dismissed L-1A Case: Sewing Contractor

mtif@g data deleted to 
t -y unwarranted 
lzzL,ormP- 
U.S. Department of Homcland Securitj 
20 Mass AVC , N W . RIII A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: , WAC 03 122 5 1673 . Office: CALIFORNIA SERVICE CENTER Date: bpR 0 ,m 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section I Ol(a)(l5)(L) of the Immigration 
, and Nationality Act, 8 U.S.C. 8 1 IOl(a)(15)(L) 
ON BEHALF OF PETI'TIONER: 
INSTRUCTIONS: 
Thls 1s the dec~slon of the Administrat~ve Appeals Office In your case. All documents have been returned to 
the office that orlglnally dec~ded your case. Any further inqully must be made to that office. 
> 
WAC 03 122 51673 
Page 2 
DISCUSSION: The Director, California 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 filed this nonimrnigrant petition seeking to extend the employment of its chief executive 
officer-president as an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 15)(L) of the . 
Immigration and Nationality Act, 8 U.S.C. tj 1101(a)(15)(L). The petitioner is a corporation organized in the 
State of California that is operating as a sewing contractor. It claims that it is a branch of the beneficiary's 
foreign employer, located in Calcutta, India. The petitioner seeks to employ the beneficiary for an additional 
three years. 
The- director denied the petition concluding that the petitioner had failed to establish that the beneficiary 
would be employed.by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel contends that although the benefic~ary need only quahfy as both a manager and an 
execut~ve, "the pet~tion should be granted under both the managenal and executive capaclty categories." 
Counsel subm~ts a bnef In support of the cla~m that the beneficiary would be employed In both qual~fy~ng 
capacltles. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined ii section 101(a)(15)(L) of the Act, 8 
U.S.C. 5 1101(a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. 
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. 
I 
The regulation at 8 C.F.R. 214.2(1)(3) states that an Individual petit~on 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 prior education, 
training, and employment qualifies himher 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 perfonned abroad. 
The regulation at 8 C.F.R. 4 214.2(1)(14)(ii) also provides that a visa petition, wh~ch ~nvolved the opening of a 
new office, may be extendcd by filing a new Form 1-129, accompanied by the following: 
WAC 03 122 51673 
Page 3 
(A) Evidence that the United States and foreign entities are still qualifying organizations as 
defined in paragraph (l)( 1 )(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 dut~es 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 management or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in the instant matter is whether the beneficiary would 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. 9 1 10l(a)(44)(A), provides: 
The term "managenal capacity" means an assignment within an organizat~on in whlch the employee 
pr~manly- 
(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 withn the organization, or a department or 
subdivision of the organization; 
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is'directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the hnction 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 10l(a)(44)(B) of the Act, 8 U.S.C. 5 1 10l(a)(44)(B), provides: 
The term "executive capac~ty" means an assignment with~n an organizat~on In which the employee 
pnmanly- 
WAC 03 122 51673 
Page 4 
(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. 
The petitioner filed the nonimmigrant petition on March 7, 2003, noting that as chief executive offics 
president, the beneficiary would be responsible for the day-to-day operations of the company, including hiri 
personnel for production and sales, introducing the petitioning organization to manufacturers in order 
create a corporate presence in the United States. and overseeing the company's floor manager, who 
responsible for supervising the labor force. In an attached letter from the foreign entity, dated March 5, 20( 
the director of the organization stated that the beneficiary is the ideal candidate for the proposed positi 
because of his long association and experience with the foreign organization. The director explained that 1 
beneficiary would be responsible for expanding the petitioner's customer base, increasing sales volume, hiri 
employees, and overseeing the import-txport operations. While the petitioner submitted employee payr 
records with the petition, the records are dated March 2002, one year prior to the filing of the instant petiti~ 
when the company employed fifteen workers. It is unclear whether any of the employee records pertain to ' 
seven workers presently employed by the petitioner. 
The director issued a request for evidence on April 14, 2003 requesting that the petitioner submit 
following: (1) an organizational chart describing the managerial and personnel levels of the U.S. compa: 
and clearly identifying the beneficiary's position in ;elation to all other employees of the company; (2) a br 
description of the job duties performed by the beneficiary's subordinate employees, and each worker's nar 
job title, educational level.and wages; (3) a list of the petitioner's employees from the date of establishml 
until the present, including names, job titles, social security numbers, and dated of employment; and, (4 
detailed description of the job duties to be pe;formed by the beneficiary including evidence that 
beneficiary satisfies the qualifications for the position. 
Counsel responded in a letter dated July 15, 2003, and submitted an organizational chart identifying 
beneficiary as the president. The beneficiary's subordinate employees were identified as the fl( 
managerlsewer and four lower-level sewers. The petitioner stated on the chart that as the president, 
beneficiary is responsible for the "day-to-day operation" of the company, "expand[ingJ the compan 
market," "supervise[ing] employees," and "mak[ing] inroads with American manufacturers." The petitiol 
noted that the floor manager reports directly to the beneficiary and is responsible for the production 
garments and for supervising the sewers. The petitioner further noted that the reports only to 
board of directors in India. 
In an attached statement, the petitioner explained that the beneficiary spends 50 percent of his ti 
performing sales activities, such as maintaining current customers and obtaining new accounts, 25 percent 
his time performing the administration and financial aspects of the business, and the remaining 25 percent 
time on daily activities and supervising the company's production. The petitioner stated that the beneficiaq 
WAC 03 122 51673 
Page 5 
an ideal candidate for the position of chief executive officer-president because of his business background an 
advanced knowledge of the English language. 
In a decision dated August 21, 2003, the director determined that the petitioner did not demonstrate that tk 
beneficiary would be employed in the United States in a primarily managerial or executive capacity. Tl 
director outlined the proposed job duties for the beneficiary, and stated that "[tlhere is no indication that tl 
beneficiary will exercise significant authority over generalized policy or that the beneficiary's duties will 1 
primarily managerial or executive in nature." Consequently, the director denied the petition. 
In an appeal filed on September 19, 2003, counsel claims that the petition should be approved as 11 
beneficiary qualifies as both as manager and an executive. Counsel outlines the four regulatory requiremen 
for both managerial capacity and executive capacity and states: 
The record demonstrates the beneficiary's job duties involve the exclusive management of 
sales, an essential function of the foreign organization among other duties associated with the 
position of the President and CEO. He makes decisions about the extent of sales expansion in 
the U.S. and production commitments. He serves as a liaison with customers. He reports 
directly to the Board of Directors of the Parent Company in India. He enjoys unfrettered [sic] 
discretionary authority for the U.S. operations. The company has a floor manager who 
reports directly'to the Beneficiary. The position of the Floor Manager involves production in 
its entirety, including hiring and firing of sewers and other production staff and supervising 
them. The position of a Floor Manager is a professional position requiring a bachelors degree 
or number of years of professional experience. [The beneficiary] has the authority to hire and 
fire the Floor Manager. The Beneficiary exercises exclusive authority over generalized 
. policy of U.S. operations and'the Beneficiary's duties are primarily managerial and executive 
in nature. The financial investment in the U.S. subsidiary will suffer irreparably unless the 
L-1 is extended. 
The first element [of executive capacity] is satisfied based on Petitioner's statement regarding 
the beneficiary's proposed job duties, namely that the Beneficiary will serve as the President 
and CEO of the U.S. Subsidiary with duties commensurate with the title. Beneficiary will 
supervise Petitioner's day to day [sic] business affairs, and Beneficiary has the authority to 
hire, fire and promote the staff. The U.S. entity is a major component of the organization and 
the Beneficiary directs the management of this major component. 
The second element to demonstrate "executive capacity" is that the Beneficiary establishes 
the goals and policies of the organization. The record verifies that the Beneficiary establishes 
the goals and policies of [the petitioning organization], which is the U.S. entity in terms of 
sales and matching production. Thus, it is apparent that the Beneficiary does in fact establish 
the goals and policies of the organization. 
Third, the record demonstrates that the Beneficiary has wide latitude in discretionary decision 
making. In fact his word is the last word for the U.S. operations. The Beneficiary has 
authority to be involved in all personnel matters, and his job duties involve the supervision of 
WAC 03 122 51673 
Page 6 
the Floor Manager of the U.S. entity. The position of the Floor Manager is itself a 
professional position. As evidenced by the record, it is clear that the Beneficiary meets the 
third requirement to demonstrate executive capacity. 
Fourth, the Beneficiary reports directly to the Board of Directors of the Parent Company in 
India. He is the Head of the organization in the U.S. He receives virtually no supervision in 
the U.S. He, therefore satisfies this criteria. . . . 
Counsel requests that the instant petition be "adjudicate[dJ . . . based on the totality of the business operation 
and the gross revenues of the company achieved in the short span of time while [the] Beneficiary has acted i 
an executive capacity." Counsel states that the petitioner has demonstrated a "track record of sales" totalin 
approximately $190,000. 
On review, the petitioner has not established that the beneficiary would be employed by the United Stat< 
entity in a primarily managerial or executive capacity. When a new business is established and commenct 
operations, the regulations recognize that a designated ,manager or executive responsible for setting L 
operations will be engaged in a variety of activities not normally performed by employees at the executive I 
managerial level and that often the full range of managerial responsibility cannot be performed. Tl 
regulation at 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the intended United States operation one year within the da 
of approval of the petition to support an executive or managerial position. In order to qualify for an extensic 
of L-1 nonimmigrant classification under a petition involving a new office, the petitioner must demonstra 
through evidence, such as a description of both the beneficiary's job duties and the staffing of t' 
organization, that the beneficiary will be employed in a primarily managerial or executive capacity. There 
no provision in Citizenship and Immigration- Services (CIS) regulations that allows for an extensidn of tl 
one-year period. If the business is not sufficiently operational after one year, the petitioner is ineligible 
regulation for an extension. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to t 
petitioner's description of the job duties. See 8 C.F.R. 9 214.2(1)(3)(ii). As required in the regulations, 1 
petitioner must submit a detailed description of the executive or managerial services to be performed by 1 
'beneficiary. Id. 
The petitioner has provided a vague and nonspecific description of the beneficiary's job duties that fails 
demonstrate what the beneficiary would do on a daily basis under the extended petition. For example, 
petitioner states that the beneficiary would be responsible for increasing sales volume, overseeing the compan 
import and export operations, and making "inroads" with manufacturers. The petitioner does not, howei 
define the specific tasks associated with each responsibility. Specifics are clearly an important indication 
whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting 
definitions would simply be a matter of reiterating the regulations. Feriin Bros. Co.. Ltd. v. Srtva, 724 
Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Moreover, counsel's descriptions on appea 
the beneficiary's managerial and executive job duties are merely a recitation of the definitions of managerial i 
executive capacity. Conclusory assertions regarding the beneficiary's employment capacity are not sufficic 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of prc 
Fedin Bros. Co.. Ltd. v. Sul~a, 724 F. Supp. at 1108; Acyr  associate.^. Inc. v. Meissuer, 1997 WL 188942 at 
(S.D.N.Y.). 
WAC 03 122 51673 
Page 7 
The record also fails to demonstrate that the beneficiary would spend the majority of his time performing in a 
qualifying capacity. Counsel noted in his response to the director's request for evidence that the beneficiar) 
would spend 50 percent of his time performing sales activities for the company, including contacting an( 
obtaining customers, and 25 percent of his time performing the administrative and financial operations of thc 
business. Clearly, the majority, or 75 percent, of the beneficiary's time would therefore be devoted tc 
performing non-qualifying functions of the petitioner's business. 'The AAO notes that an employee whc 
primarily performs the tasks necessary to produce a product or to provide services is not considered to b 
employed in a managerial or executive capacity. Matter of Clzurch Scietztolog)~ I)iternational, 19 I&N Dec 
593, 604 (Comm. 1988). The record does not support the petitioner's claim that the beneficiary would b 
primarily managing the business and supervising the activities of the floor manager. The petitioner has faile 
to prove that the beneficiary primarily performs high-level managerial and executive responsibilities and doe 
not spend a majority of his or her time on day-to-day functions. See Charnpiorl World, Inc. v. INS, 940 F.2 
1533 (Table), 1991 ~9th ~ir. July 30, 1991). 
Counsel recognizes on appeal that the beneficiary need only qualify as either a manager or an executive, b~ 
claims that the beneficiary would be employed in both a managerial and executive capacity. If a petitioner 
claiming to employ the beneficiary as both a manager and an executive, the petitioner must establish that 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the statuto 
definition for manager. Based on the foregoing discussion, the petitioner has failed to satisfy th 
requirement. The petitioner has not established that the beneficiary would be employed in a primari 
managerial or executive capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the record does not support the petitioner's claim that it is a branch oft 
beneficiary's foreign employer. The regulations define the term "branch" as "an operating division or offi 
of the same organization housed in a different location." 8 C.F.R. 5 214.2(1)(l)(ii)(J). CIS has recobmized tk 
the branch office of a foreign corporation may file a nonimmigrant petition for an intracompany transferc 
see Matter of KLoetti, 18 I&N Dec. 295 (Reg. Comm. 1981); Matter of Leblanc, 13 I&N Dec. 816 (Rc 
Comm. 1971); Matter of Schick, 13 I&N Dec. 647 (Reg. Comm. 1970); see also Mutter of Penner, 18 I8 
Dec. 49, 54 (Comm. 1982)(stating that a Canadian corporation may not petition for L-1B employees who i 
directly employed by the Canadian office rather than a United States office). When a foreign compa 
establishes a branch in the United States, that branch is bound to the parent company through comrr 
ownership and management. A branch that is authorized to do business under United States law becomes. 
effect, part of the national industry. Matter of Schick, 13 I&N Dec. at 649-50. 
Probative evidence of a branch office would include the following: a state business license establishing t 
the foreign corporation is authorized to engage in business activities in the United States; copies of Inter 
Revenue Service (RS) Form 1120-F, U.S. Income Tax Return of a Foreign Corporation; copies IRS Fc 
94 1, Employer's Quarterly Federal Tax Return, listing the branch office as the employer; copies of'a lease 
office space in the United States; and finally, any state tax forms that demonstrate that the petitioner i 
branch office of a foreign entity. 
If the petitioner submits evidence to show that it is incorporated in the United States, then that entity will 
qualify as. "an . . . office of the same organization housed in a different location," since that corporation 
distinct legal entity separate and apart from the foreign organization. See Matter of M, 8 I&N Dec. 24, 
(BLA 1958, AG 1958); Mutter of Aphrodite Itzvestments Limited, 17 I&N Dec. 530 (Comm. 1980); and Ma 
of Tessel, 17 I&N Dec. 63 1 (Act. Assoc. Comm. 1980). Here, the petitioner provided a copy of its article 
WAC 03 122 51673 
Page 8 
incorporation reflecting its establishment as 'a separate company in the United States. Therefore? 
petitioning organization cannot be deemed a branch of the beneficiary's foreign employer. 
If the claimed branch is incorporated in the United States,' CIS must examine the ownership and contro 
that corporation to determine whether it qualifies as a subsidiary or affiliate of the overseas employer. 
petitioner submits three stock certificates reflecting the distribution of stock ownership in the petition 
organization, and specifically the foreign entity's ownership of 90 percent of the stock issued by the Uni 
States company. However, the petitioner's 2002 corporate income tax return is inconsistent with 
suggested ownership. The petitioner failed to indicate on Schedule K of the tax return that an individual 
foreign corporation owns the petitioner's stock. Moreover, Schedule L also fails to identify any value 
common stock issued by the organization. It is incumbent upon the petitioner to resolve any inconsistenc 
in the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies v 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Muf 
ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). As a result of these discrepancies, the AAO cannot conclu 
that the petitioner has demonstrated the existence of a qualifying relationship between the two organizatioi 
For this additional reason, the appeal will be.dismissed. 
An additional issue not addressed by the director is the fact that the record reflects that the U.S. entity did n 
secure a commercial lease until December 13,2002, nearly nine months after the approval of the original nc 
office petition. The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(A) requires a petitioner that seeks to opena ne 
office to submit evidence'that it has acquired sufficient physical premises to commence doing business. 
the present matter, either the petitioner did not comply with this requirement, misrepresented that they hi 
complied, or the director committed gross error in approving the petition without evidence of the petitionel 
physical premises. Regardless, the approval of the initial petition may be subject to revocation based on tl 
evidence submitted with this petition. See 8 C.F.R. tj 214.2(1)(9)(iii). For this additional reason, the petitic 
may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied b 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. Se 
Spencer Enterprises. Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 68 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO review 
appeals on a de novn basis). 
Ln visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with thc 
petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has not been met. Accordingly, thc 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.