dismissed L-1A Case: Sales

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
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U.S. Citizenship ., %; P2. 3? 
, @%%, and Immigration 
FILE: EAC 03 093 5 1 195 OFFICE: VERMONT SERVICE CE&ER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 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. 
1gobeI-t P Wiernann, Director 
Administrative Appeals Office 
www. uscis.gov 
EAC 03 093 51 195 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its sales manager as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
New Jersey and claims to be a subsidiary of 1- located in Pakistan. The beneficiary was 
initially granted a one-year period of stay to open a new office in the United States. The petitioner now seeks 
to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a managerial or executive capacity. 
On appeal, counsel disputes the director's findings and states that the director was inconsistent in deeming the 
petitioner a new office but failing to accord it new office treatment. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. I lOl(a)(lS)(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 regulations at 8 C.F.R. 5 214.2(1)(3) state that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(1) Evidence that the petitioner and the organization which employed or will employ 
the alien are quaIifying 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 invoIved specialized knowledge and that the alien's 
prior education, training, and employment qualifies himher to perform the 
intended services in the United States. 
Pursuant to 8 C.F.R. 2 14.2(1)(14)(ii) a visa petition under section 10 1 (a)(l5)(L) which involved the opening 
of a new office may be extended by filing a new Form 1-129, accompanied by the following: 
EAC 03 093 51 195 
Page 3 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defmed in paragraph (I)(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. 
At issue in this proceeding is whether the petitioner has established that the beneficiary would be employed in 
a managerial or executive capacity under an extended petition. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. 9 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
1. 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 empIoyees are directIy 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-today 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. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
EAC 03 093 5 1 195 
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1. 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-malung; and 
iv. receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
In support of the petition, the petitioner provided the following description of the beneficiary's job duties: 
Manages sales activities, -directs stafing [sic], training and performance evaluations to 
develop and control sales program. Coordinates sales distribution by establishng sales 
territories, and goals and advises dealers, distributors, and clients concerning sales. Analyzes 
sales statistics to formulate policy and to assist dealers in promoting sales. Previews market 
analyses to determine customer needs, price schedules, and discount rates, and develops sales 
campaings [sic] to accommodate goals of company. Prepares periodic sales report showing 
sales volume and potential sales. May direct sales for manufacturer, retail store, wholesale 
house, or other establishment. May recommend or approve budget, expenditures, and 
appropriations for research and development work. 
The petitioner also submitted a copy of Form I-797A, indicating that the petitioner's request to change the 
beneficiary's status to that of an L-1A intracompany transferee was granted on July 19, 2002 and that such 
change was effectivc as of February 1,2002 through February 1,2003. 
On February 11, 2003, the director issued a request for additional evidence. The petitioner was asked to 
supplement the record with additional information regarding the petitioner's business, as well as the 
beneficiary's specific duties, and the petitioner's organizational hierarchy. The director also noted that the 
description of the beneficiary's duties was directly obtained from the Department of Labor's Dictionary of 
Occupational Titles and that the director is, therefore, not persuaded that the description is an accurate 
representation of the beneficiary's job duties. 
The petitioner's response included a letter dated April 5 stating that the petitioner was initially incorporated in 
New York in 2001, but was subsequently moved to New Jersey. Counsel also pointed out that the beneficiary 
was initially granted L-IA status in July of 2002 and was not able to fully get the business going until the 
fourth quarter of 2002. In regard to the petitioner's organizational hierarchy counsel stated that the 
beneficiary is currently the petitioner's only employee. Counsel claimed that the beneficiary is "aggressively 
recruiting" additional employees and that he would eventually be responsible for acquiring new businesses, 
staffing and operating the chain stores, and negotiating new contracts. Despite the director's comment 
regarding the insufficiency of the beneficiary's job description, the petitioner did not provide any information 
describing the beneficiary's actual job duties in greater detail. 
On  may 21, 2003, the director denied the petition again noting that the job description initiaIly provided was 
copied, verbatim, from the Department of Labor's Dictionary of Occupational Titles, and is an unlikely 
EAC 03 093 51 195 
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reflection of the beneficiary's actual daily activity. The director noted that the petitioner's claim to having 
submitted a percentage breakdown of the beneficiary's duties is unsubstantiated by the evidence of record and 
ultimately concluded that the petitioner failed to establish that the beneficiary would primarily perform 
managerial or executive duties. 
?%e director also noted that the initial petition requesting L-IA status to open a new office was actually 
granted in July of 2002 and that the beneficiary, therefore, did not actually have one full year as an L-1A 
intracompany transferee. Counsel also points out this fact in the appellate brief. However, according to 
Citizenship and Immigration Service's (CIS) records, the beneficiary initially entered the United States on 
July 30, 2001 as a B-2 visitor for pleasure and that such status expired on January 30, 2002. The records 
further indicate that the petitioner filed the initial L-1A petition on April 16,2002, after the benehciary's B-2 
status had already expired, and that without the retroactive effect of the L-1A status the beneficiary would 
have commenced accruing unlawful status as of February 1, 2002. Therefore, while the director erred in 
backdating the beneficiary's L-1 A status to February 1, 2002, such retroactivity was apparently requested by 
the petitioner and benefited the beneficiary by preventing him from accruing unlawful status in the United 
States. Since it was the petitioner's wish to have the beneficiary's L-IA status take effect retroactively as of 
February 1, 2002, the petitioner will now be treated as a new office of which the beneficiary took charge on 
the date his status became effective. Consequently, the petitioner must be considered a new office, which has 
been operating for one year and now seeks to extend the beneficiary's stay. 
On appeal, counsel asserts that the beneficiary did not have one full year as an L-IA nonimmigrant in which 
to get the petitioner's business sufficiently off the ground. He further claims that the petitioner is a new 
business and should be considered in light of this classification. However, as discussed above, due to the 
retroactivity of the beneficiary's L-ZA status, the petitioning business will be considered as having functioned 
since February 1, 2002. Consequently, the petitioner cannot be deemed a new office, which has operated for 
less than one year. Rather, the instant petition must be considered pursuant to the regulation at 8 C.F.R. 9 
214.2(1)(14)(ii), which specifically applies to a visa petition under section 10 1 (a)(15)(L) which involved the 
opening of a new office and where the petitioner subsequently seeks to extend the beneficiary's period of 
employment. Therefore, while the petitioner submits evidence on appeal to show that it conducted business 
in April and May of 2003, the petitioner's description of the beneficiary's job duties is key to determining 
whether the beneficiary would be employed in a managerial or executive capacity. See 8 C.F.R. 
5 214.2(1)(3)(ii). In the instant case, the petitioner was informed several times that the petitioner's description 
of the beneficiary's job duties was copied, verbatim, fiom the Department of Labor's Dictionary of 
Occupational Titles, and is, therefore, an unlikely reflection of the beneficiary's actual daily activity. The 
petitioner was also asked to submit a percentage breakdown of the beneficiary's proposed duties. While the 
petitioner claimed that this information was submitted, the record does not support this claim. It is noted that 
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 Calfornia, 14 I&N Dec. 190 (Reg. Comm. 
1972). Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. 5 103.2(b)(14). The petitioner made several statements regarding its plans to 
hire more employees and acquire additional stores to make part of its chain, which would be run by the 
beneficiary. However, 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 ofMichelin Tire Cop., 17 I&N Dec. 248 (Reg. Comm. 1978). 
EAC 03 093 51 195 
Page 6 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary would 
be employed in a managerial or executive capacity. The petitioner did not provide a comprehensive 
description of the beneficiary's routine duties. Therefore, the AAO cannot affirmatively conclude that the 
beneficiary wouId primariIy perform qualifying duties on a daily basis. The record indicates that at the 
present time a preponderance of the beneficiary's duties would be directly providing the services of the 
business. However, 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). The petitioner has not demonstrated that the 
beneficiary would be primarily supervising a subordinate staff of professional, managerial, or supervisory 
personnel, or that he would otherwise be relieved from performing non-qualifying duties. The petitioner has 
not demonstrated that it has reached a level of organizational complexity wherein the hiringlfiring of 
personnel, discretionary decision-making, and setting company goals and policies constitute significant 
components of the duties performed on a day-to-day basis. Based on the evidence furnished, it cannot be 
found that the beneficiary has been or wiIl be employed primarily in a qualifyng managerial or executive 
capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner has 
been engaged in the regular, systematic, and continuous provision of goods and/or services in the United 
States and abroad pursuant to 8 C.F.R. 9 214.2(1)(l)(ii)(H). The evidence in the record consists of a number 
of documents that show business activity having taken place in April and May of 2003. However, the 
beneficiary's L-1A status was granted as of February 1, 2002. Therefore, the petitioner must show that 
business activity was taking place as of that date. The record does not contain this crucial evidence. 
Therefore, the AAO cannot conclude that the petitioner had been doing business for the requisite one-year 
period prior to filing the petition to extend the beneficiary's employment. 
It is noted that 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, hzc. 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 
AAO reviews appeals on a de novo basis). As such, due to the additional grounds discussed in the above 
paragraph, this petinon cannot be approved. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.