dismissed L-1A Case: Retail Sales

U.S. Department of Homeland Sec~rrity 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 228 51021 Office: CALIFORNIA SERVICE CENTER Date: JUL 2 1 2006 
IN RE: Petitioner: 
Beneficia fi 
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. 
~dminisGative Appeals Office 
WAC 03 228 51021 
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 
summarily dismissed. 
The petitioner states that it is engaged in the retail sales business. The U.S. entity petitioned Citizenship 
and Immigration Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee 
(L-1 A) pursuant to section 101(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 three years. The beneficiary was initially granted a one- 
year period of stay to open a new office in the United States and the petitioner now seeks to extend the 
beneficiary's stay in order to continue to fill the position of president. 
On February 4, 2004, the director denied the petition because the petitioner failed to establish that the 
beneficiary will be employed in a primarily executive or managerial capacity. 
The petitioner subsequently filed an appeal on February 25, 2004. The director declined to treat the 
appeal as a motion and forwarded the appeal to the AAO for review. On the Form I-1290B Notice of 
Appeal, counsel for the petitioner asserts: "Service applied incorrect and incomplete legal standard and 
mischaracterized the facts, as well as presumed facts not in evidence and ruled accordingly. The decision 
should be reviewed." 
Counsel indicated on Form I-1290B that she would submit a brief and/or evidence to the AAO within 30 
days. As no additional evidence has been incorporated into the record, the AAO contacted counsel by 
facsimile to request that counsel acknowledge whether the brief and/or evidence were subsequently 
submitted, and, if applicable, to afford counsel an opportunity to re-submit the documents. To date, 
counsel has not responded to the AAO's request. Accordingly, the record will be considered complete. 
To establish eligibility under section 101(a)(15)(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 firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States 
temporarily to continue rendenng his or her services to the same employer or a subsidiary or affiliate 
thereof in a managerial, executive, or specialized knowledge capacity. 
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. 
Counsel's general objections to the denial of the petition, without specifically identifying any errors on 
the part of the director, are simply insufficient to overcome the well-founded and logical conclusions the 
director reached based on the evidence submitted by the petitioner. The assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I & N Dec. 1 (BIA 1983); Matter of Laureano, 19 I & N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I & N Dec. 503,506 (BIA 1980). 
As noted by the director, the petitioner failed to provide a comprehensive description of the beneficiary's 
proposed role as president of the petitioner's two-person company. The petitioner provided a vague and 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary does on a 
day-to-day basis. For example, the petitioner states that the beneficiary's duties include "plan, develop 
and establish policies and objectives for the company," "review activity reports and financial statements 
WAC 03 228 51021 
Page 3 
to determine progress and status in attaining objectives and revise and plan in accordance with current 
conditions," and "plan and develop client relations to improve company sales." The petitioner did not, 
however, define the beneficiary's goals and policies, or clarify the role of the marketing, sales and client 
relations functions that the beneficiary will supervise. 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 activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, the petitioner indicated on the Form 1-129 that the company has two employees. In a request 
for additional evidence, dated April 29, 20031 the director requested that the petitioner submit additional 
evidence of the staffing of the United States company, including the number of U.S. employees and their 
names, job titles, social security numbers, dates of employment, and wages per week, and Form DE-6, 
Quarterly Wage Report. In response, the petitioner explained that a Quarterly Wage Report could not be 
submitted because "it has not been filed as the employees that have been employed did not earn enough 
and were not employed long enough to submit a report." In addition, the petitioner indicated in its 
response that the U.S. company employs a contractor who started in September 2003, and a clerk who 
began her employment in November 2003. Both employees were hired subsequent to the filing of the 
petition on August 4,2003. The petitioner must establish eligibility at the time of filing the nonimmigrant 
visa petition. A visa petition may not be approved at a future date after the petitioner or beneficiary 
becomes digible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 
1978). The petitioner has not submitted evidence to establish that the beneficiary supervised a 
subordinate staff at the time the petitioner was filed. Going on record without supporting documentary 
evidence is not sufficient to satisfy the petitioner's burden of proof in these proceedings. ~atter of Soflci, 
22 I & N Dec. 158, 165 (Comm. 1998)(citing Matter of Treasure Craft of California, 14 I & N Dec. 190 
(Reg. Comm. 1972)). 
A critical analysis of the nature of the petitioner's business undermines counsel's assertion that the 
beneficiary supervises subordinate employees who would relieve her from performing non-qualifying 
duties. Rather, it appears from the record that the only individual performing any marketing and sales 
functions, finance operations and business development activities is the beneficiary herself. As the 
United States company has only recently hired a clerk and a contractor, it can only be assumed, and has 
not been proven otherwise, that the beneficiary is performing all other sales and marketing functions and 
financial development, and all of the various operational tasks inherent in operating a retail store on a 
daily basis, such as purchasing products, maintaining inventory, arranging store displays, receiving 
deliveries, paying bills, and handling routine customer transactions. Based on the record of proceeding, 
the beneficiary's job duties are principally composed of non-qualifying duties that preclude her from 
functioning in a primarily managerial or executive role. 
Accordingly, the director reasonably concluded that the beneficiary will be performing the day-to-day 
operations and directly be providing the services of the business rather than directing such activities 
through subordinate employees. An employee who "primarily" performs the tasks necessary to produce a 
product or 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 
WAC 03 228 51021 
Page 4 
enumerated managerial or executive duties); see also Matter of Church Scientology International 19 I & 
N Dec. at 604. Since the record as presently constituted is not persuasive in demonstrating that the 
beneficiary has been or will be employed in a primarily managerial or executive capacity, the appeal will 
be dismissed. 
Furthermore, another issue not presented by the director, is the fact that the petitioner did not fully 
respond to the request for evidence issued by the director on September 28, 2003. In the request for 
evidence, the director noted that the petitioner was previously granted L-1A status to set up a "new 
office'? in the United States, however, the petitioner indicated on the Form 1-129 that the requested 
extension was for a new office petition. The director requested that the petitioner explain why the 
petitioner was requesting an extension for a new office petition. In addition, the director requested that 
the petitioner clarify the specific nature of the new office's business, including a detailed description of 
the beneficiary's initial year of employment with the new office in the United States. The petitioner 
failed to submit this document in response. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 5 
103.2(b)(8). The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 8 103.2(b)(14). For this additional reason, the petition will not 
be approved. 
Since the petitioner failed to adequately respond to the director's request for evidence, the petitioner has 
not established that it is eligble for an extension of the initial one-year "new office" validity period. The 
regulation at 8 C.F.R. $ 214.2(1)(14)(ii) provides strict evidentiary requirements that the petitioner must 
satisfy prior to the approval of this extension petition. Upon review, the petitioner has not satisfied any of 
the enumerated evidentiary requirements. The petitioner has not submitted evidence that the United 
States and foreign entities are still qualifying organizations as defined in 8 C.F.R. 9 214.2(1)(l)(ii)(G). 
The petitioner has not submitted evidence that the United States entity has been doing business for the 
previous year as defined in 8 C.F.R. tj 214.2(1)(l)(ii)(H). The petitioner has not submitted a detailed 
statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary 
will perform under the extended petition so that the AAO can determine whether the beneficiary is 
employed in a primarily managerial or executive capacity. The petitioner has not submitted a statement 
describing the staffing of the new operation. For all of these reasons, the petition may not be approved 
and the appeal will be dismissed. 
Furthermore, beyond the ,decision of the director, the petition indicates that the beneficiary own I00 
percent of the foreign entity, and thereby of the petitioning company. 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 this matter, the petitioner has not furnished evidence that the 
beneficiaryls services are for a temporary period and that the beneficiary will be transferred abroad upon 
completion of the assignment. In addition, the fact that the owner of the original foreign corporation 
resides in the United States raises the question of whether the parent organization is still doing business so 
that a. qualifying relationship exists pursuant to 8 C.F.R. 9 214.2(1)(l)(ii)(G). For these additional 
reasons, the appeal will be dismissed and the petition denied. 
Page 5 
An application or petition that fails to comply with the technical requirements of the law may be denied 
! 
by the MO 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. 1989)(noting 
that the MO reviews appeals on a de novo basis). 
Regulations at 8 C.F.R. 8 103.3(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. 
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. Inasmuch as counsel has failed to identify 
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not 
sustained that burden. Therefore, the appeal will be summarily dismissed. 
ORDER: 
 The appeal is summarily dismissed.