dismissed L-1A Case: Retail And Beauty Services

U.S. Department of Homeland Security 
20 Mass. Ave.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 02 LO5 50228 Office: CALIFORNIA SERVICE CENTER Date: 
PETITION: Petitioll for a Nonimmigrant Worker Pursuant to Section 101(aj(15)(IJ) of the Immigration 
and Naiionality Act, 8 U.S.C. tj 1 10 1 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice in your case. All dccuments have been returned to 
the office that originally decided your case. Any further inquiry must he made to that office. 
Robert P. Wiernann, ~irecidr 
Administrative Appeals Office 
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Page 2 
DISCUSSION: The Director, California 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 is engaged in the business of importing and exporting general handicraft and gift items and in 
operating a beauty salon. It seeks to extend its authorization to employ the beneficiary temporarily in the United 
States as its manager. The director determined that the beneficiary has not been and will not be employed 
primarily in a qualifying executive or managerial capacity. 
On appeal, counsel asserts that the director did not review evidence that was submitted in response to the request 
for evidence. Counsel asserts that the beneficiary is employed in a managerial and executive capacity. 
To establish L-1 eligibility under sectior, 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 8 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 a.t 8 C.F.R. 9 214.2(1)(3) states rhat an individual petition filed on Form 1-12!? 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 (I)(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. 
The United States petitioner was irrcorporated in March 1999 and states that it is a subsidiary of 'Aceel 
Enterprises located in New Delhi, India. On the Form 1-129, the petitioner stated that it has ten employees 
and stated a gross income of $400,000. The initial petition was approved and was valid from June 27. 2001 
until June 27, 2002. The petitioner seek< to extend thi: petition's validity and the beneficiary's stay for three 
years at an annual salary of $42,000. 
The issue in this proceeding is whether [he beneficiary has been and will be prirnarily perfu~ming, managerial or 
executive duties. 
Section 1 Ol(a)(44)!A) ofthe Act, S 1J.S.C. 5 1 IOl(a)(44)(A), provides: 
The term "managerial cal;acityl' meals an assignment within an organization in which the 
employee primarily- 
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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 persolinel actions (such as promotion 
and leave authorization), cr 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 professionai. 
Section 1 0 1 (a)(44)(B) of the Act, 8 U .S.C. # ! I 0 1 (a)(44)(B), provides: 
The term "executive capaciv" means an assignment within an organization in whic,h the 
employee primarily- 
i. directs the management of the olgai~ization '31. a major component or fimction of tne 
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. 
When examining the executive or managerial capacity of the beoeficiary, Citizenship B Immigration Sei-vices 
(CIS) looks first to the petitioner's description of the job ades. See 8 C.F.R. 214.2 (I) (3) (ii). In this instalice. 
in a letter attached to the petition, dated June 6, 2002. the petitioner stated that the beneficiary is a manager in the 
company. The petitioner explained that it is expanding into the area of "Indian Henna and Facial Threzding" 
services. In the instant petition, the petitioner stzted that the berleficiary will: 
[dlirect and coordinate activities of the new entity and import of the products. Will formulate 
and administer organization policies; participate in formulating and administering company 
policies and developing long-range goals ar,d objectives. Direct and coordinate activitie~ of the 
department for which responsjbility is delegated ro further attainment of goals and objectives. 
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Will hire the appropriate management and staff to handle the company, train, coordinate 
advertising and promotions for the new business, sales zctivities of establishment. Direct 
staffing, training and performance evaluation to develop and control sales program. Develop the 
existing business plan, direct and coordinate the activities of the U.S. Imports and Exports 
On July 1 1,2002, the director requested the following additional evidence: 
U.S. Business Organizational Chart: Submit a copy of the U.S. company's line and block 
organizational chart describing its managerial hierarchy and staffing levels. The chart should 
include the current names of all executives, managers, supervisors, and number of employees 
within each department or subdivision. Clearly identify the beneficiary's position in the chart 
and list all employees under the beneficiary's supervision by name and job title. Also include a 
brief description of job duties, educational level, annual salariesiwages (in U.S. Dollar 
equivalents) and immigration status . . . . for all employees under the beneficiary's supervision. 
Finally, explain the source of remuneration for all employees and explain if the employees are on 
salary, wage or paid commission. 
e Duties in the U.S. : Submit a more detailed description of the beneficiary's duties in the U.S. 
Be specific. List all the education and employment qualifications for the position in the U.S. 
Company. Include evidence that the beneficiary meets the petitioner's qualification, and, if 
required, that the beneficiary has the ability to speak, read, and write English. Indicate exactly 
who the beneficiary directs including their job title and position description. List all employees 
under the beneficiary's direction. Also indicate percentage of time spent in each of the listed 
duties. 
On September 26, 2002, the petitioner responded to the director's request for evidence. The petitioner provided 
an organizational chart of the U.S. comvanv and the overseas comDanv. The vetitioner's organizational chart . . 1 d 
indicated-as presiden(beneficiary) as manager and- 
functional manager. The chart indicated that the beneficiary oversees a henna artist and a licensed cosmetologist. 
'fie chart is unclear if the beneficiary oversees the function manager. Additionally, the chart indicated a sales 
manager and a part-time bookkeeper. The' organizational chart for the foreign company, indicated the same - 
personnsas president, (beneficiary) as executive managerivice-president 
and Vibhor Vineet as a sales manager as well as another manager, an office assistmt and two sales execrt' ~ves. - - 
The AAO notes that the petitioner indicted on the organizational chai-ts tha-orks as a "functional 
manager" for the .US. and as a sales manager/director for the foreign company yet provided no additional 
information about this employee, such as a job description and proof of employment. 
Additi~nally, the petitioner submitted a newsprint article describing the owner and the type of business. 'The 
article described the petitioner as a wholesale business in music CDs and cassettes. The article stated that the 
president of the petitioning organization and his wife, the benef ciay, have opened a beauty salon. In an dttached 
letter, counsel for the petitioner restated the previously provided beneficiary's job description and added that the 
beneficiary ic "Ti]nvolved also in new investments along with the President of the Company and supervision as 
indicated above [ofl other professions and to hire other management staff members." In response to the 
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director's specific request for the percentage of time spent in each of the beneficiary's listed duties, counsel stated 
the beneficiary will spend " . . . . 70 % of her time exercising her discretionary authority in managing professional 
staff members and client relations . . . . [and] . . . . 30% of her time developing and conducting information on the 
trends of the Product in the U.S. market." 
On November 15, 2002, the director issued a decision denying the petition. The director found that the job 
description provided by the petitioner is insufficient to establish that the beneficiary has been and will be 
employed as a manager. The director stated the information provided by the petitioner describes the beneficiary's 
duties only in broad general terms. Additionally, the director found that the Internal Revenue Service (IRS), 
Form 1 120, U.S. Corporation Income Tax Return for the year 2001 indicated the salaries and wages of employees 
as $14,000.00. The director further noted that this information does not relate to the information provided by the 
petitioner on the U.S. organizational chart. The director noted that the salaries of the employees indicated on the 
organizationai chart exceed the total salaries and wages indicated on the U.S. Corporation Income Tax Return. 
The director determined the petitioner had not explained these inconsistencies in the record. 
In conclusion, the director determined the evidence submitted with the petition was insufficient to demonstrate 
that the beneficiary will function in a managerial or executive capacity. The director found there is no indication 
that the beneficiary will exercise significant authority over generalized policy or that the beneficiary's duties will 
be primarily managerial or executive in nature. 
On appeal, counsel states that the additional evidence and information that wer-e provided in response to the 
director's request were not taken into consideration. Additionally, counsel for the petitioner asserts that the 
beneficiary will be employed in both a managerial and executive capacity. Therefore. petitioner must establish 
that the benef ciary meets each of the four criteria set forth in the statutoiy defii~ition for executive and the 
statutory definition for manager since it is representing that the beneficiary is both an executive and a 
manager. 
On appeal, counsel asserts that the director misread the Form 1120 Corporate Tax Return when he indicated 
his concerns over the discrepancies between the organizational chart an8 the sa!arieq listed. Counsel explains 
that the salaries and benefits for 2001 total $50,100 taking into account both the line items far salary and 
wages and compensation for officers. Counsel also explains that there have Seen new hire% that would not be 
reflected In the 2001 tax return. The AAO acknowledges that the petitioner compensated its officer but the 
payroll information provided in the record only indicates three employees ~ncluding the president, the 
beneficiary, md a sales manager. The petitioner did not provide any additisual evidence that the petitioner 
has hired additional employees. It is incumbent upon the petitioner to resolve any lncorlsistencies 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. Mattersoj 
Ho, 19 l&N Dec. 582,591-92 (BIA 1988). 
Or1 appeal. counsel states that the beneficiary is enlployed in both a managerial and executive capacity. 
Co~~nsel generally states that the beneficiary takes charge of the company when :he president is absent. 
Coi~nsel states that the beneficiary directs the management of the U.S. Zompany and "not only tried to 
accomplish the otganization's mission and objectives set by the Board and the Presiaect but also helps the 
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employees to accomplish their own career objectives." Counsel added that the beneficiary "is involved in 
developing the business mission, objectives, goals and policies . . . . in association with the [plresident . . . . 
has directed the company's operations and development strategy, coordinating with the management of the 
large parent company." In reviewing the record, the petitioner has not sufficiently described the 
responsibilities of the beneficiary in order for the AAO determine whether the beneficiary's position is 
executive. The petitioner has not provided any specifics as to the nature of the beneficiary's job duties. 
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., itd. v. Sava, 724 F. Supp. I 1 03 (E.D.N.Y. 19891, ufd, 905 F.2d 4 1 (2d. Cir. 
1990). 
The description of the duties employed words such as "developing the business mission, objectives, goals and 
policies" and "setting out of [the petitioner's] overall growth strategy". These words and phrases are 
generalities. For example, they do not identi@ what "objectives, goals and policies" and "growth strategies" the 
beneficiary will develop and establish. In sum, the petitioner described the beneficiary's duties in general terms, 
largely paraphrasing the statutory and regulatory executive and managerial requirements. Going on record 
without supporting docu~xentary evidence is insufficient to meet the burden of proof in these proceedings. Ikea 
US, Inc. v. INS, 48 F.Supp. 2d 22, 24-5 (D.D.C. 1999); see generally Republic of Transkei v. INS, 923 F.2d 
175 (D.C. Cir. 1991) (discussing burden the petitioner must meet to demonstrate that the beneficiary qualities 
as prirnariiy managerial or executive); Mutter of Treasure Craft gf Cullforniu, 14 I&N Dec. 190 (Reg. Comm. 
1972). 
Counsel's assertions are not persuasive. The petitioner has not submitted a sufficiently detaiied description of 
the beneficiary's current and proposed job duties and day-to-day activities to establish whether the position is 
executive. The petiticner has submitted general statements which vaguely describe the beneficiary as 
performing executive duties. Half of the duties described state that the beneficiary manages a professional 
staff when there is no evidence that the petitioner employs a professional staff. Furthermore, the petitioner 
has not demonstrated that the beneficiary directs the management of the organizatim or s major component or 
filnction of the organization. 
As indicated abcve, the petitioner stated the beneficiary spends 7@ percent of her time managing professional 
staff members. The evidence provided by the petitioner does nor denionstrate that the Seneticiary manages 
professional staff members. The organizational chart and statements from the petitioner and counsel indicate 
that the beneficiary supenises a sales manager, a henna artist and a cosmetologist. Furthermore, counsel 
asserts that the beneficizry supervises a part time bookkeeper. However, none of these positions are 
professional. In evaluating whether :he 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. $ 1101(a)(32), states that "[tlhe term profession shall 
include but not be limited to architects, engineers, la~yers, physicians, surgeons. and teacliers in elementary 
or secondary schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or 
learning, not merely skill, of an advanced type in a given field gained by a prolonged course of specialized 
instruction and study  fat least baccalaureate level, which is a realistic prerequisite to entry into the particular 
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field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 
1968); Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Counsel continuously asserts that the beneficiary will manage professionals. Based on the information 
provided in the organizational chart and on appeal, the subordinate employees who will report to the 
beneficiary do not qualify as professionals as defined by the regulations and as described in pertinent case 
law. Therefore, the beneficiary will not supervise and control the work of other supervisory, professional or 
managerial employees pursuant to Section 10 1 (a)(44)(A)((2)) of the Act. 
Based on the record of proceeding, the petitioner provided insufficient evidence to determine whether the 
petitioner has established that the beneficiary will be employed primarily in a managerial or executive capacity. 
The petitioner has provided no comprehensive description of the beneficiary's duties that would demonstrate that 
the beneficiary has been or will be managing the organization, or managing a department, subdivision, function, 
or component of the company. The petitioner has not shown that the beneficiary has been or will be functioning 
at a senior level within an organizational hierarchy. Further, the petitioner's evidence is not persuasive in 
establishing that the beneficiary has been or will be managing a subordinate staff of professional, managerial, or 
supervisory personnel who relieve her from performing non-qualifying duties. The provided descriptions of the 
beneficiary's primary duties indicate that the beneficiary is not primarily acting in a qualifying managerial or 
executive capacity. For this reason, the petition nay not be approved. 
Beyond the decision of the director, the petitioner stated that the record contains evidence that the foreign 
entity and the U.S company employ the same three people as president, manager and functional/sales 
manager. The AAO notes that though the petitioner provided some profit and loss statements for the foreign 
company, the petitioner has not provided any evidence that the foreign company is doing business as required 
at 8 C.F.R. 5 214.2(1)(l)(ii)(G)(2). As defined in the regulation at 8 C.F.R. $ 214.2 (l)(l)(Ii)(X), "doing 
business" means the regular, systematic provision of goods and/or services by a qualifying organization. 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. 20011, affd. 315 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). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 1 36 1. Here, that burden has not been met. 
-ORDER: The appeal is dismissed.