dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 03 09 1 53 193 Office: VERMONT SERVICE CENTER 
Immigration and Nationality Act, 8 U;S.C. 5 1 101(a)(15)(L) 
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 Mer inquiry must be made to that 
office. 
mert P. Wiemann, Director 
Administrative Appeals Offtce 
EAC 03 091 53193 
Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Director, Vermont Service 
Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner, a sole proprietorship located in Pakistan, claims 
to be an affiliate of the U.S. entity. The U.S. entity was incorporated in the State of New York in 
2000 and is engaged in the retail sale of commercial goods. Accordingly, on January 30, 2003, 
the foreign entity petitioned Citizenship and Immigration Services (CIS) to classify the 
beneficiary as a nonimrnigrant intracompany transferee (L- 1A) pursuant to section 10 1 (a)(15)(L) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L), as an executive or 
manager for two years. The beneficiary was previously granted a one-year period of stay to open 
the new office in the United States, from June 14, 2001 to June 14, 2002. The petitioner filed an 
1-129 Petition to extend the beneficiary's status on April 30, 2002. The director denied the 
petition (EAC02178529#), and the petitioner subsequently filed the instant petition. The 
petitioner seeks to employ the beneficiary as the U.S. entity's president at a yearly salary of 
$35,000. 
On February 27, 2003, the director denied the petition. The director determined that the petitioner 
had not established that the beneficiary will be employed in a primarily managerial or executive 
capacity. 
On appeal, the petitioner's counsel submits a brief and claims that that the beneficiary "clearly 
manages the organization" and that "@]e is the sole executive / manager for the company." 
To establish L-1 eligibility under section lOl(a)(lS)(L) of the Act, the petitioner must meet certain 
criteria. Specifically, within three years preceding the beneficiary's application for admission into the 
United States, a qualifymg organization must have employed the beneficiary in a qualifymg 
managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year. 
Furthermore, 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 regulations at 8 C.F.R. 5 214.2(1)(14)(3) state 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 qualifjrlng 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. 
Fur"rher, the regulation at 8 C.F.R. 5 214.2(1)(14)(ii) requires that a visa petition under section 
101(a)(15)(L) of the Act which involved the opening of a new office may be extended by filing a 
new Form 1-129, accompanied by the following: 
EAC 03 09 1 53 193 
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(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(l3) 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 managerial or 
executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the beneficiary will be employed in a primarily 
managerial or executive capacity. Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1 101(a)(44)(A), 
provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(i.) manages the organization, or a department, subdivision, hction, 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 drrectly 
supervised, functions at a senior level within the organizational hierarchy or with 
respect to the hction 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 supmsor is not considered to be 
acting in a managerial capacity mereIy by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 10 1(a)(44)(B) of the Act, 8 U.S.C. 8 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
EAC 03 091 53193 
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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 discreti- decision-making; and 
(iv.) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
On the Form 7-129, the petitioner described the beneficiary's proposed U.S. duties as: 
"Responsible for overall direction and management of US company. He will continue to 
supervise, procure and market all aspects of the company. He will continue to have broad 
discretionary power to establish policy and delegate authority as is necessary in the course of 
business." In addition, in a January 9, 2003 letter, the beneficiary's U.S. duties were described as 
the following: 
The beneficiary is responsible for directing the administration and the expansion 
of the U.S. operation. He has hired additional employees and is responsible for 
their supervision as well as the supervision of the employees in Karachi. . . . [The 
beneficiary] managed and directed the operations of the store including, but not 
limited to, management of employees, negotiation with vendors, overseeing the 
implementation of New York lottery sales, negotiations with mall management 
and supervision of sales. In addition, [the beneficiary] located and procured 
funding, established relationships with banks and vendors, worked with 
govemmenta1 agencies, and provided management for successful operation the 
store in the Galleria Mall. The beneficiary developed the strategic plans 
for the store by researching a suitable real estate acquisition and negotiating an 
agreement for a suitable design for the store. . . . The beneficiary supervised the 
implementation of the policy plans of the organization. . . . [The beneficiary] 
reviews financial reports and sales reports to determine which supplies need to be 
reordered so as to direct stocking of the store by the employees. 
As president, [the beneficiary] will continue to be the key manager/executive of 
our U.S. operation. He will continue to have broad discretionary power to 
estabIish policy and delegate authority and duties as necessary in the course of 
business. The responsibilities continue to be executive in nature. He will continue 
to direct, manage, supervise, procure and market all aspects of the company and 
to negotiate financially the lines of credit with banks and other lending 
institutions. 
On February 5,2003, the director requested additional evidence. Specifically, the director requested 
a copy of the U.S. company's organizational chart, the U.S. entity's employees' positions and 
EAC 03 091 53 193 
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educational backgrounds. The director also requested a breakdown of the number of hours devoted to 
the employees' job duties on a weekly basis. 
In response, the petitioner submitted a copy of the U.S. entity's organizational chart listing a store 
manager and three store clerks. The petitioner described the store manger's duties and claimed that 
the store manager is currently attending the local university and that the store clerks are all high 
school graduates. The petitioner also provided a more detailed description of the beneficiary's 
proposed U.S. duties. It claimed that the beneficiary's time was spent 100 percent on the operations 
of the business and "60% of his time, or approximately 24 hours a week supervising the work of the 
store manager and the subordinate employees through the store manager as well as the overall 
operations of the business." The petitioner stated that the beneficiary is "constantly involved in 
reviewing the functions of the business to ensure that the finances are meeting the established goals 
and the policies of the organization" and that this finction comprised 30 percent of his time or 
approximately 12 hours per week. The petitioner claimed that the remaining 10 percent of the 
beneficiary's time is devoted to "public relations" and "establishing new product and merchandise 
sources.'' 
On February 27,2003, the director denied the petition. The director determined that the petitioner 
had not established that the beneficiary will be employed in a primarily managerial or executive 
capacity. The director noted that it appeared that the beneficiary would be engaged in the non- 
managerial, day-to-day operations involved in fabricating a product or providing a service. 
On appeal, the petitioner's counsel submits a brief and claims that that the beneficiary "clearly 
manages the organization" and that "[hle is the sole executive / manager for the company." 
Counsel also describes the beneficiary's duties and the store employees' duties. 
In 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). In this matter, the 
petitioner claims that the beneficiary is "he sole executive / manager for the company." 
However, the petitioner did not clari@ whether the beneficiary is claiming to be primarily 
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive 
duties under section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a 
hybrid "executivelmanager" and rely on partial sections of the two statutory definitions. A 
petitioner must establish that a beneficiary meets each of the four criteria set forth in the statutory 
defmition for executive and the statutory definition for manager if it is representing the 
beneficiary is both an executive and a manager. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary 
will be employed in a primarily managerial or executive capacity. The petitioner has provided a 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary 
will be performing on a day-to-day basis. For example, the petitioner described the beneficiary's 
duties as "directing the administration and the expansion of the U.S. operation,'' "overseeing the 
implementation of New York lottery sales," and "reviewing the functions of the business." Based 
upon the petitioner's vague description, it is unclear what managerial and executive duties the 
beneficiary wilI prirnariIy perform. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
EAC 03 09 1 53 193 
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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). 
Further, counsel claims that the beneficiary is responsible for the supervision of the employees. 
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 4 IOl(a)(44)(A)(ii) of the Act. 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 101(a)(32) of the Act, 8 U.S.C. 5 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" contempIates 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. 81 7 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 @.D. 1966). Therefore, the AAO must focus on the level of 
education required by the position, rather than the degree held by subordinate employee. In the 
instant matter, the petitioner has not, in fact, established that a bachelors degree is actually 
necessary, for example, to perform the work of the store clerks, who are among the beneficiary's 
subordinates. 
Moreover, based on the record it appears the beneficiary that he will be hnctioning at most as a 
first-line supervisor. Comsel claims that the beneficiary will supervise a store manager and three 
store clerks. However, a managerial or executive employee must have authority over day-today 
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). Counsel further claims that the beneficiary "had the authority to hire and fire 
all employees of the company as well as retaining or dismissing independent contractors." 
Although counsel states on appeal that the petitioner had contractual employees, the petitioner has 
neither presented evidence to document the existence of these employees nor identified the 
services these individuals provide. Additionally, the petitioner has not explained how the services 
of the contracted employees obviate the need for the beneficiary to primarily conduct the 
petitioner's business. Without documentary evidence to support its statements, the petitioner 
does not meet its burden of proof in these proceedings. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure 
Craft of Cal$ornia, 14 I&N Dec. 190 (Reg. Comrn. 1972)). 
Further, the term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
5 1101(a)(44)(A)(ii). The petitioner stated that the beneficiary will be "constantly involved in 
reviewing the functions of the business to ensure that the finances are meeting the established goals 
and the policies of the organization" and that 'This function comprised 30 percent of his time or 
approximately 12 hours per week." However, if a petitioner claims that the beneficiary is 
EAC 03 091 53193 
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managing an essential function, the petitioner must identify the function with specificity, 
articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential hction. In addition, the petitioner must provide 
a comprehensive and detailed description of the beneficiary's daily duties demonstrating that the 
beneficiary manages the function rather than performs the duties relating to the function. 
Although the petitioner claimed that the beneficiary will spend 30 percent of his time involved in 
reviewing the functions of the business, the petitioner did not clearly explain what function the 
beneficiary will be primarily performing rather it appears that the beneficiary will be performing 
the services or tasks of the business rather than managing a specific function. An employee who 
primarily performs the tasks necessary to produce a product or to provide senices is not 
considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 
305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientolo~ International, 
19 I&N Dec. 593, 604 (Comrn. 1988)). In this matter, the petitioner has not provided evidence 
that the beneficiary manages an essential function. 
Although the director based his decision partially on the size of the enterprise and the number of 
staff, the director did not take into consideration the reasonable needs of the enterprise. As 
required by section 101(a)(#)(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. 
A critical analysis of the nature of the petitioner's business undermines counsel's assertion that the 
subordinate employees relieve the beneficiary from performing non-qualifymg duties. The 
petitioner operates a convenience store in a shopping mall that is open for business for 76 hours 
per week. For the fourth quarter of 2002, the petitioner paid wages of $755 to its store manager, 
$242 to one store clerk, and $1,386 to another store clerk. Based on the wages paid, it is clear that 
the beneficiary's subordinates work very few hours. By necessity, the beneficiary would 
frequently need to perform the duties of the store clerks and store manager in order to keep the 
business operating. In the present matter, the petitioner has not explained how the reasonable 
needs of the petitioning enterprise justify the beneficiary's performance of non-managerial or 
non-executive duties. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter ofSo,@ci, 22 I&N Dec. 
at 165. 
Furthermore, 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 10 1 (a)(44)(A) and (El) of the Act, 8 U.S.C. § 1 10 1(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-qualifymg duties. Based on the 
record of proceeding, the beneficiary's job duties are principally composed of non-qualifjmg 
duties that preclude him from functioning in a primarily managerial or executive role. 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 
Scientoiogy International, 19 I&N Dec. 593, 604 (Comm. 1988). 
EAC 03 091 53 193 
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After carem consideration of the evidence, the AAO concludes that the beneficiary will not be 
employed in a primarily managerial or executive capacity. For this reason, the petition may not be 
approved. 
Beyond the decision of the director, the AAO finds that the beneficiary has not been employed in 
a managerial or executive capacity abroad as defined at section 101(a)(44) of the Act, 8 U.S.C. 
9 1 101(a)(44). As previously stated, to establish L-1 eligibility under section 101(a)(15)Q of the 
Act, 8 U.S.C. rj 1101(a)(15)(L), the petitioner must submit evidence that within three years 
preceding the beneficiary's application for admission into the United States, the foreign 
organization employed the beneficiary in a qualifying managerial or executive capacity, or in a 
specialized knowledge capacity, for one continuous year. Id. On review, the petitioner submitted 
a limited and vague description of the beneficiary's foreign duties. For example, the petitioner 
described the beneficiary's foreign duties as "overall organization, management and 
administration of businesses, and business development." Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. at 
165. For this additional reason, the petition may not be approved. 
Another issue in this proceeding, also not raised by the director, is whether the employment 
offered to the beneficiary is temporary. The record indicates that the beneficiary is the sole 
owner of both the U.S. and foreign entities. However, the stock certificate indicated that the 200 
shares of common stock were issued to the beneficiary rather than the foreign entity. 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. 9 214.2(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. For this additional reason, the petition may not be approved. 
A third remaining issue in this proceeding beyond the findings in the previous decision, is 
whether the petitioner has established that a qualifying relationship exists between the petitioning 
entity and a foreign entity pursuant to 8 C.F.R. $214.2(1)(1)(ii)(G). The petitioner has not 
demonstrated that the foreign entity will continue doing business during the alien's stay in the 
United States. In a January 29, 2003 letter, the petitioner stated that the foreign entity was a sole 
proprietorship. A sole proprietorship is a business in which one person operates the business in 
his or her personal capacity. Black's Law Dictionary 1398 (7th Ed. 2 999). Unlike a corporation, 
a sole proprietorship does not exist as an entity apart from the individual proprietor. See Matter of 
United Investment Group, 19 I&N Dec. 248,250 (Cornrn. 1984). 
Finally, it is noted that the petitioner indicated under penalty of pequry in Part 4 of the Fonn I- 
129 petition that the beneficiary had never been denied the requested classification. This petition 
was filed on January 30, 2003. As noted in the recitation of the procedural history of this matter, 
EAC 03 09 1 53 193 
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the beneficiary's previous L-1 petition (EAC0217852944) was denied by the director on or about 
January 9, 2003. The regulations at 8 C.F.R. 5 2 14.2(1)(2)(i) state that "[flailure to make a full 
disclosure of previous petitions filed may result in a denial of the petition." As the petitioner 
indicated on the form that the beneficiary had never been denied the requested classification, and 
the petitioner failed to fully disclose the previously filed petitions, this petition will be denied as a 
matter of discretion pursuant to 8 C.F.R. fj 214.2(1)(2)(i). 
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), afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 
9 (2d Cir. 1 989)(noting that the AAO reviews appeals on a de novo basis). 
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. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.