dismissed L-1A Case: Retail Trade

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvac} 
PUBLlCCOPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave._ N.W .. MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Date: APR 2 5 2011 Office: VERMONT SERVICE CENTER FILE: EAC0819451412 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office in your case. All 
of the documents related to this matter have been returned to the office that originally decided your case. 
Please be advised that any further inquiry that you might have concerning your case must be made to that 
office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
EAC 0819451412 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on 
appeal before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be 
denied. 
The petitioner filed this nonimmigrant petition seeking to transfer the beneficiary as an L-I A nonimmigrant 
Manager, Sales & Purchase,1 pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a Texas corporation, states that it is engaged in retail trade 
and investment. It claims to be an affiliate of Ghazi Service Station, located in Karachi, Pakistan. 
The director denied the petition on September 17, 2008, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity. 
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 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. § 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 (1)(1 )(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 perfonned. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(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 him/her to perform the intended 
I The petitioner and counsel alternate between referring to the proffered position as a Manager, Sales & 
Purchasing and a Finance Manager. In the Form 1-129, the position is titled Manager, Sales & Purchasing, 
but in the support letter submitted with the petition, the petitioner refers to the proffered position as a Finance 
Manager. On appeal, counsel refers to the proffered position as a Sales and Purchasing Manager ("Finance 
Manager"). As the petitioner indicates in the Fonn 1-129 that the position title is Manager, Sales & 
Purchasing, the AAO will refer to the proffered position by this name. 
EAC 0819451412 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed by the United States entity in a primarily managerial capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 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; 
(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. 
The nonimmigrant petition was filed on July 3, 2008. The petitioner indicated on Form 1-129 that the U.S. 
company has 40 employees, and stated its intention to employ the beneficiary as its Manager, Sales & 
Purchase. In a letter dated June 26, 2008, the petitioner described the beneficiary's proposed duties as 
follows: 
• Analyzing relevant financial data to produce forecasts of business, industry and economic 
conditions to utilize in making investment decisions: 
• Conducting and preparing a quantitative analyses [sic 1 and company reports of relevant 
financial information; 
• Interpreting data affecting investment programs, including trends in investments risks and 
economic influence; 
• Determining pricing for goods and services which are offered to the public, after thoroughly 
analyzing the market trend; 
EAC08 19451412 
Page 4 
• Reporting directly to Director of Finance; and 
• Implementing strategic financial planning goals. 
The petitioner stated in its letter that the company is engaged in the and h~ 
•.•.• " . II .• d operate a restaurant the name of as well as _ 
" and The petitioner submitted a copy of its 2007 U.S. 
Corporation Income Tax Return, which indicates it had gross income of over $6.5 million. The petitioner also 
submitted an organizational chart for the U.S. company, which indicates that the majority of the petitioner's 
workers are cashiers, cooks, waitresses, and dishwashers. The also that the beneficiary would 
directly supervise one employee, and that the beneficiary would 
directly report to the Director inance. claims to employ a President, a Managing 
Director, an Operations Manager, and a Restaurant Manager. 
The director issued a request for additional evidence on July 14, 2008. In part, the director requested that the 
petitioner submit the following: (I) a comprehensive description of the beneficiary's duties that indicates how 
such duties will be managerial or executive in nature; (2) additional information regarding the beneficiary's 
duties with the foreign entity; and (3) an organizational chart for the foreign entity along with complete 
position descriptions for all the foreign entity's employees. The director noted that the position description 
did not include supervision of any employees, even though the organizational chart indicates that the 
beneficiary will supervise one employee, and that it seems unusual that someone performing the duties of the 
proffered position would nonnally have direct supervisory control over retail shop employees. 
In a response received on September 3, 2008, counsel for the petitioner stated that the beneficiary would be 
responsible for the following: 
[D]irecting and coordinating [the petitioner's] financial and budget activities in order to fund 
operations and increase efficiency. He will also be responsible for overseeing the flow of 
cash and finances of [the petitioner] in tenns of transactions between vendors and suppliers as 
well as profits generated from customers. He will establish and maintain relationships with 
local vendors/suppliers and report directly to [the Director of Finance] on any and all findings 
and conflicts that may arise with the company's personnel. [The beneficiary] will also 
prepare comprehensive reports pertaining to [the petitioner's] financial activities and submit 
these to the directors and President .... 
Furthennore, [the beneficiary] will be absolved 
petitioner]. He will directly "lrIPn,i,p 
of the four entities of [the oversees 
capacity as Manager, is in the position of first line supervisor/manager for [the petitioner]. 
She is directly responsible for supervision of the cashiers, ensuring staff adheres to company 
standards, and providing guidance as the employees handle complex issues or deal with 
customer complaints. In addition, as ~ill review and assess cashier 
EAC0819451412 
Page 5 
records and daily reports pertaining to the entities sales. Thus, [the beneficiary] will not have 
"direct supervisor control over retail shop employees" as was stated in the Request for 
Evidence, but instead, he will directly oversee the work of one ofthe entity's managers. [The 
beneficiary] will require an accurate assessment of finances from Ms._as she is in the 
position of knowing profits generated from the customers. Therefore, because [the 
beneficiary] will be overseeing the work of Ms. _ he will be performing qualifYing 
duties as Finance Manager through supervision of her review and assessment of profits. 
Counsel did not submit any documentation from the petitioner to support these assertions. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). Therefore, counsel's assertions regarding the nature ofthe proffered duties and 
supervisory responsibilities provided in response to the RFE will not be considered on appeal. 
The director denied the petition on September 17, 2008, concluding that the petitioner did not establish that 
the beneficiary would be employed in a primarily managerial or executive capacity. The director noted in his 
denial that the proffered duties are consistent with those of an accounting clerk and purchasing agent as 
described in the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) and that the 
petitioner did not provide sufficient evidence that the beneficiary would have substantial managerial 
discretion. 
On appeal, counsel for the petItIOner asserts that the evidence submitted in support of the petItIon 
demonstrates that the proffered position is closest to that of a purchasing manager or a financial manager, 
rather than a purchasing agent or accounting clerk, as described in the Handbook. Counsel also asserts that 
the beneficiary will have substantial managerial discretion regarding pricing in the petitioner's retail store and 
that the beneficiary will supervise and have hiring and firing authority over another employee who will be 
responsible for routine tasks. Counsel submits a brief in support of the appeal. 
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not 
established that the beneficiary would be employed in a primarily managerial or executive capacity. 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. 
The definitions of executive and managerial capacity primarily have two common parts. First, the petitioner 
must show that the beneficiary performs the high-level responsibilities that are specified in the definitions. 
Second, the petitioner must show that the beneficiary primarily performs these specified responsibilities and 
does not spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 
1533 (Table), 1991 WL 144470 (9th Cir. July 30,1991). 
EAC 0819451412 
Page 6 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial capacity of a beneficiary, including the beneficiary's duties, the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's actual 
duties and role in a business. 
Although counsel argues that the beneficiary will supervise one supervisory employee, the plain language of 
the statute clearly requires in part that a managerial capacity employee supervise and control "the work of 
other supervisory, professional, or managerial employees." Section 101(a)(44)(A)(ii) of the Act. Supervising 
and controlling one supervisory employee, even if established, is insufficient to meet the statutory 
requirement that more then one supervisory, professional, or managerial employee be supervised and 
controlled by the beneficiary. See id. Furthermore, it is also unclear whether the alleged subordinate, Ms. 
Laura, will relieve the beneficiary from non-managerial tasks as it appears this employee's primary role is to 
manage cashiers at one of the petitioner's restaurants. Therefore, it has not been established that the 
beneficiary qualifies as a personnel manager. 
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 10 I (a)( 44)(A)(ii) of the Act. The term "essential function" is not defined by statute 
or regulation. If a petitioner claims that the beneficiary is managing an essential function, the petitioner must 
furnish a written job offer that clearly describes the duties to be performed in managing the essential function, 
i.e. 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 function. See 8 C.F.R. § 
204.5Ul(5). In addition, the petitioner's description of the beneficiary'S daily duties must demonstrate that the 
beneficiary manages the function rather than performs the duties related to the function. 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. Boyang, Ltd. v. I.N.s., 67 F.3d 305 (Table), 1995 WL 
576839 (9th Cir, 1995)(citing Matter CifChurch Scientology international, 19 I&N Dec. 593, 604 (Comm. 
1988)). In this matter, the petitioner has not provided evidence that the beneficiary manages an essential 
tunction. 
The petitioner has provided a vague, nonspecific posItIon description that fails to identify the specific 
managerial duties to be performed by the beneficiary or the amount of time he will devote to such duties. For 
example, the petitioner's statements that the beneficiary will be responsible for analyzing relevant financial 
data and interpreting that data conveys little understanding of the actual duties the beneficiary will perform on 
a day-to-day basis as Manager, Sales & Purchasing of the petitioning company. The petitioner has failed to 
provide any detail or explanation of the beneficiary's activities in the course of his daily routine. 
The petitioner failed to provide a breakdown of how the beneficiary would allocate his time or to identify the 
amount of time devoted to specific tasks. Since this description of the beneficiary's duties, which includes 
operational tasks, fails to quantifY the exact amount of time the beneficiary will spend on them, the AAO 
cannot determine what an average day or week will consist of for the beneficiary. In addition, the fact that the 
EAC 08 19451412 
Page 7 
record does not include a detailed posItion description regarding the beneficiary's alleged subordinate 
employee renders it impossible to determine with sufficient certainty whether the beneficiary will be relieved 
from performing non-qualitying duties associated with financial analysis, interpreting investment data, or 
general duties associated with operating a restaurant and gas station/convenience stores. 
Furthermore, the petitioner indicates that the beneficiary's time will be spent in financial analysis and 
interpreting investment data, but the organizational chart indicates that the petitioner already employs a 
Director of Finance, a Managing Director, and an Operations Manager. The petitioner did not provide job 
descriptions for these other positions, but given their titles and the claim that the petitioner primarily employs 
cashiers and restaurant personnel, the AAO finds it reasonable to question whether a company that allegedly 
owns a truck stop restaurant and several gas stations/convenience stores would plausibly require a Manager, 
Sales and Purchasing in addition to a Director of Finance, a Managing Director, and an Operations Manager. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter oj Ho, 19 I&N Dec. 582, 
591 (BIA 1988). 
By statute, eligibility for this classification requires that the duties of a position be "primarily" of an executive 
or managerial nature. Sections 101(A)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). The fact that a 
beneficiary will manage a business does not necessarily establish eligibility for classification as an 
intracompany transferee in a managerial or executive capacity within the meaning of sections IOI(a)(15)(L) 
of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26,1987). Therefore, while the beneficiary in this matter may 
exercise discretion over the petitioner's finances, the petitioner must still establish that he is not primarily 
involved in performing the company's day-to-day operations. Overall, the evidence submitted (or lack 
thereof) suggests that the beneficiary may perform both managerial and operational tasks, but the petitioner 
has failed to provide any meaningful information to quantify the time the beneficiary spends on them. This 
failure of documentation is important because most of the beneficiary'S daily tasks, as discussed above, do not 
fall directly under traditional managerial duties as defined in the statute. For this reason, the AAO cannot 
determine whether the beneficiary is primarily performing the duties of a manager or executive. See, e.g, 
IKEA US, Inc. v. Us. Dept. oj.Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Overall, the petitioner's claims are undermined by its failure to provide a detailed description of the 
beneficiary's duties, including a breakdown of the day-to-day responsibilities, and the lack of supporting 
documentation to substantiate the petitioner's and counsel's claims that the proffered duties will be primarily 
managerial in nature. Based on these deficiencies, the AAO is unable to determine the actual duties to be 
performed by the beneficiary and his subordinates, and cannot conclude that the beneficiary would be 
employed in a primarily managerial capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, it also cannot be found that there is sufficient evidence in the record of 
proceeding to establish either (I) that the petitioner has a qualifying relationship with the claimed overseas 
employer of the beneficiary or (2) that the beneficiary was continuously employed abroad for the requisite 
one year period of time in a managerial, executive, or specialized knowledge capacity. First, with regard to 
the claimed affiliation, there is no evidence, for example, regarding the actual payment for the 510 shares 
allegedly sold Furthermore, although the petitioner's 2007 and 2006 
EAC 0819451412 
Page 8 
federal tax returns appear to corroborate the claimed ownership of outstanding stock, neither return is signed, 
and the stated $1,000 value for the stocks issued by the corporation is at odds with what appears to be a 
corporation earning an annual income of approximately $1 million dollars. In other words, absent an 
explanation and evidence to the contrary, it does not appear credible that Mr. _ would sell more than 
half of his ownership in the petitioner for $510 given its apparent value. 
Second, with regard to the beneficiary's employment abroad, insufficient evidence has been presented to 
establish his actual employment. Although the foreign entity claims that the beneficiary is paid in cash and, 
as a result, "there are no records of salary slips," this claim is simply not credible. Again, absent an 
explanation and evidence to the contrary, it is not credible that the foreign entity would not have or maintain 
some documents relevant to payroll given the claimed size of its operations. Moreover, with regard to the 
foreign entity's organization chart, no evidence has been submitted to corroborate the claims made in this 
document. As such, it cannot be found that the beneficiary actually manages or supervises anyone andlor has 
any subordinates to alleviate the beneficiary from having to primarily perform non-qualifying duties. As 
such, the petitioner has also failed to establish that it meets the requirements at 8 C.F.R. §§ 214.2(1)(3)(iii) or 
(iv). For this addition reason, the petition cannot be approved. 
The AAO conducts appellate review on a de novo basis. See So/lane v. DO.!, 381 FJd 143, 145 (3d Cir. 
2004). 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. 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. 
ORDER: The appeal is dismissed. The petition is denied.