence the beneficiary has met the requirements for an extension of the petition. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 214.2(1)(3)(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. 
In this matter, the petitioner has failed to provide an acceptable description of the beneficiary's proposed 
duties. Instead, it merely provided a vague overview of the general nature of his duties. As the initial 
1 
 While the date of the decision is October 2, 2003, it is noted that the decision was not mailed until October 
20.2003. 
SRC 03 174 51132 
Page 6 
submission was insufficient to warrant approval, the director requested more information, including a more 
specific description of the beneficiary's duties. Although the petitioner responded to this request, it merely 
provided one-to-two sentences describing the general nature of the beneficiary's role in the petitioner's 
enterprise. Despite the director's specific request for the petitioner to provide a detailed discussion of the 
beneficiary's role in the United States, as well as the percentages of time he devotes to each of his duties, the 
petitioner failed to thoroughly respond to the director's request. As such, the record contains little 
information with regard to the exact nature of the beneficiary's duties. 
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. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). In response to the director's request, former 
counsel for the petitioner stated simply that the beneficiary's time is spent on discretionary, managerial and 
executive duties. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 
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 1108, affd, 905 F. 2d 41; Avyr Associates, Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). 
In this matter, despite the director's specifiq request for detailed information, the petitioner failed to adhere to 
this request. The regulation states that the petitioner shall submit additional evidence as the director, in his or 
her discretion, may deem necessary. The purpose of the request for evidence is to elicit further information 
that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. 
See 8 C.F.R. $9 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). In this matter, the petitioner's 
failure to thoroughly address the director's specific requests have rendered it impossible to conclude that the 
beneficiary is functioning in a primarily managerial or executive capacity. 
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). 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 recently hired three employees to 
work in the newly-acquired store, and that it intends to hire a fourth employee in the near future. However, 
no evidence of wages paid to the persons has been submitted. To establish that the petitioner has staffed the 
new operation in the previous year, the petitioner must submit a description of staffing, including the number 
of employees and the types of positions, as well as evidence of the wages paid to the employees. 8 C.F.R. 
$ 214.2(1)(14)(ii)(D). Any Citizenship and Immigration Services (CIS) Forms 1-9 presented by a petitioner 
must be accompanied by other evidence to show that these employees have commenced work activities. 
Forms 1-9 verify, at best, that a business has made an effort to ascertain whether particular individuals are 
authorized to work; they do not verify that those individuals have actually begun working. See Matter of Ho, 
22 I&N Dec. 206, 212 (Assoc. Comm. 1998). In the absence of such evidence as pay stubs and payroll 
records, the petitioner has not established that the petitioner employs a subordinate staff that would relieve the 
beneficiary from performing non-qualifying duties. 
SRC 03 174 51132 
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Although counsel submits copies of the petitioner's quarterly tax returns on appeal, which demonstrate that 
these employees were in fact paid wages for the quarters ending. September 2003 and thereafter, there is no 
evidence that shows that these persons received wages or salaries from the petitioner in May and/or June 
2003. 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. Id.. Furthermore, 8 C.F.R. 
 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 addition, it should be noted that even if the evidence established that these employees were in fact 
employed full-time at the time the instant petition was filed, their employment alone is insufficient to 
establish that the beneficiary was employed in a primarily managerial or executive capacity. The petitioner 
indicates that its store is open from 8:00 a.m. to 10:OO p.m. seven days a week, and that the beneficiary does 
not work in the store but merely supervises its personnel. It would appear, therefore, that the three 
recently-hired employees would be responsible for the day-to-day operational tasks necessary to keep the 
business active. 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 8 101(a)(44)(A)(ii) of the Act. 
Though requested by the director, the petitioner did not provide the duties and qualifications of the newly- 
hired employees. Any failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 103.2(b)(14). Thus, the petitioner has not established that these 
employees possess or require an advanced degree, such that they could be classified as professionals. Nor has 
the petitioner shown that either of these employees supervise subordinate staff members or manage a clearly 
defined department or function of fhe petitioner, such that they could be classified as managers or supervisors. 
Despite the fact that two employees possess managerial titles, their scope and nature of their duties has not 
been defined, making it impossible to conclude that they oversee subordinates. Thus, the petitioner has not 
shown that the beneficiary's subordinate employees are supervisory, professional, or managerial, as required 
by section 101(a)(44)(A)(ii) of the Act. 
As discussed above, this issue is moot since these employees were not on the petitioner's payroll at the time 
of filing. However, even if they had been actively employed by the petitioner when the instant position was 
filed, the record was devoid of evidence to establish that these subordinates allowed the beneficiary to 
function in a capacity that was primarily managerial or executive. In the instant matter, the petitioner has not 
reached the point that it can employ the beneficiary in a predominantly managerial or executive position as 
required by 8 C.F.R. 9 214.2(1)(3). For this reason, the petition may not be approved. 
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 and/or services in the United 
States for the entire year prior to filing the petition to extend the beneficiary's status. The petitioner submitted 
evidence that it acquired the Star Food convenience store on or about May 15, 2003. However, the petition 
SRC 03 174 51132 
Page 8 
was approved on June 11, 2002, over eleven months prior to this acquisition. The record contains no other 
evidence of the petitioner's activities during this period. Although the beneficiary did not enter the United 
States until March of 2003, the fact remains that the regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of the petition to establish the new 
office. As stated above, at the time the petitioner seeks an extension of the new office petition, the regulation 
at 8 C.F.R. 5 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing business for the 
previous year. The term "doing business" is defined in the regulations as "the 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." 8 C.F.R. 
$ 214.2(1)(l)(ii). Again, 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 case, there is no evidence that the petitioner was doing business from June 1 1, 
2002 to May 15, 2003. It is evident, therefore, that the petitioner has not reached the point that it can employ 
the beneficiary in a predominantly managerial or executive position. For this additional reason the petition 
may not be approved. 
In addition, the record reflects inconsistencies in the evidence pertaining to the physical premises designated 
2003 after his a 
physical premises until after the approval of the original new office petition. The regulation at 8 C.F.R. 5 
2 14.2(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 busihess. In the present matter, either the petitioner did not 
comply with this requirement, misrepresented that they had complied, or the director committed gross error in 
approving the petition without evidence of the petitioner's physical premises. More important, however, is the 
inconsistent evidence in the record regarding the business address stated above. 
indicate that its principal office was 
er, the evidence in the record indicates that this address 
the co oration that sold the Stars Food market to the 
petitioner in May of 2003. The corporate tax returns for 
 or the years 2001 and 2002, submitted by 
the petitioner in support of the gross sales of the Stars Food market, indicate that the company operated at this 
address during this period. Additionally, in the contract of sale dated May 15, 2003, the petitioner's address 
is listed as No explanation regarding the discrepancies in the addresses 
has been submitted. 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 of Ho, 19 
I&N Dec. 582,591-92 (BIA 1988). 
Furthermore, Florida state records indicate that the petitioner was reinstated on March 24, 2003, 
approximately two weeks after the beneficiary entered the United States. Since the regulation at 8 C.F.R. 
214.2(1)(3)(i) requires evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations, this raises the question of whether the petitioner was actually a qualifying 
SRC 03 174 51132 
Page 9 
legal entity at the time the initial petition was filed. As stated above, either the petitioner did not comply with 
these requirements, misrepresented that they had complied, or the director committed gross error in approving 
the petition without evidence of the petitioner's physical premises or evidence that it met the definition of a 
qualifying organization. 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. $ 2 14.2(1)(9)(iii). 
Finally, the petitioner indicates that the beneficiary is the majority shareholder of both companies. If this fact 
is established, it remains to be determined that the beneficiary's services are for a temporary period. The 
regulation at 8 C.F.R. $ 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, 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. 
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 1625, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 A. 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 it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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. $ 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
FURTHER ORDERED: 
 The director shall review the prior L-1 nonimmigrant petition approved on 
behalf of the beneficiary for possible revocation pursuant to 8 C.F.R. 
$2 14.2(1)(9).