dismissed L-1A Case: Textile Import/Export

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: EAC 04 033 54130 Office: VERMONT SERVICE CENTER Date: nr(r 2 7 2005 
IN RE: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. tj 1101(a)(15)(L) 
IN 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. 
R bert P. Wiemann, irector e 
l~dministrative Appeals Office 
EAC 04 033 54130 
Page 2 
DISCUSSION: The Director, Vermont 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 nonimmigrant petition seeking to extend the.employment of its general 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. tj 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
New York that claims to be engaged in the import, export and distribution of textiles and miscellaneous 
merchandise. The petitioner claims that it is a branch of ocatkd in Cordoba, 
Argentina. The beneficiary was initially granted three years in L-1A classification and the petitioner now 
seeks to extend her stay for a two-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in a managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner disputes the director's 
findings and asserts that the petitioner submitted adequate descriptions of its employees' positions. Counsel 
contends that the director failed to consider that the beneficiary manages both the United States entity and the 
foreign entity, and failed to consider the reasonable needs of the petitioning company in determining whether 
the company requires the services of a manager or executive. Counsel emphasizes that the petitioner is still in 
an "initial stage of development" and has been negatively affected by the economic environment following 
September 11,2001. Counsel submits a statement attached to Form I-290B and additional evidence in support 
of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, 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 within three years preceding the beneficiary's application for admission into the United 
States. 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. 
The regulation at 8 C.F.R. tj 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. 
EAC 04 033 54130 
Page 3 
(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 performed abroad. 
The issue in this matter is whether the beneficiary will 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 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employ~e 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. 1101(a)(44)(B), defines the term "executive capacity" as 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 
EAC 04 033 54130 
Page 4 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petition was filed on November 18, 2003. On the L Classification Supplement to Form 1-129, the 
petitioner described the beneficiary's duties as: 
General supervising of the business, setting company policies, purchasing and pricing 
decisions, overseeing operations in the U.S. and Argentina, supervising general managers, 
approving or rejecting suggestions from CPAs charged with running the financinglaccount 
department. 
The petitioner indicated on Form 1-129 that it had three, employees at the time of filing, but provided no 
further description of the beneficiary's duties or the company's staffing levels. 
On February 23, 2004, the director requested additional evidence to establish that the beneficiary has been 
and will be employed in a primarily executive or managerial capacity with the U.S. company. Specifically, 
the director instructed the petitioner to submit: (lda complkte position description for all current employees in 
the United States, including one for the beneficiary's position, along with a breakdown of the number of 
hours devoted to each of the employees' job duties on a weekly basis; (2) a copy of its IRS Form 941, 
Employer's Quarterly Tax Return, for the fourth quarter of 2003; (3) if applicable, evidence pertaining to any 
independent contractors utilized by the petitioner during 2002, 2003 and 2004, including the number of 
contractors, documentation of wages paid, and the duties performed; and (4) copies of fully executed Forms I- 
9, Employment Eligibility Verification, for all employees, including copies of documentation submitted to 
establish eligibility to seek employment in the United States. 
In a response received on May 17, 2004, the petitioner submitted the following job description for the 
beneficiary: 
As a General Manager, [the beneficiary] is the general supervisor of the business. She sets up 
the company policies, makes purchasing and pricing decision. [The beneficiary] is also in 
charge of strengthening the commercial relations between the parent company, the business 
enterprises in the U.S. She makes strategic decisions to expand [the petitioner's] share in the 
U.S. and new foreign markets. She is responsible for securing office/warehouse space and 
also for hiring, firing and training personnel. 
The petitioner indicated that it employs a full-time salesman, who is responsible for visiting clients to take 
orders and collecting payments when orders are received. The petitioner also stated that it employs a full-time 
"packing" employee who is responsible for preparing orders, packaging merchandise for delivery, and 
checking merchandise when it is delivered by vendors. The petitioner submitted its IRS Form 941, 
Employer's Quarterly Federal Tax Return and New York Form NYS-45, Employer's Combined Withholding, 
Wage Report, and Unemployment Insurance Return, for the fourth quarter of 2004 confirming the 
EAC 04 033 54130 
Page 5 
employment of the three claimed employees. Finally, the petitioner submitted the requested Forms 1-9 for its 
three employees, all of which were executed in July 2003. 
On July 14, 2004, the director denied the petition concluding that the petitioner had not established that the 
beneficiary would be employed in a managerial or executive capacity. The director observed that the 
petitioner had failed to provide the requested complete position descriptions for its employees and noted that 
the beneficiary's job description does not identify the duties she performs on a day-to-day basis. The director 
further noted that upon review of the financial and other supplementary documentation submitted, the 
petitioner is not conducting business in a manner that would require the services of an individual engaged in 
primarily managerial or executive duties. 
On appeal, counsel for the petitioner asserts that the director's decision is "unreasonable and capricious." 
Counsel contends that the petitioner provided a full description for its employees' positions, noting that the 
position descriptions closely resemble those for the respective occppations in the Department of Labor's 
Standard Occupational Classification (SOC) system. Counsel further notes that the petitioner was unable to 
comply with the director's request for a breakdown of the number of hours its employees devote to their 
various duties because they do not keep "time logs." 
In addition, counsel contends that the beneficiary is responsible for managing both the U.S. company and the 
foreign entity, noting that the beneficiary receives oral reports from the foreign company's managers and 
imparts instructions to them on a weekly basis. Counsel claims: "The U.S. company is an integral part of the 
foreign company and the beneficiary's duties must be assessed in toto, not only as to the U.S. company." 
Counsel further objects to the director's finding that the U.S. company is not conducting business in a manner 
that would require the services of an employee who is primarily engaged in executive or managerial activities 
as "incorrect and unreasoned." Counsel contends that the director failed to consider that the company is in "an 
initial stage of development" and did not consider the devastating economic consequences of the terrorist 
attacks of September 11, 2001. Counsel also asserts that the beneficiary recently hired an administrative 
employee, a showroom salesperson and a packaging employee and submits evidence documenting the 
employment of the new staff. 
In support of the appeal, the petitioner submits a July 29, 2004 letter from its accountant who lists the 
beneficiary's responsibilities and accomplishm~nts as: 
Searched and negotiated new office space, increasing space from 400 square feet to 
almost 2,000 square feet. 
Successfully developed new overseas contacts that will enable the company to purchase 
its product cheaper, yet with the same quality. 
Solely responsible for the introduction of new products, packaging and all marketing 
materials. 
Solely responsible for all sales and customer relations. 
Solely responsible for all hiring, training and supervision of employees. The Company 
presently has three employees receiving payroll. 
EAC 04 033 54130 
Page 6 
Responsible for accounting - including billing and collections of all invoices, payment of 
all bills and reconciling bank balances. 
Responsible for overseeing and managing inventory levels and storage issues. 
Solely responsible for the shift in business focus that has enabled the Company to 
continue its strong growth - including importing directly from China, and focusing on 
sales within the United States, whereas, in the first few years of business the Company 
was focused on exporting product to Argentina. 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 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. $ 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 addition, 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 (9th Cir. July 30, 1991). 
The petitioner initially provided a brief and vague description of the beneficiary's duties that failed to convey 
an understanding of what types of duties she 'performs on a day-to-day basis. For example, the petitioner 
indicated that the beneficiary is responsible for "setting company policies," "general supervising of the 
business" and "overseeing operations in the U.S. and Argentina." However, the petitioner did not define the 
beneficiary's "policies," or specify what specific tasks the beneficiary performs tb "supervise" the business or 
"oversee" operations, nor did it provide any description of its operations in Argentina or explain how the 
beneficiary manages such operations from New York. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The petitioner has failed to answer a critical question in this case: What does 
the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). 
The petitioner further indicated that the beneficiary is charged with "purchasing and pricing decisions" and 
"supervising general managers." However, the petitioner does not claim to employ"genera1 managers," other 
than the beneficiary, nor does it indicate that it has lower level employees to perform routine purchasing 
functions. Going on record without supporting documentary evidence is not shfficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Crafi of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In addition, the 
petitioner indicated that the beneficiary is responsible for "approving or rejecting suggestions from CPAs 
charged with running the financinglaccount department." The petitioner did not provide evidence of 
payments to independently contracted accountants or describe the nature and scope of services they provide to 
the petitioning organization. Further, on appeal, the petitioner submits a letter from its accountant who states 
that the beneficiary is responsible for the petitioner's accounting functions, including routine administrative 
EAC 04 033 54130 
Page 7 
tasks such as billing and collections of invoices, payment of bills .and reconciling bank balances. Therefore, it 
would appear that the accountant's actual role is limited to preparing tax filings and financial statements, in 
spite of the petitioner's claim that its accountants are responsible for running a distinct department within the 
company. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 
I&N Dec. 582,591 (BIA 1988). 
Upon review of this limited job description, the director reasonably instructed the petitioner to provide a 
complete position description for the beneficiary and her subordinates, to include a breakdown of the number 
of hours devoted to each of the employees' job duties .on a weekly basis, as well as a description of any 
services provided by independent contractors. The regulation states that the petitioner shall submit additional 
evidence as the director, in his or her discretion may deem necessary. The purpose of the request for evidence 
is to elicit firther information that clarifies whether eligibility for the benefit sought has been established, as 
of the time the petition is filed. See 8 C.F.R. $3 103.2(b)(8) and (12). As noted by the director, the petitioner 
failed to comply with this request, and simply added a few additional vague phrases to the beneficiary's job 
description, and very brief descriptions of the duties performed by the beneficiary's subordinates. 
Accordingly, based on the current record, the AAO is unable to determine the actual duties performed by the 
beneficiary, and therefore cannot determine whether the claimed managerial duties constitute the majority of 
the beneficiary's duties, or whether the beneficiary primarily performs non-managerial administrative or 
operational duties. Although specifically requested by the director, the petitioner's description of the 
beneficiary's job duties does not establish what proportion of the beneficiary's duties is managerial in nature, 
and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. 
Cir. 1991). The failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. 3 103.2(b)(14). 
i Counsel argues on appeal that the provided job descript~ons should be deemed sufficient because they 
resemble position descriptions found in the Department of Labor's Standard Occupational Classification 
(SOC) system. Counsel's argument is not persuasive. Generic job descriptions found in the SOC have no 
bearing on an assessment of this beneficiary's duties within the context of the petitioner's business, and the 
petitioner cannot satisfy its b,urden of proof by paraphrasing such descriptions; the regulations require the 
petitioner to submit a detailed description of the beneficiary's duties. See 8 C.F.R. 8 214.2(1)(3)(ii). Specifics 
are clearly an important indication of whether a beneficiary's duties are primarily managerial or executive in 
nature, otherwise meeting the definitions would simply be, a matter of reiterating the regulations. See Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103. Counsel also addresses the petitioner's failure to provide a 
breakdown of the number of hours the beneficiary and her subordinates devote to their various job duties on a 
weekly basis, noting that the petitioner was unable! to comply with the director's request because its 
employees do not keep time logs documenting how they spend "each and every hour of each work day." 
Again, counsel's argument is unpersuasive. The petitioner was granted 12 weeks in which to prepare a 
response to the director's request for evidence and had sufficient notice to provide at least an approximation 
of how its employees typically allocate their time. The non-existence or other unavailability of required 
evidence creates a presumption of ineligibility. 8 C.F.R. 8 103.2(b)(2)(i). 
EAC 04 033 54130 
Page 8 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy. As the petitioner did not submit a 
meaningful response to the director's request for complete job descriptions for the beneficiary and her 
subordinates, the director reasonably evaluated other factors, such as the petitioner's financial records and 
other supporting documentation, to determine whether the beneficiary's vaguely defined managerial and 
executive responsibilities were credible within the context of the petitioner's business. The director 
considered the reasonable needs of the business and concluded that the petitioner is not conducting business 
in a matter that would require the services of an individual primarily engaged in executive or managerial 
activities. 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. See 3 101(a)(44)(C) of the Act, 
8 U.S.C. 3 1101(a)(44)(C). However, it is appropriate for CIS to consider the size of the petitioning company 
in conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Counsel claims that the director did not consider all relevant 
factors in analyzing the petitioner's reasonable needs. Specifically, counsel asserts the director failed to 
consider that the petitioner is still in an initial start-up phase and has been negatively impacted by the 
economic downturn following September 1 1,200 1. 
\ 
At the time of filing, the petitioner was a five-year-old company engaged in selling beauty supplies and 
accessories to shops in the New York City area. The evidence shows that the firm employed the beneficiary 
as general manager, a salesperson who takes orders and receives payments upon delivery, and a packing 
employee who prepares orders for delivery and checks merchandise received from suppliers. The petitioner 
did not indicate who is responsible for many of the business's day-to-day operational and administrative 
tasks, such as marketing, purchasing products fiom vendors and suppliers, monitoring inventory, arranging 
transport and delivery of orders to customers, issuing invoices, paying bills and performing routine 
bookkeeping and banking tasks. The petitioner has not provided sufficient evidence that it employs a 
subordinate staff that can relieve the beneficiary from performing non-qualifying duties. This conclusion is 
supported by the more detailed job description submitted on appeal, which confirms that the beneficiary is 
actively engaged in operational duties such as contacting suppliers to, purchase goods, supervising non- 
professional employees, performing sales and customer relatjons tasks, marketing, paying bills, reconciling 
bank balances, billing and collections, and inventory ,and storage activities. These duties comprise the basic 
daily operational and supervisory tasks of the company and have not been shown to be incidental to the 
beneficiary's daily duties. An employee who primarily performs the tasks necessary to produce a product or 
provide services is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 583, 604 (Comni. 1988). 
EAC 04 033 54130 
Page 9 
The petitioner has not explained how the reasonable needs of the petitioning enterprise justify the 
beneficiary's regular performance of non-managerial or non-executive duties three years after she was granted 
L-1A status. The petitioner cannot simply explain that it remains in the "initial start-up phase" and expect to 
be exempted from the requirement that it employ the beneficiary in a primarily managerial or executive + 
capacity. Although the beneficiary was initially granted L-1A status commencing on November 30, 2000, 
there is no evidence that the petitioner hired any additional employees until July 2003. The beneficiary has 
therefore been solely responsible for all operational tasks of the petitioning company for the majority of her 
initial period of L-1A classification. 
In sum, the lack of a detailed description of the beneficiary's actual duties, considered in conjunction with the 
petitioner's failure to respond to the director's request for evidence and the evident lack of employees to 
perform the non-qualifying operational and administrative functions of the organization, precludes the AAO 
from determining that the beneficiary is employed in a primarily managerial or executive capacity. The fact 
that an individual manages a small business and is assigned a managerial or executive job title does not 
necessarily establish eligibility as an intracompany transferee. While the beneficiary may exercise 
discretionary authority over the U.S. company, the record is not persuasive in demonstrating that the 
beneficiary has been or will be employed in a primarily managerial or executive capacity. The petitioner 
indicates that it plans to hire additional managers and employees in the future. 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 of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). In the instant matter, the petitioner has not 
reached the point that it can employ the beneficiary in a predominantly managerial or executive position. For 
this reason, the appeal will be dismissed. 
Although not addressed by the director, a remaining issue to be examined is whether the petitioner has 
established that the beneficiary's services are for a temporary period. The regulation at 8 C.F.R. 
9 214.2(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 this matter, the record shows that the beneficiary is the sole stockholder of the U.S. 
company and either the majority partner or sole proprietor of the foreign entity. On the petition, the petitioner 
indicated that the beneficiary's services would be required for two years. No evidence of the claim was 
provided. In the absence of persuasive evidence, it cannot be concluded that the beneficiary's services are to 
be used temporarily or that she will be transferred to an assignment abroad upon completion of the position in 
the United States. As the director did not request additional evidence on this issue, the AAO notes this 
deficiency for the record and will not discuss it further. 
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. tj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.