dismissed L-1A Case: Retail, Trade, And Investment

L1.S. Department of Homeland Security 
20 Mass. Ave, N.W., Rm. A3000 
Washington, DC 20529 
'dmdfLmg Qts&laed a0 
prevent clearly unmted 
invasion of personal pi- 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
File: SRC 04 178 5 1306 Office: TEXAS SERVICE CENTER Date: JUL 1 2 2006 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(L) 
IN 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. 
Administrative Appeals Office 
SRC 04 178 5 1306 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner seeks to extend the employment of the beneficiary temporarily in the United States as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 3 1101(a)(15)(L). The U.S. petitioner, a corporation organized in the State of Texas 
claims to be engaged in retail, trade, and investment. The petitioner claims to be the subsidiary of -~ 
located in Mumbai, India. 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. 
The director denied the petition on two independent grounds, concluding that (1) the beneficiary was not 
functioning in the United States in a managerial or executive capacity; and (2) the petitioner failed to establish 
that it had been doing business for the year prior to the date the petition was filed as required by 8 C.F.R. 
2 14.2(1)(14)(ii)(B). 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner contends that the 
director's denial was based on "one single erroneous point," namely, the finding that the petitioner had not 
been doing business for the previous year. Counsel presents numerous arguments to refute the director's 
findings with regard to this issue, but does not raise or address the first basis of the director's denial. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. tj 214.2(1)(14)(ii) provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(a) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(b) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(c) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(d) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
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capacity; and 
(e) 
 Evidence of the financial status of the United States operation. 
The first issue in this matter is whether the beneficiary has been and will continue to be employed by the 
United States entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. fj 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. 
On page one of the director's decision of November 5, 2004, the director states: "You have failed to prove 
that you are employed in a primarily managerial or executive capacity." This brief statement is followed by a 
SRC 04 178 51306 
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recitation of the definitions of both managerial and executive capacity, as defined by 8 C.F.R. 9 
214.2(1)(l)(ii)(B) and (C). The director, however, makes no further mention of the basis for the denial nor 
does she discuss the evidence submitted and any deficiencies therein.' Counsel on appeal, however, does not 
address this basis for the denial of the petition. 
The AAO notes that the petitioner identified the beneficiary's position as that of "executive officer," and 
described her duties in the United States as follows: 
Confer with the Indian Company and develop long-range goals and objectives of the US 
Company. 
 Oversee expansion of operations. 
 Direct and coordinate activities of the 
organization and formulate and administer company policies: Direct and coordinate activities 
relating to purchasing, production, operations and sales for which responsibility is delegated 
and targeted to further attainment of goals and objectives. Review and analyze activities, 
costs, operations, and forecast data to determine progress toward stated goals and objectives. 
Discuss with employees to review achievements and discuss required changes in goals or 
objectives of the company. 
The director issued a request for evidence on July 9, 2004, which requested additional information with 
regard to the beneficiary's duties and the staffing levels of the petitioner. Specifically, an organizational chart 
for the petitioner was requested listing all employees, their job titles, and duties. In a response dated 
September 28,2004, the petitioner stated that it was precluded from commencing business until the end of the 
first year of operations; therefore, hiring only started at the end of the first year. The petitioner submits an 
"Internet Filing Summary" for the petitioner for the quarter ending June 30, 2004, which indicates that nine 
employees were on the payroll at that time. The petitioner failed, however, to submit additional evidence of 
their dates of hire, so it is impossible for the AAO to determine if they were employed by the petitioner at the 
time the petition was filed. Failure to submit requested evidence that precludes a material line of inquiry shall 
be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). 
The petitioner also submits an updated description of the beneficiary's duties, which states as follows: 
Direct and coordinate activities of the organization and formulate and administer 
company policies [20%]. 
In consultation with the management and Indian firm develop long-range goals and 
objectives of the company-with emphasis on developing and guiding expansion 
policies [20%]. 
Be responsible for corporate planning, general administration, marketing-sales and 
purchasing activities for the subsidiary [20%]. 
1 
 When denying a petition, a director has an affirmative duty to explain the specific reasons for the denial; this 
duty includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 
291 ofthe Act, 8 U.S.C. 8 1361. See 8 C.F.R. fj 103.3(a)(l)(i). 
SRC 04 178 5 1306 
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Direct and coordinate activities of managers and employees in the production, 
operations, purchasing, and marketing departments for which responsibility is 
delegated for further attainment of goals and objectives [20%]. 
Review and analyze activities, costs, operations, and forecast data to determine 
progress toward stated goals and objectives [lo%]. 
Review with management and employees company's achievements and discuss 
required changes in goals or objectives of the company [lo%]. 
On November 5, 2004 the director denied the petition, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity. The petitioner declined 
to address this issue on appeal. 
The AAO, upon review of the record of proceeding, concurs with the director's finding that the petitioner has 
not established that the beneficiary will be employed in either a primarily managerial or executive capacity. 
First, the petitioner failed to specifically articulate the nature of the beneficiary's duties. For example, the 
petition claims the beneficiary is the executive officer. The statement of her duties, however, is vague and 
merely paraphrases the regulatory definitions. The overly broad descriptions provided in the record fail to 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
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. Suva, 724 F. Supp. 1103, ard, 905 F.2d 41. Although the petitioner 
provided a broad statement of the beneficiary's duties in the initial petition and again in response to the 
request for evidence, this description did not articulate what a specific day in the role of the beneficiary would 
consist of. Instead, the descriptions merely provided a brief synopsis of the beneficiary's 
managerial/executive duties, and failed to discuss or identify job-specific tasks or obligations the beneficiary 
is required to perform. Essentially, the petitioner equates managerial and executive capacity with the 
beneficiary's title of executive officer, yet fails to provide solid examples of how this managerial or executive 
capacity is actually attained. 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 
ofproof. Id.; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In addition, the petitioner has failed to show that the beneficiary has a staff of professional, supervisory, or 
managerial employees to relieve her from performing non-qualifying tasks. Although the petitioner contends 
that it employs nine persons, there is no definitive evidence in the record to show that these persons were on 
the petitioner's payroll at the time of filing. To establish that the petitioner has staffed the new operation in 
the previous year, the petitioner must submit a description of staffing, including the number of employees and 
the types of positions, as well as evidence of the wages paid to the employees. 8 C.F.R. 9 214.2(1)(14)(ii)(D). 
In the absence of such evidence as pay stubs and payroll records, the petitioner has not established that the 
petitioner employs a subordinate staff that would relieve the beneficiary from performing non-qualifying 
duties. The petitioner must establish eligibility at the time of filing the nonirnrnigrant visa petition. A visa 
SRC 04 178 51306 
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petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
On review, 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 petitioner indicates that it plans to 
hire additional managers and employees in the future, and that hiring was slow to start as a result of the 
petitioner's delay in conducting business during the previous year due to problems with the social security 
department. However, 8 C.F.R. 9 214.2(1)(3)(v)(C) allows the intended United States operation one year 
within the date of approval of the petition to support an executive or managerial position. There is no 
provision in Citizenship and Immigration Services (CIS) regulations that allows for an extension of this one- 
year period. If the business is not sufficiently operational after one year, the petitioner is ineligible by 
regulation for an extension. In the instant matter, the petitioner has not reached the point that it can employ 
the beneficiary in a predominantly managerial or executive position, despite the petitioner's claim that it has 
begun to conduct business within the required time period and thus has satisfied the regulatory requirement. 
For this reason, the petition may not be approved. 
The second issue in this matter is whether the petitioner has been doing business as required by the regulations 
for the previous year. The regulation at 8 C.F.R. §214.2(1)(l)(ii)(H) defines the term "doing business" as "the 
regular, systematic, and continuous provision of goods andlor services by a qualifying organization and does not 
include the mere presence of an agent or office of the qualifying organization in the United States and abroad." 
In this matter, the petitioner claims that it is engaged in "retail, trade, and investment." The director denied the 
petition, finding that the petitioner had failed to satisfy the regulatory requirements for doing business. 
With the initial petition, insufficient evidence of the petitioner's business practices was submitted. 
Consequently, in the request for evidence issued on July 9, 2004, the director requested documentation 
establishing that the petitioner had been doing business during the previous year as required by the 
regulations. In the response filed on September 28, 2004, the petitioner stated "[als noted in the past, the 
Petitioner was prevented from commencing full business operations until June 2004 - because of problems 
with the social security department." With regard to the director's request for the petitioner's U.S. 
Corporation Income Tax Return for 2003, the petitioner stated that "true operations did not commence until 
June 2004 (near the end of its one-year approval period), as such 2003, corporate income tax returns are not 
available." Finally, the petitioner submits evidence of a commercial lease secured on May 15, 2004, 
approximately 1 month prior to the petition's expiration. 
On review of the evidence submitted, the AAO concludes that the petitioner failed to demonstrate that it had 
been doing business during the previous year. The record indicates that the beneficiary was granted a 
one-year period of stay from June 14, 2003 to June 13, 2004 to open a new office. The record further 
indicates that the petitioner would engage in retail, trade, and investment. However, by the petitioner's own 
admission, there is no indication of any business activities whatsoever until June 2004, the same month the 
initial new office petition expired. In addition, there is no documentation or information regarding the 
activities of the beneficiary and the petitioner during the time period prior to June 2004. 
SRC 04 178 51306 
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Based on this limited information, it is clear that the petitioner was not doing business as required by 8 C.F.R. 
tj 214.2(1)(14)(ii)(B). The AAO acknowledges the petitioner's claim that business was slow to start in the 
wake of problems with the social security administration. However, the record is devoid of an explanation as 
to what the petitioner did between June 2003 and June 2004, and further lacks any explanation or 
documentation regarding other activities engaged in by the petitioner to promote its business during this 
period. The fact that the petitioner did not commence operations until June 2004, the month of the visa 
expiration, does not excuse the petitioner from meeting the regulatory requirements. 
As stated above, the regulation at 8 C.F.R. 4 214.2(1)(3)(v)(C) allows the intended United States operation 
one year within the date of approval of the petition to establish the new office. Furthermore, at the time the 
petitioner seeks an extension of a new office petition, the regulations at 8 C.F.R. 4 214.2(1)(14)(ii)(B) require 
the petitioner to demonstrate that it has been doing business for the previous year. In the present matter, the 
evidence submitted at the time of filing confirmed that the petitioner had not been conducting business as 
required. The fact that it began conducting business shortly before the expiration of the beneficiary's initial 
stay does not automatically entitle the petitioner to an extension of the visa, for it fails to change the fact that 
the petitioner failed to conduct business during the previous year. Counsel seems to be under the impression 
that by conducting as little as one day of business before the expiration of the initial one-year period, the 
requirement is satisfied. This is not the case. For this additional reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner's evidence pertaining to the stock distribution of the 
companies does not satisfy the requirements for a qualifying relationship between the United States and the 
foreign entity pursuant to 8 C.F.R. 4 214.2(1)(l)(ii)(G). 
 Specifically, the petitioner claims that it is the 
subsidiary of by way of that company's majori ownershi interest in the petitioner. 
Specifically, the petitioner claims to be owned by two shareholders: w the foreign entity, with 
510 shares, and the beneficiary, with 490 shares. However, no evidence of consideration exchanged for the 
stock ownership in the petitioner has been offered. In fact, the stock ledger submitted shows a blank entry, 
marked as (-), in the space reserved for the amount paid for the stocks. Without evidence that the foreign 
entity actually paid for its ownership interests in the petitioner, a qualifying relationship cannot be found to 
exist. 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)). 
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). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v, United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
SRC 04 178 51306 
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The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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.