dismissed L-1A Case: Rug And Carpet Import/Export

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 150 53744 Office: CALIFORNIA SERVICE CENTER Date: JUN 1 i? 2W5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(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. 
Robert P. Wiemann, Director 
\;dministrative Appeals Office 
WAC 03 150 53744 
Page 2 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 1997 and 
claims to be an importer and exporter of Oriental and Persian rugs and carpets. The petitioner claims to be an 
m-Und Export Mit Teppichen, located in Hamburg, Germany. The petitioner 
to employ the beneficiary temporarily in the United States as its president for 
two years, at a weekly salary of $500.00. The director determined that the petitioner had failed to submit 
sufficient evidence to establish that the beneficiary had been or would be employed by the U.S. entity in a 
primarily managerial or executive capacity. The beneficiary was initially granted a one-year period of its stay 
to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay for a 
final two years. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties have 
been and will be managerial or executive in nature. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. # 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or 
her application for admission into the United States, has been employed abroad continuously 
for one year by a firm or corporation or other legal entity or parent, branch, affiliate, or 
subsidiary thereof, and who seeks to enter the United States temporarily in order to render his 
or her services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in 
a capacity that is managerial, executive, or involves specialized knowledge. 
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 (I)(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 qualifying organization with the three years preceding the filing of the 
petition. 
WAC 03 150 53744 
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 hidher to perform the intended serves 
in the United States; however, the work in the United States need not be the same 
work which the alien performed abroad. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(9 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 lOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means 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. 
Section lOl(a)(#)(C) of the Act, 8 U.S.C. 5 1101 (a)(44)(C), provides: 
WAC 03 150 53744 
Page 4 
If staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, the Attorney General shall take into account the reasonable 
needs of the organization component, or function in light of the overall purpose and stage of 
development of the organization, component, or function. An individual shall not be considered 
to be acting in a managerial or executive capacity (as previously defined) merely on the basis of 
the number of employees that the individual supervises or has supervised or directs or has 
directed. 
The petitioner initially described the beneficiary's duties in the petition as: "PresidentIDirector of [the U.S. 
entity]: formulated corporate policy; set up and expanded into the U.S. market for sale of rugs and carpets; 
negotiated contracts with U.S. suppliers; set prices on merchandise and directed overall operations." 
In a letter of support, dated April 4, 2003, the petitioner described the beneficiary's duties by stating: 
During the course of the past five (5) years, [the beneficiary] has been involved in the 
operation, management, maintenance, and overseeing of the business activities of the U.S. 
Company. The company has seen and experienced steady growth and has become a visible 
presence in the Oriental and Persian Rug market in the Southern California area. 
As evidence, the petitioner submitted copies of the U.S. entity's IRS Form 1120, U.S. Corporate Income Tax 
Return for 2001; and copies of the foreign entity's payroll records for the year 2002. 
The director, in turn, found the petition to be defective and requested that the petitioner submit additional 
evidence including: copies of the U.S. entity's organizational chart, Form DE-6, Quarterly Wage Report and 
Form 941, Quarterly Wage Report for the last three quarters preceding the filing of the petition, payroll 
summaries, Forms W-2 and W-3, a description of the beneficiary's job duties, and proof of NSEERS 
registration. 
In response to the director's request for evidence, the petitioner stated that the beneficiary had been in the 
Oriental and Persian rug business for more than thirty years, and had served as an executive with the foreign 
entity since 1985. The petitioner described the beneficiary's duties as: 
[The beneficiary] directs [the U.S. entity], sets the goals for the organization and exercises 
wide discretion in the day to day [sic] management. [The beneficiary's] duties include hiring 
workers, including delivery personnel, office and sales staff. [The beneficiary] oversees the 
marketing of the business, approves new advertising campaigns, and sets the marketing goals 
for the company. 
The petitioner submitted a copy of the U.S. entity's organizational chart that depicted the beneficiary as 
president of the company. The chart also listed a CPA position that was on a contract basis, a salesmen 
position that was to be filled on a temporary basis, a service and delivery position that was to be filled on a 
per-job basis, an office clerk's position that was to be filled "as needed," and a customer service 
representative position that was to be filled "as needed." The petitioner submitted copies of the U.S. entity's 
Form DE-6 and Form 941. The petitioner stated that the foreign entity pays most of the beneficiary's salary 
to allow the U.S. entity to maximize its liquid assets. The petitioner referred to the foreign entity's payroll 
record submitted with the initial petition to substantiate the beneficiary's salary. 
WAC 03 150 53744 
Page 5 
The director subsequently denied the petition, determining that the petitioner had failed to submit sufficient 
evidence to establish that the beneficiary had been or would be employed in a primarily managerial or 
executive capacity. The director noted that the U.S. entity had been in business for five years and yet had no 
other employees besides the beneficiary. The director also noted that the IRS Form 1120 for the year 2001 
showed that $3,600 was issued by the company as compensation for officers, and that the company's taxable 
income was in the amount of $662.00. The director further noted that when a company has no regular 
employees, it becomes questionable as to whether the operator of the business is engaged primarily in 
managerial or executive duties. The director stated that there was insufficient evidence to show that the 
beneficiary would supervise the work of other supervisory, professional, or managerial employees who would 
relieve the beneficiary from performing non-qualifying duties. 
On appeal, counsel disagrees with the director's decision and asserts that Citizenship and Immigration 
Services (CIS) abused its discretion in denying the petition and that such actions displayed a complete lack of 
understanding of the petitioner's type of business. Counsel contends CIS mischaracterized the petitioner's 
financial status in that the petitioner's 2001 corporate tax return shows total company assets in the amount of 
$579,559.00, and total sales for 2001 in the amount of $77,245.00. Counsel further contends the beneficiary's 
salary is being paid by the foreign entity. Counsel also contends that the Oriental and Persian rug markets 
were adversely affected by recent trends in the economy and world politics. Counsel asserts that the 1986 
U.S. trade embargo against importing rugs from Iran and the events of September 11, 2001, detrimentally 
affected the petitioner's business. Counsel also asserts that the petitioner sold mainly Oriental rugs until the 
1986 trade embargo was lifted in 2000, and that the company is now experiencing an upward spiral. Counsel 
asserts CIS was incorrect in its characterization of the beneficiary, and reiterates the beneficiary's job duties. 
Counsel asserts that the U.S. entity's organizational chart shows that the beneficiary directs the management 
of the company and makes the decisions involving company policy and goals. Counsel further asserts the 
beneficiary does not intend to perform any of the duties that he will supervise, and that as president he hires 
workers on an "as needed" basis to perform such tasks. Counsel also asserts the beneficiary will be hiring 
workers for permanent positions. Counsel concludes by stating: "The Service failed to make a reasonable 
review of petitioner's business in light of economic conditions, and failed to conclude that the current 
employee structure was necessary and justified in order to keep the company in operating [sic] while the 
economy recovers." 
Counsel's assertions are not persuasive. 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. 3 214.2(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 actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The definitions of 
executive and managerial capacity have two parts. First, the petitioner must show that the beneficiary 
performs the high level responsibilities that are specified in the definitions. Second, the petitioner must prove 
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 
(9" Cir. July 30, 1991). In the instant matter, counsel asserts that the beneficiary is employed by the U.S. 
entity in a managerial or executive capacity in that he is responsible for overseeing the operation of the 
company, and hires and supervises lower level subordinates on a temporary or "as needed basis. However, 
there is nothing in the record to substantiate this claim. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
WAC 03 150 53744 
Page 6 
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). The record demonstrates that the U.S. 
entity was established in 1997 and that the beneficiary is the sole employee. It appears from the evidence that 
the beneficiary primarily performs the day-to-day duties of the organization rather than high-level 
responsibilities as specified in CIS statutes and regulations. There is insufficient evidence to show that the 
beneficiary would supervise the work of other supervisory, professional, or managerial employees who would 
relieve him from performing non-qualifying duties. 
Although the director based his decision partially on the size of the enterprise and the number of staff, the 
director did not take into consideration the reasonable needs of the enterprise. As required by section 
101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is acting 
in a managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. 
At the time of filing, the petitioner was a five-year-old import and export Oriental and Persian rug and carpet 
company that claimed a gross annual income of $77,245.00 in the year 2001. The organization employed the 
beneficiary as its president and claimed that the foreign entity was responsible for paying his salary. The 
petitioner submitted copies of the foreign entity's untranslated payroll records for 2002 to substantiate this 
claim. However, because the petitioner failed to submit certified translations of the documents, the AAO 
cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). 
Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. The AAO 
notes that the petitioner also submitted copies of IRS Form DE-6 and IRS Form 941 that demonstrated the 
U.S. entity only paid $3,600 as compensation of officers for the year 2001. The AAO also notes that the 
evidence demonstrates that the beneficiary is to be paid $500.00 weekly. Although counsel argues on appeal 
that CIS mischaracterized the petitioner's financial status through its interpretation of the entity's 2001 
income tax return, the evidence fails to demonstrate that the U.S. entity is able to remunerate the beneficiary 
for his services. Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay 
the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 
632F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 
736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 
539 F. Supp. 647 (N.D. Ill. 19821, afd, 703 F.2d 571 (7th Cir. 1983). In this matter, the petitioner also 
failed to submit evidence that demonstrated it employed any subordinate staff members who would perform 
the actual day-to-day, non-managerial operational duties of the U.S. entity. Based on the petitioner's 
representations, it does not appear that the reasonable needs of the petitioning company might plausibly be 
met by the services of the beneficiary as president. Regardless, the reasonable needs of the petitioner serve 
only as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or executive 
duties. The petitioner must still establish that the beneficiary is to be employed in the United States in a 
primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. 
On review, the petitioner has 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 directing the organization, setting the goals and policies of the organization, 
overseeing the marketing of the business, and approving new advertising campaigns. The petitioner did not, 
however, define the beneficiary's goals, policies, or clarify who actually performs the marketing and 
advertising tasks of the U.S. entity. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Crr3 of 
WAC 03 150 53744 
Page 7 
California, supra. at 190. 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 (E.D.N.Y. 1989), aff'd, 
905 F.2d 41 (2d. Cir. 1990). 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 
8 U.S.C. 3 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as directing and overseeing 
the entire operation of the organization, establishing goals and policies of the organization, and exercising 
sole discretionary decision-making. However, conclusory assertions regarding the beneficiary's employment 
capacity are not sufficient to meet the petitioner's burden of proof. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. 724 F. Supp. at 
1108; Avyr Associates lnc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In addition, the petitioner describes the beneficiary as marketing the petitioner's product. Since the 
beneficiary actually markets the petitioner's product, he is performing a task necessary to provide a service or 
product and this duty will not be considered managerial or executive in nature. 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). 
In the instant matter, the evidence shows that the petitioner had been doing business in the United States for 
more than one year prior to the filing of the instant petition. Therefore, it will not be considered a new office 
pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(F) for purposes of evaluating the beneficiary's position in the U.S. entity. 
Counsel indicates that the petitioner plans to hire "as needed" and permanent employees in the future. 
However, the petitioner must establish eligibility at the time of filing the nonirnrnigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornm. 1978). Furthermore, 
8 C.F.R. § 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 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. 
Counsel contends that due to world politics, the economic embargo against the import of Persian rugs from 
Iran in 1986, and the tragic events of September 11, 2001, the U.S. Company suffered a loss and is just now 
beginning to reestablish its enterprise. Counsel also asserts that the U.S. business operations had to be 
streamlined during this period in order to guarantee the business's survival. Although counsel asserts that 
economic and political factors stagnated the U.S. entity's growth, there has been no direct evidence submitted 
to substantiate this claim. Without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. The 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. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Further, world politics and international economic 
conditions cannot be used as a substitute for the statutory and regulatory requirements to establish eligibility. 
In the instant matter, the evidence demonstrates that the petitioner has not reached the point that it can employ 
the beneficiary in a predominantly managerial or executive position. Accordingly, the appeal will be 
dismissed. 
WAC 03 150 53744 
Page 8 
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. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.