dismissed L-1A Case: Sales

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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: SRC 02 257 50721 Office: TEXAS SERVICE CENTER Date: AUG 1 1 2003 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
Administrative Appeals Office 
D 
SRC 02 257 50721 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Texas 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 incorporated in 2001 and 
;ales busjness. The petitioner claims that the U.S. entity is an 
The petitioner declares four employees and $250,000.00 
its authorization to temporarily employ the beneficiary 
in the United States as president for three additional years, at a yearly salary of $18,000.00. The director 
determined that the petitioner had not submitted sufficient evidence to demonstrate that the beneficiary would 
be employed primarily in a managerial or executive capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties 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. 3 214.2(1)(l)(ii) states, in part: 
Zntracompany 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 fm 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. 3 214.2(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 (l)(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 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 
SRC 02 257 50721 
Page 3 
prior education, training, and employment qualifies hirnjher to perform the 
intended services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. 3 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) 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 capacity; 
and 
E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the petitioner has established that the beneficiary will be employed in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1101(a)(44)(A), provides: 
The term "managerial capacity" means 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 
SRC 02 257 50721 
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the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
6) 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 101(a)(44)(C) of the Act, 8 U.S.C. 5 1 101 (a)(44)(C), provides: 
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 described the beneficiary's proposed job duties as: 
The beneficiary will continue to be employed as the president of the petitioner, and will 
continue to be responsible for performing the following duties; setting and establishing the 
company's goals and objectives; reviewing locations for the establishment of additional retail 
outlets; reviewing and analyzing market conditions; reviewing and approving budgets; 
directing and managing the company; reviewing and approving inventory orders prepared by 
subordinate staff; reviewing and approving marketing strategy; establishing sales and 
marketing goals and overseeing implementation of such goals; supervising and controlling 
work of subordinate managers and supervisors; hiring managers and supervisors; and 
reviewing financial records prepared by professional staff. 
In response to the director's request for evidence, the petitioner reiterated the beneficiary's proposed 
responsibilities and listed the position descriptions of the subordinates as: 
SHAKEEL ALI, MANAGER 
Duties Include: bookkeeping; accounting; banking; handling customer complaints; 
supervising subordinate employees; writing checks; preparing employee work schedule; 
SRC 02 257 50721 
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preparing maintaining inventory report; prepare sales report; and assist in preparing budget 
and expense reports. 
BADRUDDIN KAREDIA, SALES REPRESENTATIVEIASSISTANT MANAGER 
Duties Include: selling the products and assisting customers; ordering the products; stocking 
the shelves; maintaining the premises; operating the cash register and credit card machine; 
and reconciling daily cash with sales receipts. 
ZAHIR MONIN, SALES REPRESENTATIVEIASSISTANT MANAGER 
Duties Include: selling the products; ordering the products; stocking the shelves; maintaining 
the premises; operating the cash register and credit card machine; and reconciling daily cash 
with sales receipts. 
The petitioner submitted a copy of petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return for 
the quarter ending September 30,2002. 
The director determined that the petitioner had failed to submit sufficient evidence to establish that the 
beneficiary would be performing job duties in a primarily managerial or executive capacity. The director 
noted that there had been no evidence submitted to demonstrate that the beneficiary managed or directed the 
management of a department, subdivision, function or component of the organization. The director also noted 
that the petitioner had failed to show that the beneficiary would be involved in the supervision and control of 
the work of other supervisory, professional, or managerial employees who would relieve the beneficiary from 
performing the non-qualifying duties of the organization. The director stated that it appeared that the majority 
of the beneficiary's work time would be spent performing non-managerial, day-to-day operations of the 
business. The director noted that it was unrealistic for a corporation to employ half of its workers in a strictly 
executive and/or managerial capacity. 
On appeal, counsel argues that the evidence has established that the beneficiary is responsible for overseeing 
the management of the petitioner's retail location as well as managing the wholesale distribution of telephone 
cards. Counsel further argues that the beneficiary is responsible for establishing company goals and 
objectives, reviewing and analyzing the telecommunication card markets, establishing the marketing 
component of the petitioner's operations, and distributing on contracts executed by the petitioner. The 
petitioner submits as evidence on appeal a copy of a phone card distribution contract, dated November 1, 
2002, its IRS Form 941 for the quarter ending December 31, 2002, and Cosmos Novelties & Cornrn. bank 
account statements. 
The record as presently constituted is not persuasive in demonstrating that the beneficiary will be employed in 
a primarily managerial or executive capacity. When examining the managerial or executive capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the beneficiary's 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 petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that some of the duties of the position entail 
executive responsibilities, while other duties are managerial. A beneficiary may not claim to be employed as 
a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. In this matter, the 
petitioner has failed to submit evidence sufficient to demonstrate that the beneficiary's duties are either 
primarily managerial or primarily executive in nature. 
SRC 02 257 50721 
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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: "setting and establishing company's goals and objectives; reviewing and 
analyzing market conditions; directing and managing the company . . . ." 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). 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. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff d, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner claims that the beneficiary oversees and manages the petitioner's retail location and the 
wholesale distribution of telephone cards. The petitioner also contends that the beneficiary is responsible for 
the marketing division of the operation. The petitioner listed- a manager and two sales 
representatives/assistant managers as being under the direction of the beneficiary. There is no evidence to 
show that the three subordinates perform the non-managerial functions of the organization sufficiently to relieve 
the beneficiary from performing such duties. In addition, there is insufficient evidence contained in the record 
to show the percentage of time taken to perform each task. It appears from the record that the beneficiary is 
and will be primarily performing the functions of the organization rather than managing the same. The AAO 
notes that 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. 593,597 (Comm. 1988). 
The petitioner fails to document what proportion of the beneficiary's duties would be managerial functions 
and what proportion would be non-managerial. The petitioner lists the beneficiary's duties as managerial or 
executive, but it fails to quantify the time the beneficiary will spend on them. This failure of documentation is 
important because several of the beneficiary's daily tasks, such as marketing the petitioner's product and 
negotiating contracts, 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 function 
manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Although the petitioner asserts that the beneficiary will be managing a subordinate staff, the record does not 
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See 
section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
professional. Section lOl(a)(44)(A)(iv) of the Act. Because the beneficiary is primarily supervising a staff of 
non-professional employees, the beneficiary cannot be deemed to be primarily acting in a managerial 
capacity. 
The record also contains inconsistencies with regard to the number of employees employed by the U.S. entity. 
In the petition and the letter of support of the petition, the petitioner states that the U.S. entity employed four 
individuals. On appeal, the petitioner submits IRS Form 941 for the quarter ending December 31, 2002, and 
states that the U.S. entity employs seven individuals. The petitioner has failed to provide an explanation for 
the discrepancies in the number of employees employed by the U.S. entity. 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 eligible under a new set of facts. Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The petitioner has failed to submit sufficient evidence to 
establish that the beneficiary would be employed in a primarily managerial or executive capacity. For this 
reason, the petition may not be approved. 
SRC 02 257 50721 
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Beyond the decision of the director, with the minimal financial and business documentation submitted by the 
petitioner with respect to the foreign entity, it is questionable whether a qualifying relationship continues to 
exist between the petitioning entity and a foreign entity pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). The 
petitioner indicated that the beneficiary was the sole proprietor of both the U.S. and foreign entities. In this 
matter, the petitioner has not persuasively demonstrated that the foreign entity will continue doing business 
during the alien's stay in the United States. For this additional reason, the petition may not be approved. 
The petitioner indicates that the beneficiary is the sole owner of both the U.S. and foreign entities. If this fact 
is established, it remains to be determined that the beneficiary's services are for a temporary period. The 
regulation at 8 C.F.R. 5 214.2(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 the absence of persuasive evidence, it cannot be concluded 
that the beneficiary's services are to be used temporarily or that he will be transferred to an assignment abroad 
upon completion of his services in the United States. For this additional reason, the petition may not be 
approved. 
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.