dismissed L-1A Case: Retail

U.S. Department of ltlomeland Security 
20 Massachusetts Ave . N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: SRC 03 036 50321 Office: TEXAS SERVICE CENTER Date: &@ g 4 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
ON 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. 
Aobert P. Wiemann, Director 
' Administrative Appeals Office 
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Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated on 
October 25, 1994, and claims to be in the retail stores business. The petitioner claims that the U.S. entity is 
an affiliate of MIS Taj General Merchant Shop #A-25, located in Karachi, Pakistan. The petitioner claims 
four employees. The petitioner seeks to employ the beneficiary temporarily in the United States as its 
president for a period of three years, at an annual salary of $18,000.00. The director determined that the 
petitioner failed to establish that the beneficiary would be primarily employed in a managerial or executive 
capacity. 
On appeal, counsel disagrees with the director's decision and submits a brief in opposition thereto. 
To establish L-1 eligibility under section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer, or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 2 14.2(1)(l)(ii) states, in part: 
Intvacompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Fonn 1-129 shall be 
accompanied by: 
(1) 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 
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services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The issue presented in this proceeding is whether the petitioner has submitted sufficient evidence to establish 
that the beneficiary will be primarily employed by the U.S. entity in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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 101(a)(44)(B) of the Act, 8 U.S.C. 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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 
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(14 Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the 
organization. 
In a letter dated November 15, 2002, the petitioner stated that the U.S. entity was established in 1994 as a 
"retail stores business," and employed four persons. The petitioner also stated that the beneficiary owned and 
controlled the majority of shares in the U.S. entity and foreign entity. The petitioner described the 
beneficiary's duties with the U.S. entity as: 
The beneficiary will be employed as the president of the petitioner, and will be responsible 
for performing the following duties; setting and establishing the company's goals and 
objectives; reviewing locations for the establishment of additional retail outlets; and 
managing the company; reviewing and approving inventory orders prepared by subordinate 
staff; reviewing and approving marketing strategy; establishing sales and marketing goals and 
overseeing implementation of such goals; supervising and controlling work of subordinate 
managers and supervisors; hiring and firing managers and supervisors; and reviewing 
financial records prepared by professional staff. 
In the performance of his duties, the beneficiary will receive minimum supervision fiom the 
Board of Directors. [The] beneficiary will exercise wide discretion and latitude in the 
performance of his duties. 
The petitioner submitted copies of the U.S. entity's Certificate of Incorporation, Stock Purchase Agreement, 
Share Certificates, summary bank statements, IRS Form 1120S, Corporate Income Tax Return for 2001, 
Employer's Quarterly Reports for 2001, and a company financial statement for the year ending 2001. 
In a letter dated December 24, 2002, the petitioner described the beneficiary's proposed duties with the U.S. 
entity and the percentage of time to be spent performing each duty as: 
Setting and establishing the company's goals and objectives, directing and managing 
the company - 20%; 
Reviewing locations for the establishment of additional retail outlets - 15%; 
Reviewing and analyzing market conditions, and establishing sales and marketing 
goals and overseeing implementation of such goals - 15%; 
Reviewing and approving budgets - 10%; 
Reviewing and approving inventory orders prepared by subordinate staff - 10%; 
Reviewing and approving marketing strategy - 10%; 
Supervising and controlling work of subordinate managers and supervisors, and 
hiringlfiring managers and supervisors - 10%; and 
Reviewing financial records prepared by professional staff - 10%. 
The petitioner stated that it anticipated locating and adding additional retail stores in the future; and within six 
months, hire an additional eight employees. The petitioner described the managerial, assistant managerial, 
and cashier positions within the U.S. entity as: 
Manager - Preparing employee work schedule; preparing and maintaining inventory report; 
prepare inventory orders; prepare sales report; and prepare budget and expense reports; 
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maintain records of underground petroleum storage tanks in accordance with state and federal 
environmental laws; and supervise subordinate employees. 
Assistant Manager - Maintaidorder inventory; assist in preparation and maintenance of 
inventory report; reconcile all accounts and assist in prepare daily sales report; and supervise 
subordinate employees. 
Cashier - Operate cash registerlcredit card machine; and reconcile daily cash with sales 
receipts. 
The petitioner also submitted an organizational chart demonstrating the U.S. entity's proposed hierarchy to 
include: a president, manager, two assistant managers, and five cashiers. The petitioner further noted that the 
beneficiary would be responsible for supervising the manager and assistant manager of the U.S. company and; 
therefore, meets the managerial or executive criteria. The petitioner submitted as evidence copies of the U.S. 
entity's Employer's Quarterly Reports for the quarters ending March 30, 2002, June 30, 2002, and September 
30, 2002, respectively. The petitioner resubmitted copies of the U.S. entity's Corporate Income Tax Return 
for 200 1, bank statements: and financial statements. 
The director denied the petition determining that the petitioner had failed to submit sufficient evidence to 
establish that the beneficiary would be employed by the U.S. entity primarily in a managerial or executive 
capacity. The director noted that the petitioner failed to clarify what the duties and titles of each employee 
were. The director also noted that based upon the small size of the U.S. entity's staff, it would appear that 
the beneficiary would be primarily engaged in the day-to-day operations of the business, rather than primarily 
performing managerial or executive duties. 
On appeal, counsel disagrees with the director's decision, and asserts that she abused her authority in 
determining that based upon the company's staff size, the beneficiary would be primarily performing the day- 
to-day operations of the business, rather than primarily performing managerial or executive duties. Counsel 
asserts that the petitioner currently employs a manager, assistant manager, and three cashiers. Counsel also 
asserts that the beneficiary will be responsible for overseeing the management of the U.S. entity, as well as for 
reviewing additional store locations. Counsel contends that the beneficiary will not be delegating his 
responsibihty for locating additional retail locations; and therefore, will be engaged in the essential function 
of expanding the petitioner's business. In support of his position, counsel sites to National Hand Tool Corp. 
v. Pasquarell, 889F.2d1472, n.5 (5" Cir. 1989); Mars Jewelers, Inc. v. INS, 702 F.Supp.1570, 1573 (N.D. Ga. 
1988); and an unpublished AAO decision. Counsel reiterates the proposed duties and responsibilities of the 
beneficiary in the United States. The petitioner submitted as evidence a copy of the U.S. entity's Employer's 
Quarterly Report for the quarter ending December 3 I, 2002. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed by the U.S. entity primarily in a managerial or executive capacity. In evaluating whether the 
beneficiary is employed in a primarily managerial capacity, the AAO will look first to the petitioner's 
description of the beneficiary's 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. 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 in nature. A 
beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the 
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two statutory definitions. The petitioner described the beneficiary's proposed duties in part as: "managing the 
company" and "supervising and controlling the work of subordinates, managers, and supervisors." The 
petitioner also described the beneficiary's proposed duties as: "the beneficiary will exercise wide discretion 
and latitude in the performance of his duties." Further, the definitions of executive and managerial capacity 
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). In the 
instant matter, there is insufficient evidence to show that the beneficiary will perform the high-level 
responsibilities as defined, or that he will primarily perform those duties rather than spending the majority of 
his time performing day-to-day functions of the organization. 
Counsel refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. See Matter of Treasure Cra$ 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Furthermore, while 8 C.F.R. 8 103.3(c) provides that 
MO precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. 
Counsel correctly observes that a company's size alone, without talung 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 101(a)(44)(C), 8 U.S.C. 8 1101(a)(44)(C). However, it is appropriate for 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 Coup. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
As required by section 101(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. To establish 
that the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must 
specifically articulate why those needs are reasonable in light of its overall purpose and stage of development. 
At the time of filing, the petitioner was an eight-year-old retail stores business that claimed to have a gross 
annual income of $658,562.00. The firm claimed to employ four employees including a manager, assistant 
manager, and cashiers. In the present matter, the petitioner has not explained how the reasonable needs of 
the petitioning enterprise justify the beneficiary's employment in a position described by counsel as "solely 
executive or managerial." 
The reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily" 
employed in a managerial or executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) 
of the Act, 8 U.S.C. 3 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who 
allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent, but those needs 
will not excuse a beneficiary who spends the majority of his or her time on non-qualifying duties. The 
petitioner must still establish that the beneficiary is to be employed in the United States in a primarily 
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managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, 
the petitioner has not established this essential element of eligibility. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will be doing on a day-to-day basis. For example, the petitioner 
states that the beneficiary's duties include establishing goals and policies, and directing and managing the 
company. The petitioner did not, however, define the beneficiary's goals, policies, or clarify how the 
beneficiary will actually be managing the company. In addition, the evidence shows that over 50 percent of 
the beneficiary's duties are to consist of sales, marketing, budget and inventory analysis and review. 
Rather than providing a specific description of the beneficiary's duties, the petitioner generally paraphrased 
the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 
8 U.S.C. 5 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as directing the entire 
operation of the organi and policies of the organization, and exercising sole 
discretionary decision m ory assertions regarding the beneficiary's employment 
capacity are not sufficient to burden of proof. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. 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. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Although the petitioner asserts that the beneficiary will be managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. The petitioner stated that the beneficiary would be spending "10 percent 
of his time supervising and controlling the work of subordinate managers and supervisors." This percentage 
does not represent that the beneficiary will be spending the majority of his time in a managerial position, 
managing subordinates. In addition, there is no evidence in the record to clarify that the subordinate's 
positions are supervisory, professional, or managerial in nature other than in position title. A first-line 
supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her 
supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
Because the beneficiary will be primarily supervising a staff of non-professional employees, the beneficiary 
cannot be deemed to be primarily acting in a managerial capacity. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. The petitioner indicates that it plans to hire 
additional managers and employees in the future. However, 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). Furthermore, 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 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, although the U.S. entity was established in 1994, it does not appear that the petitioner has 
reached the point that it can employ the beneficiary in a primarily managerial or executive position. 
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While not directly addressed by the director, the record contains insufficient evidence to establish that the 
foreign entity employed the beneficiary in a primarily managerial or executive capacity. Although the 
petitioner refers to the beneficiary's overseas position as "General Manager," the petitioner's description of the 
beneficiary's duties including: "overseeing development of marketing campaigns; conferring with managers; 
reviewing market conditions; supervising subordinate employees who prepare marketing strategy; reviewing 
and analyzing data relating to market conditions . . ." alone is insufficient to establish who or what he 
manages. Another issue, not directly addressed by the director in this proceeding, is whether the evidence 
submitted is persuasive in demonstrating that a qualifying relationship exists between the petitioner and a 
foreign entity as required by 8 C.F.R. $ 214.2(1)(l)(ii)(G). In the U.S. entity's Articles of Incorporation dated 
October 25, 1994, it is stated "The aggregate number of shares which the corporation shall have authority to 
issue is: 10,000 shares with no par value." Article eight of the Articles of Incorporation states that Iqbal 
Manji owns "100%" of the stock in the company. An Agreement for the Sale of Corporate Stock reads in 
part: "This agreement is executed on this October 25, 2002 between . who is also a fifty 
percent (50%) shareholder of [the U.S. entity], and [the beneficiary]." The agreement also states "Seller 
conveys, transfers, sells and assigns to Buyer TWO HUNDRED AND FIFTY (250) (emphasis added) shares, 
representing in total Twenty Five Percent (25%) shares of the corporation." The petitioner submitted copies 
of the U.S. entity's stock certificates issued as: 
Stock Certificate # Name of Owner # of Shares Issued Date Issued 
The petitioner stated that the majority of the U.S. entity was owned and controlled by the beneficiary and that 
the foreign entity is likewise, majority owned and controlled by the beneficiary. The inconsistencies between 
the petitioner's assertions and the submitted evidence raise serious doubts regarding the claim that an affiliate 
relationship exists between the U.S. entity and a foreign entity. 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 tmth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). It cannot be concluded that the petitioner 
is a qualifying organization doing business in the United States and at least one foreign country, or that it 
maintains a qualifying relationship with a foreign entity. See 8 C.F.R. $ 214.2(l)(l)(ii)(G). For these 
additional reasons, the petition may not be approved. 
Beyond the decision of the director, another issue in this proceeding is whether the employment offered to the 
beneficiary is temporary. Generally, the petitioner for an L-1 nonimmigrant classification need submit only a 
simple statement of facts and a listing of dates to demonstrate the intent to employ the beneficiary in the 
United States temporarily. However, where the beneficiary is claimed to be the owner or a major stockholder 
of the petitioning company, a greater degree of proof is required. Matter of Isovic, 18 I&N Dec. 361 
(Comm. 1982); see also 8 C.F.R. 214.2(1)(3)(vii). The petitioner indicated that the beneficiary is the 
majority owner of the petitioning organization, and that it appears that there is no existing qualifying 
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relationship between the U.S. entity and a foreign entity to employ the beneficiary upon his return abroad. 
Therefore, the beneficiary's stay in the U.S. does not appear to be temporary. For this additional reason, the 
petition may not be approved. 
In visa petition proceedings, the burden sf proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.