dismissed L-1A Case: Retail Distribution

U.S. Department of fJomeland Security 
20 Massachusetts Ave. N.W. Fm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: SRC 04 079 50235 Office: TEXAS SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that olginally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
SRC 04 079 50235 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (MO) on appeal. The appeal will be summarily 
dismissed. 
The petitioner states that it is an importer, distributor, and wholesaler of retail products. It seeks to extend 
its authorization to employ the beneficiary temporarily in the United States as its director of operations. 
The director denied the petition based on the conclusion that the petitioner failed to establish that (I.) the 
beneficiary has been and will continue to be employed in a managerial or executive capacity; or that (2) 
the petitioner had been doing business for the previous year as required by the regulations. 
On appeal, the petitioner indicated on Form I-290B that it would submit a brief andfor additional evidence 
to address the director's denial within 30 days. Although the petitioner submitted a brief statement on the 
Form I-290B, it failed to adequately address the director's conclusions. In this brief statement, the 
petitioner states that the beneficiary, as a manager, also carries out sales duties and that this fact was not 
understood by the director in her evaluation. The petitioner continues by restating the definitions of 
managerial and executive capacity and contends that the director's decision in this matter was unjust. 
The petitioner's general objections on the Form I-290B, without specifically identifying any errors on the 
part of the director, are simply insufficient to overcome the well-founded and logical conclusior~s the 
director reached based on the evidence submitted by the petitioner. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
On the Notice of Appeal received on May 17, 2004, the petitioner clearly indicates that it would send a 
brief with the necessary evidence [to the MO] within thirty days. According to 8 C.FR. 9 
103.3(a)(2)(i), the petitioner "shall file the complete appeal including any supporting brief with the office 
where the unfavorable decision was made within 30 days after service of the decision," which in the: case 
at hand would be no later than Wednesday, June 16, 2004. While the petitioner may request that it be 
granted additional time to submit an appeal, no such request was made in this case. See 8 C.F.R. fj 
103.3(a)(2)(vii). Even if additional time to submit a brief in support of the appeal had been requested and 
approved, to date there is no indication or evidence that the petitioner ever submitted a brief andlor 
evidence in support of the appeal with the Service or with the AAO.' As stated above, absent a clear 
statement, brief andlor evidence to the contrary, the petitioner does not identify, specifically, and 
. erroneous conclusion of law or statement of fact. Hence, the appeal must be summarily dismissed. See 8 
C.F.R. $ 103.3(a)(l)(v). 
' On June 21, 2005, the MO sent a fax to the petitioner. The fax advised the petitioner that no evidence 
or brief had ever been received in this matter, and requested that counsel submit a copy of the brief andfor 
additional evidence, if in fact such evidence had been submitted, within five business days. As of the date 
of this decision, the AAO has received no response from counsel or the petitioner. 
SRC 04 079 50235 
Page 3 
Regulations at 8 C.F.R. 9 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the 
party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 
Contrary to the petitioner's assertions, it does not appear that the beneficiary has met the qualifications for 
working in capacity that is primarily managerial and/or executive. Rather, the record shows a number of 
deficiencies, including the fact that the beneficiary performs the sales functions of the company and the 
petitioner's failure to submit any evidence establishing that it employs dedicated sales persons to relieve 
the beneficiary from this non-qualifying task. 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 Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). The 
regulation at 8 C.F.R. fj 214.2(1)(3)(v)(C) allows the "new office" 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 does not have sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and adminis.h:ative 
tasks, the petitioner is ineligble by regulation for an extension. 
Furthermore, the petitioner entirely disregarded the director's second basis for the denial, where she noted 
that there was insufficient evidence to demonstrate that the petitioner had been doing business for the 
previous year as required by the regulations. The petitioner's general comments fail to acknowledge or 
address the director's specific reasons for the denial. Accordingly, the appeal will be summarily 
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. 2001), 
affd. 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). 
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. fj 1361. Inasmuch as counsel has failed to identify 
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner h,as not 
sustained that burden. Therefore, the appeal will be summarily dismissed. 
ORDER: The appeal is summarily dismissed.