dismissed L-1A Case: Shoe Wholesale

identifying data deleted to 
prevent clearly unwarranted 
invasion of' personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 176 50201 Office: CALIFORNIA SERVICE CENTER Date: JUN 1 3 2QQ5 
PETRION: Petition for a Nonimmigrant Worker ~ursujnt to Section IOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETJTIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in y ur case. All documents have been returned to 
the office that originally decided your case. Any further inqu I' ry must be made to that office. 
?/I Robert P. Wiemann, Director 
1 Administrative Appeals Office 
WAC 03 176 50201 
Page 2 
DISCUSSION: The nonirnmigrant 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 incorporated in 2002 and 
claims to be engaged in the im~ort and wholesale of women's shoes. The petitioner claims that the U.S. 
entity is a subzd;ary ofocated in indonesia. It seeks to extend its 
authorization to employ the beneficiary temporarily in the United States as its general manager for a period of 
two years, at an annual salary of $50,000.00. The director determined that the petitioner had not submitted 
sufficient evidence to demonstrate that the beneficiary would be employed by the U.S. entity primarily in a 
managerial or executive capacity. The beneficiary was initially granted a one-year period to open a new 
office in the United States and the petitioner now seeks to extend the beneficiary's stay. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties have 
been and will continue to be managerial or executive in nature. 
To establish L-1 eligibility under section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 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. 5 214.2(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 (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 with 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 hirnlher to perform the intended serves 
WAC 03 176 50201 
Page 3 
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. 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 the supervisor's supervisory duties unless the 
employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(;> 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 initially stated in the petition that the beneficiary would be responsible for executing business 
goals and policies as set by the board, developing a U.S.-based business network, representing the foreign 
WAC 03 176 50201 
Page 4 
entity in contract negotiations, and supervising department heads and other employees. The petitioner 
submitted a copy of the U.S. entity's IRS Form 1120 for the year 2002. In a letter of support, dated May 15, 
2003, the petitioner described the beneficiary' s duties as: 
Execute business goals and policies as set by the board 
[The beneficiary] will be responsible for implementation of our strategy of increasing 
US sales, such as marketing, trade show, promotions, etc.; 
[The beneficiary] will be responsible for the acquisition of larger facility [sic], 
including warehouse facility [sic] for our US subsidiary; 
[The beneficiary] will spend approximately 35% of his time on these duties. 
Continue to develop US business network [sic], represent parent company in contract 
negotiation[s] 
[The beneficiary] will continue to develop business contacts and to establish 
additional sales; 
[The beneficiary] will represent our company at all contract negotiations and pricing 
structures; 
Marketing services: order processing, sampling, customization/packaging, and 
brochure design for customers; 
Production planning: coordination of material purchase, production schedule, quality 
assurance, finished product, packaging customization; 
Shipping: supervise and coordinate payment arrangements, shipping schedule, 
shipping document - letter of credit, billing of lading, [sic] custom forms, certificate 
of origin, and fumigations; 
[The beneficiary] will spend 50% of his time on these duties. 
Supervise department heads and of [sic] employees (firing and hiring of staff). 
[The beneficiary] will continue to implement our staffing increase to maintain and 
create a work force sufficient to support our business; 
[The beneficiary] will spend 15% of his time on these duties. 
In response to the director's request for evidence on this subject, the petitioner submitted an organizational 
chart depicting the hierarchical structure of the U.S. entity. The chart demonstrated that the entity employed 
the beneficiary as general manager, along with a sales and accounting manager, an account representative, 
and a part-time bookkeeper. The chart also showed a warehouse manager, shipping and receiving, and 
warehouse staff positions that had not yet been filled. The petitioner also submitted Form DE-6, Quarterly 
Wage and Withholding Report for the quarters ending September 3 1, 2002, December 3 1, 2002, March 3 1, 
2003, and June 30,2003. 
The director, in denying the petition, stated that the petitioner had failed to submit sufficient evidence to 
establish that the beneficiary would be employed by the U.S. entity in a primarily managerial or executive 
capacity. The director noted that although the petitioner had stated that the beneficiary would be supervising 
executive and management personnel by the end of its first year in operation, it had failed to establish that the 
beneficiary was engaged in such supervision with the submission of the instant petition. The director also 
noted that based upon a review of the evidence it appeared that the beneficiary, rather than managing the U.S. 
entity, would be performing the day-to-day operations of the business. The director stated that based upon the 
number of employees employed by the U.S. entity, the nature of the business (import and wholesale of 
women's shoes), and the volume of sales, it was evident that the beneficiary would be involved in providing 
the entity's product. The director further stated that based upon the description of the beneficiary's job duties, 
WAC 03 176 50201 
Page 5 
if accurate, he would be primarily performing sales duties. The director also stated that the beneficiary's 
duties described as developing business contacts, contract negotiations, and marketing have not been 
demonstrated to be managerial or executive in nature. 
On appeal, counsel disagrees with the director's decision and asserts the director failed to properly apply the 
definitions of managerial and executive capacities to the facts in the instant matter. Counsel reiterates the 
beneficiary's duties described in the petition and contends that the descriptions indicate the beneficiary 
possesses significant authority over generalized policy within the U.S. entity. Counsel further contends the 
term "generalized policy" is inherently "broad and general," and therefore, complies with regulatory 
requirements. Counsel also contends that the beneficiary, as general manager, is inevitably involved in 
providing the company's product to its customers. Counsel contends that the beneficiary is involved in this 
process in that he sets goals and policies, and direction for his staff to follow. Counsel asserts the petitioner 
has a sales representative and a manager of sales and accounting to execute general and broad sales and 
marketing policies that are set forth by the beneficiary. Counsel reiterates the definition of executive capacity 
and asserts that the beneficiary's duties as an executive "largely match the requirements set forth in 
8 C.F.R. 5 214.2(1)(l)(ii)(C)." On appeal, the petitioner resubmits copies of the U.S. entity's balance sheet as 
of June 30, 2003, and Form DE-6, Quarterly Wage and Withholding Report for the quarters ending 
September 31, 2002, December 31, 2002, March 31, 2003, and June 30, 2003. The petitioner also resubmits 
copies of the letter of support, dated May 15, 2003, and letter in response to the request for evidence, dated 
July 15, 2003. The petitioner submitted a copy of an unsigned commercial lease agreement, dated July 21, 
2003. 
Counsel's assertions are not persuasive. On reviewing the petition and the evidence, the petitioner has not 
established that the beneficiary will be employed in a managerial or executive capacity. In evaluating 
whether the beneficiary will be employed in a primarily managerial or executive capacity, the AAO will look 
first to the petitioner's description of the beneficiary's job duties. See 8 C.F.R. Q 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. In the instant matter, 
the record demonstrates that the beneficiary will perform various job duties while employed by the U.S. 
entity. Although the petitioner indicates that the beneficiary will be responsible for establishing company 
goals and policies and for supervising department heads and other employees, there has been no evidence 
submitted to substantiate this claim. 
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 will spend 35 percent of his time executing business goals and policies, 50 percent of his time 
will be spent marketing products and negotiating contracts, and 15 percent of his time will be spent 
supervising department heads and other employees. The petitioner did not, however, detail the 
organization's goals and policies, nor clarify the beneficiary's duties in marketing the petitioner's products or 
in supervising department heads. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craji 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. 1103 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
WAC 03 176 50201 
Page 6 
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. 5 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as establishing and executing 
business goals and policies of the organization. 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. 
v. Sava, supra.; Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The petitioner stated that the beneficiary spends 50 percent of his time marketing the U.S. entity's products. 
In addition, the petitioner describes the beneficiary as being responsible for the U.S. entity's marketing 
services, production planning, and shipping and receiving departments. However, evidence of record does 
not demonstrate that the U.S. entity has a marketing or production department. Further, the evidence shows 
that the warehouse, shipping and receiving departments have yet to be staffed. Accordingly, it appears that 
the beneficiary would necessarily have to perform non-qualifying job duties associated with producing, 
marketing, warehousing, and shipping and receiving the petitioner's products. Since the beneficiary would 
actually have to perform such non-qualifying duties, he will be performing tasks necessary to provide a 
service or product and these duties 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 (Comrn. 1988). 
Although the petitioner asserts that the beneficiary will be managing department heads, 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 101(a)(44)(A)(iv) of the Act. In this matter, it appears the beneficiary will be 
responsible for supervising shoe assemblers and administrative staff. Because the beneficiary will be 
primarily supervising a staff of non-professional employees, the beneficiary cannot be deemed to be primarily 
acting in a managerial capacity. Likewise, it appears from the record the beneficiary will only be spending a 
fraction of his time actually performing executive duties. 
The petitioner infers throughout the record that it plans to hire additional managers and employees in the 
future. In addition, the U.S. entity's organizational chart depicts proposed employee positions. However, the 
petitioner must establish eligibility at the time of filing the nonirnmigrant 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 Carp., 17I&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 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 this 
matter, 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. 
Beyond the decision of the director, the petitioner has not established that it is eligible for an extension of the 
initial one-year "new office" validity period. As previously noted, the regulation at 8 C.F.R. 5 214.2(1)(14)(ii) 
provides strict evidentiary requirements that the petitioner must satisfy prior to the approval of this extension 
petition. Upon review, the petitioner has not satisfied all of the enumerated evidentiary requirements. 
WAC 03 176 50201 
Page 7 
Although the petitioner claims that it has acquired sufficient physical premises to house the U.S. entity, a 
review of the record demonstrates that the petitioner submitted a copy of an unsigned lease agreement for 
warehouse space, dated July 21, 2003. Counsel contends the lease agreement was submitted unsigned 
because it was still circulating for signature at the time the appeal was filed. It is noted that the petition in this 
matter was filed May 21, 2003. Therefore, the petitioner had not secured sufficient physical premises to 
house the new office pursuant to 8 C.F.R. 5 214.2(1)(3)(v)(A) at the time the instant petition was filed. 
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, lnc. v. United States, 229 F.SU~~.~"~ 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9" 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). 
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.