dismissed L-1A Case: Retail Clothing

U.S. Department of Homeland Security 
U S. Citizenship and Immigration Services 
Ofice ofAdminrstratlve Appeals, MS 2090 
Washington, DC 20529-2090 
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File: EAC 08 087 52531 Office: VERMONT SERVICE CENTER Date: MAY 2 7 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 
 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
& F. Grissom 
Acting Chief, Administrative Appeals Office 
EAC 08 087 5253 1 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. 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 employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 10l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a Virginia corporation, operates a retail clothing store. It states that 
it is a subsidiary of Unicore Company Ltd., located in Seoul, Korea. The petitioner seeks to employ the 
beneficiary as the presidentlgeneral manager of its new office in the United States for a three-year period. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary 
will be employed in the United States in a primarily executive capacity. Counsel asserts that the director 
failed to take into account the stage of development of the U.S. organization, and emphasizes that the 
petitioner is a new office which has a reasonable need for an executive officer. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifiing organization within the three years preceding the filing of 
the petition. 
1 
 Pursuant to the regulation at 8 C.F.R. 5 2 14.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
EAC 08 087 52531 
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 himlher 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. tj 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed by the petitioner in a primarily managerial or executive capacity within one year. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 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; 
EAC 08 087 5253 1 
Page 4 
(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. 5 1101(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. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on January 22, 2008. In a letter dated 
December 29, 2007, counsel for the petitioner provided the following description of the beneficiary's proposed 
U.S. position: 
The beneficiary will hold the position of President and General Manager of the U.S. 
Corporation. . . . The beneficiary shall have discretionary authority to run the day-to-day 
operations of the U.S. Corporation. He shall be responsible for hiring and firing personnel, 
negotiating contracts for the U.S. organization as well as establishing the goals and objectives of 
the U.S. subsidiary. Beneficiary will be responsible for all necessary executive functions with 
only limited supervision by the board of directors of the Parent Corporation. 
The petitioner further described the beneficiary's proposed duties in a letter dated December 10, 2007, indicating 
that the beneficiary's responsibilities will include: 
Overall charge of the corporation. 
Entering into contracts with U.S. companies. 
Instituting investment and marketing strategies to grow the business. 
Coordinating and directing the day-to-day operation of the corporation. 
Preparation of the corporate budget. 
EAC 08 087 52531 
Page 5 
The petitioner submitted evidence that it had purchased all of the assets and goodwill of a retail clothing store 
operating as "City Wear," located in Baltimore, Maryland, and signed a lease for the premises in November 2007. 
The original lease agreement was signed between the landlord and prior business owners in March 2007. The 
petitioner also submitted evidence that it had applied for a business license in the State of Maryland. 
The petitioner submitted a chart which briefly described the job titles and duties of each employee as follows: 
PresidentlGeneral Manager (100% Executive Functions) - Overall in charge of the corporation. 
Set company standards and policies. Coordinates and implements day-to-day operations of the 
business. Hire and fire personnel. Enters into contacts for corporation. 
Assistant ManagerICorporation Vice President ( - Implement the policies 
established by the president. Direct sales staff. 
Head Buyer ClothingiApparel- Coordinates staff and works as Head Buyer 
Salesman ClothingiApparel ( Works in the business as an experienced 
salesman. 
Bookkeeper 
 -Works in the business as an experienced bookkeeper. 
CashieriSalesman 
 - Works in the business as a front cashierisalesman. 
The director issued a request for additional evidence (RFE) on March 16,2008, in which he requested, inter alia, 
the following: (1) a comprehensive description of the beneficiary's proposed duties and an explanation as to how 
his duties will be either managerial or executive in nature; (2) a complete position description for all proposed 
employees, including one for the beneficiary's position; and (3) a breakdown of the number of hours devoted to 
each of the employee's job duties on a weekly basis. 
In a response dated June 10, 2008, counsel for the petitioner clarified that the beneficiary will serve in an 
executive capacity and will not be primarily supervising a subordinate staff of managerial or supervisory 
personnel, or managing an essential function. Rather, counsel stated that the beneficiary "shall direct the 
management of the corporation, establish goals and policies of the corporation, exercise wide latitude in 
discretionary decision-making and due [sic] so with only general supervision from the board of directors of the 
corporation." Counsel emphasized that "even small companies need someone in charge" and asserted that the 
beneficiary "has been given extraordinary authority and responsibility to run the U.S. Corporation." 
The petitioner also provided a revised employee list, noting that at least two employees, the head buyer and a 
sales person, have quit, while the cashier/salesman appeals to have either quit or reduced his working hours. The 
employees on the revised list include the beneficiary, the vice president, the bookkeeperiinventory controller, a 
buyer, a clothingiapparel salesman, a shoes and accessories salesman, and a cashierisalesman. The petitioner did 
EAC 08 087 5253 1 
Page 6 
not provide the requested position descriptions for the current employees or describe any additional employees to 
be hired during the first year of operations. 
The director denied the petition on September 2, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. In denying the 
petition, the director observed that the petitioner failed to provide a detailed position description sufficient to 
establish what qualifLing duties the beneficiary would perform in the context of the petitioner's business, and 
instead identified only general functions. The director also emphasized that the petitioner failed to provide the 
requested detailed position descriptions for the beneficiary's proposed subordinates. Overall, the director found 
the evidence insufficient to establish that the petitioner's staff would relieve the beneficiary from participating in 
the day-to-day, non-executive functions of operating a retail store. 
The director also observed that the beneficiary's proffered annual salary of $45,000 "does not appear to be 
commensurate with a bona fide manager or executive position in a major metropolitan business market." The 
director's reliance on the beneficiary's salary as a factor in determining whether he will be employed in a 
managerial or executive capacity is not supported by the statute and regulations, which contain no salary or 
wage requirements for L-1 beneficiaries. Accordingly, the director's comment in this regard is withdrawn. 
On appeal, counsel for the petitioner asserts that the beneficiary is employed as president of the petitioning 
company and that, as such, his "primary assignment shall not entail supervising a subordinate staff of 
managerial or supervisory personnel" or managing an essential function. Counsel emphasizes that the 
supervision of subordinate staff is not required under the regulatory definition of "executive capacity" at 8 
C.F.R. 8 214.2(1)(l)(ii)(C). Counsel seeks to clarify the beneficiary's duties as follows: 
[The beneficiary] performs all duties involved with [the petitioner], and continues with the 
oversight of the foreign entity as Vice-President of sales promotion. Duties that are listed 
below with the approximate percentage of time spent on each duty listed in parenthesis: 
Operating the Business (marketing sports apparel) (30%) 
Negotiating with suppliers, ordering merchandise, (25%) 
Payroll, financial books, and taxes, (1 0%) 
Keep parent corporation informed of status, finances, plans, etc., (5%) 
Oversight of parent corporation functions (30%) 
Counsel cites to National Hand Tool Corporation v. Pasquarell, 889 F.2d 1472, n.5 (5th Cri. 1989) and Mars 
Jewelers, Inc. v. INS, 702 2. Supp. 1570, 1573 (N.D. Ga. 1988) to stand for the proposition that the statute 
was not intended to limit managers or executives to persons who supervise a large number of persons or a 
large enterprise. Counsel asserts that the petitioner occupies 3,800 square feet of space and has 10 employees 
as of October 2008. Counsel further contends that the director failed to take into account the petitioner's 
reasonable needs and current stage of development, noting that the petitioner is a new company and "requires 
organizational skill to be successfully completed." 
EAC 08 087 52531 
Page 7 
In support of the appeal, the petitioner submits a payroll summary for the first three quarters of 2008 and a 
copy of its IRS Form 94 1, Employer's Quarterly Federal Tax Return, for the third quarter of 2008. The payroll 
records show that the petitioner has paid wages to five or six employees per quarter. During the third quarter 
of 2008, the petitioner paid wages to the employees identified as the bookkeeper ($2,600), the vice president 
($4,500), clothinglapparel salesman ($973), cashier/salesperson ($2,795), and two employees who were not 
identified on the previous organizational charts, ($750) and$360.50). 
Upon review, the AAO concurs with the director's determination and the appeal will be dismissed. 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. 
As noted by the director, the petitioner has failed to provide a description of the beneficiary's duties sufficient 
to establish that he will be employed by the United States entity in a primarily managerial or executive 
capacity. The petitioner's initial description of the beneficiary's duties did little more than paraphrase the 
statutory definitions of managerial and executive capacity. For example, the petitioner stated that the 
beneficiary will "have discretionary authority to run the day-to-day operations"; will be "establishing the 
goals and objectives" of the company; and will be performing "all necessary executive functions with only 
limited supervision by the board of directors of the parent corporation." The remainder of the duties were 
similarly vague, as the petitioner indicated that the beneficiary's duties will be "overall charge of the 
corporation," and "coordinating and directing the day-to-day operation of the corporation." 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. 1 103, 1108 (E.D.N.Y. 1989), afyd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In the request for evidence, the director explicitly instructed the petitioner to submit a complete description of 
the beneficiary's duties, and a breakdown of the number of hours he will devote to specific duties on a weekly 
basis. In response, counsel for the petitioner submitted a position description that was even more general than 
the initial description, as it was essentially a restatement of the statutory definition of executive capacity. See 
section 101(a)(44)(B) of the Act. The petitioner neglected to provide the requested breakdown of the 
beneficiary's duties and did not submit a description that could be considered "comprehensive" or "complete" 
by any measure. 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). 
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 
provide any detail or explanation of the beneficiary's proposed activities in the course of his daily routine. 
The fact that the beneficiary will manage the U.S. entity as its president is irrelevant absent evidence that his 
actual duties will be primarily managerial or executive in nature as defined at section 101 (a)(44) of the Act. 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. at 1108. 
EAC 08 087 5253 1 
Page 8 
The AAO acknowledges that counsel has provided an additional overview of the beneficiary's duties on 
appeal, noting that he will devote 30 percent of his time to "operating the business (marketing sports apparel)" 
and 25 percent of his time to "negotiating with suppliers, ordering merchandise." Without additional 
explanation regarding the specific tasks involved, the AAO cannot conclude that these duties, which account 
for more than half of the beneficiary's time, can be considered managerial or executive in nature. Generally, 
marketing, operational and buyinglpurchasing duties would not fall under the statutory definition of 
managerial or executive capacity. An employee who "primarily" performs the tasks necessary to produce a 
product or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Int 'I., 19 I&N Dec. 593, 
604 (Comm. 1988). 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather U.S. 
Citizenship and Immigration Services (USCIS) must determine based on a totality of the record whether the 
description of the beneficiary's duties represents a credible perspective of the beneficiary's proposed role 
within the organizational hierarchy. If a petitioner indicates that a beneficiary is coming to the United States 
to open a "new office," it must show that it is ready to commence doing business immediately upon approval. 
At the time of filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has 
acquired sufficient physical premises to commence business, that it has the financial ability to commence 
doing business in the United States, and that it will support the beneficiary in a managerial or executive 
position within one year of approval. See generally, 8 C.F.R. 5 214.2(1)(3)(~). 
In this matter, the petitioner has purchased an existing business and has demonstrated that it has the financial 
ability to do business and the required physical premises to operate its store. However, the petitioner has not 
submitted sufficient evidence describing the intended scope of the entity, its organizational structure, and its 
financial goals, as required by 8 C.F.R. 5 214.2(1)(3)(v)(C)(I). The petitioner has not submitted a detailed 
business plan, hiring plan or any financial projections for the first year of operations. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Based on the evidence of record, the petitioner's store, as of September 2008, was operating with one full-time 
vice president, a bookkeeperlinventory controller who works no more than 30 hours per week, a cashier who 
works less than 40 hours per week, a shoe salesman who earned only $973 in a 13-week period, and two 
employees whose job titles and duties have not been identified.2 Both unidentified employees earned less 
than the shoe salesman and therefore appear to work few hours. The petitioner has not submitted a hiring plan 
or otherwise indicated its intention to hire additional staff, and it is noted that the number of staff has 
remained fairly constant during the first three quarters of 2008. Counsel's claim that the petitioner now 
employs 10 individuals is not supported by any documentary evidence. The unsupported statements of 
The AAO notes that wages of $973 over a 13-week period would amount to an average workweek of less 
than 12 hours at the minimum wage of $6.55 which was in effect in Maryland in 2008. 
EAC 08 087 5253 1 
Page 9 
counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS 
v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See § 101(a)(44)(C) of the Act, 8 U.S.C. 5 1 101(a)(44)(C). In reviewing the relevance of the number of 
employees a petitioner has, federal courts have generally agreed that USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to support a 
manager." Family Inc. v. US. Citizenship and Immigration Services 469 F. 3d 13 13, 13 16 (9th Cir. 2006) 
(citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003)). Furthermore, it is appropriate for USCIS 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 Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). 
The petitioner operates a 3,800 square foot retail clothing store located in a shopping center. Based on the 
evidence of wages paid to employees, it employs one full-time worker (the vice president), a 
bookkeeperlinventory controller and cashier who work approximately 30 hours per week, a shoe salesman 
who appears to work an average of 11.4 hours per week, and two additional part-time employees who work 
minimal hours. The petitioner has not established that it employs or will employ a buyer or full-time cashiers 
and salespeople to operate the store. Therefore, while two of the employees, the beneficiary and the vice 
president, have managerial or executive job titles, it is reasonable to question whether these employees would 
need to be involved in the routine day-to-day operations of the business in order for it to remain operational. 
Furthermore, on appeal, counsel indicates that the beneficiary will devote 30 percent of his time to "operating 
the business," and 25 percent of his time to ordering merchandise, duties that have not been shown to be 
managerial or executive in nature. 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 l(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 10 1(a)(44). The reasonable needs of the petitioner 
may justify a beneficiary who allocates 5 1 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. Absent evidence that the beneficiary would be relieved of operational, marketing and 
purchasinglbuying duties within one year of approval, the petitioner has not established that he would be 
performing primarily managerial or executive duties. 
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989), and Mars 
Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size 
of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or 
executive capacity. First, the AAO notes that counsel has furnished no evidence to establish that the facts of 
the instant petition are analogous to those in National Hand Tool Corp., where the Fifth Circuit Court of 
Appeals decided in favor of the legacy Immigration and Naturalization Service (INS), or Mars Jewelers, Inc., 
EAC 08 087 5253 1 
Page 10 
where the district court found in favor of the plaintiff. With respect to Mars Jewelers, the AAO is not bound 
to follow the published decision of a United States district court in matters arising within the same district. 
See Matter of K-9, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO, the analysis does not have to be 
followed as a matter of law. Id. at 719. 
In both National Hand Tool Corp. and Mars Jewelers, Inc., the courts emphasized that the former INS should 
not place undue emphasis on the size of a petitioner's business operations in its review of an alien's claimed 
managerial or executive capacity. The AAO has long interpreted the regulations and statute to prohibit 
discrimination against small or medium-size businesses. However, consistent with both the statute and the 
holding of National Hand Tool Corp., the AAO has required the petitioner to establish that the beneficiary's 
position consists of primarily managerial or executive duties and that the petitioner will have sufficient 
personnel to relieve the beneficiary from performing operational andfor administrative tasks. Like the court 
in National Hand Tool Corp., we emphasize that our holding is based on the conclusion that the beneficiary 
will not be primarily performing managerial duties; our decision does not rest on the size of the petitioning 
entity. 889 F.2d at 1472, n.5. 
Counsel asserts on appeal that the director also placed undue emphasis on whether the beneficiary would 
manage an essential function of the company or whether he would supervise and control a subordinate staff of 
supervisors or professionals, consistent with the statutory definition of managerial capacity. See section 
101(a)(44)(A) of the Act. Counsel asserts that the petitioner has consistently explained that the beneficiary 
will serve in an executive capacity, rather than in a managerial capacity. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-day operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. 
As discussed above, an employee who will devote more than half of his time to "operating the business" and 
"ordering merchandise," along with performing other duties such as payroll, financial duties and taxes, cannot 
be considered an employee who is primarily focused on the broad goals and policies of the organization and 
removed from its day-to-day operations. The petitioner has not described any duties to be performed in an 
executive capacity beyond paraphrasing language from the statutory definition. Again, the actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1 108. 
- 
 EAC 08 087 5253 1 
Page 11 
Finally, although the petitioner does not contend that the beneficiary will be employed in a primarily 
managerial capacity, the AAO concurs with the director's conclusion that the petitioner failed to establish that 
the beneficiary primarily manages a subordinate staff of managerial, professional or supervisory employees. 
Contrary to the common understanding of the word "manager," the statute plainly states that 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)(A)(iv) of the Act; 8 
C.F.R. 5 214.2(1)(1)(ii)(B)(2). 
Here, the petitioner has indicated that the beneficiary's subordinates will include a vice president who directs 
lower-level sales staff. However, the petitioner's evidence must substantiate that the duties of the beneficiary 
and his or her subordinates correspond to their placement in an organization's structural hierarchy; artificial 
tiers of subordinate employees and inflated job titles are not probative and will not establish that an 
organization is sufficiently complex to support an executive or managerial position. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. Instead, the record indicates that the beneficiary's 
subordinates perform the actual day-to-day tasks of operating the petitioner's retail store. Though requested by 
the director, the petitioner did not provide detailed position descriptions for all proposed 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. 5 103.2(b)(14). The petitioner concedes that its business does not require professional 
employees, and it has not shown that any of the beneficiary's subordinates, notwithstanding his or her job title, 
actually supervises subordinate staff members or manages a clearly defined department or function of the 
petitioner, such that they could be classified as managers or supervisors. Thus, the petitioner has not shown 
that the beneficiary's subordinate employees will be supervisory, professional, or managerial, pursuant to 
section 10 1 (a)(44)(A)(ii) of the Act. In addition, the petitioner has neither claimed nor submitted evidence to 
establish that the beneficiary will manage an essential function of the petitioning organization. 
Finally, the AAO does not dispute that small companies require leaders or individuals who plan, formulate, 
direct, manage, oversee and coordinate activities; the petitioner in this matter, however, has not demonstrated 
that the beneficiary would spend a substantial amount of time performing duties at the managerial or 
executive level. The petitioner must establish with specificity that the beneficiary's duties comprise primarily 
managerial or executive responsibilities and not routine operational or administrative tasks. The fact that the 
beneficiary manages a business, regardless of its size, does not necessarily establish eligibility for 
classification as an intracompany transferee in an executive capacity within the meaning of section 
1 Ol(a)(lS)(L) of the Act. Here, the record fails to establish that the majority of the beneficiary's duties will be 
primarily directing the management of the organization or a component or function of the organization. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
the United States in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the evidence of record does not establish that the beneficiary was 
employed by the foreign entity in a primarily managerial or executive capacity for at least one continuous 
year within the three years preceding the filing of the petition, as required by 8 C.F.R. 5 214.2(1)(3)(v)(B). 
. ' EAC 08 087 5253 1 
Page 12 
The petitioner indicates that the beneficiary was employed as vice president and director of off-shore 
marketing and business development with the foreign entity since February 2002. The petitioner did not 
submit a position description at the time of filing; therefore, the director requested in the RFE that the 
petitioner provide: a description of the beneficiary's typical managerial responsibilities; the number of 
subordinates he managed; the job titles and duties of all of the beneficiary's subordinates in the foreign entity; 
the scope of his discretionary authority; and the amount of time he devoted to managerial/executive functions 
while employed by the foreign entity. 
In response to the RFE, counsel stated that the beneficiary "promotes trade for the parent company in foreign 
markets," and does not supervise subordinate supervisors. The petitioner further stated that the beneficiary's 
duties included: (1) establishing mid and long-term business strategy; (2) coordinating and reporting the 
corporate budget for president's approval; (3) entering new markets and new business development such as 
China outsourcing development and entry to the United States market; and (4) managing international 
marketing strategy. These brief descriptions are insufficient to establish that the beneficiary's role was 
primarily managerial or executive in nature. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990). Absent a detailed description of the beneficiary's actual duties while 
employed by the foreign entity, and more information regarding his role within the organizational hierarchy, 
the AAO cannot determine that he was employed in a primarily managerial or executive capacity. For this 
additional reason, the petition will be denied. 
Furthermore, the petitioner has not established that the beneficiary has been employed with the foreign entity 
on a full-time basis for at least one continuous year within the three years preceding the filing of the petition 
on January 22, 2008, as required by 8 C.F.R. $ 214.2(1)(3)(iii). The petitioner indicated on Form 1-129 that 
the beneficiary has been continuously employed by its foreign parent company since February 2002, and does 
not acknowledge any interruptions in employment. However, the evidence of record shows that the 
beneficiary was admitted to the United States in J-1 Exchange Visitor nonimmigrant status on July 15, 2005 
and has been physically present in the United States since that time, a period of approximately two and one- 
half years prior to the date the petition was filed. The record shows that the beneficiary was admitted as a 
research scholar in Michigan State University's Visiting International Professional Program. 
Pursuant to 8 C.F.R. tj 214.2(1)(l)(ii)(A), periods spent in the United States in a lawful status for a branch of 
the same employer or a parent, affiliate or subsidiary thereof and brief trips to the United States for business 
or pleasure shall not be interruptive of the one year of continuous employment abroad, but such periods shall 
not be counted toward fulfillment of that requirement. However, the beneficiary's time spent in the United 
States as a J-1 exchange visitor is clearly interruptive of his continuous employment abroad. The beneficiary 
has not been in the United States assigned to a branch, affiliate or subsidiary of the foreign entity, as no 
subsidiary of the foreign entity existed prior to the incorporation of the petitioner in October 2007. 
Based on the foregoing, the AAO cannot conclude that the beneficiary possesses one year of employment 
abroad within the requisite time period. For this additional reason, the petition cannot be approved. 
' EAC 08 087 52531 
Page 13 
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. 200 I), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if he or she shows that the AAO abused its discretion 
with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. 
Supp. 2d at 1043. 
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. 9 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.