dismissed L-1A Case: Textiles

identifying dgl dcktee to 
prevent cfmrS) unwarranted 
invasion &personal privacy 
U.S. Department of Ifomeland Security 
20 Massachusetts Ave. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 05 800 28795 Office: VERMONT SERVICE CENTER Date: 
Petition: 
 Petition for a Nonimmigrant Worke~ Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 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. 
/ 
dministrative Appeals Office 
EAC 07 800 28795 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner claims to be a fabrics and garment merchant and seeks to extend the employment of its chief 
executive officer in the United States as an intracompany transferee pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). 
 The petitioner, a New York 
corporation, claims to be the subsidiary of Palki International, Ltd., located in Dhaka, Bangladesh. The 
beneficiary was initially granted a one-year period of stay to open a new office in the United States, and the 
petitioner now seeks to extend the beneficiary's stay for an additional two years. 
The director denied the petition, finding that the petitioner had not demonstrated that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. Specifically, the director 
noted that the petitioner's current organizational structure and proposed business plan would not be able to 
support the employment of the beneficiary in a primarily managerial or executive capacity. The director 
noted that the beneficiary was the petitioner's sole employee and that there was insufficient evidence to show 
he was employed as a function manager. 
On appeal, the petitioner asserts that the beneficiary was in fact acting in a primarily executive capacity, and 
submits a brief and additional evidence in support of this contention. 
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. 
 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 prior 
education, training, and employment qualifies hidher to perform the intended 
EAC 07 800 28795 
Page 3 
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. $ 214.2(1)(14)(ii) also provides that a visa petition, 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 (I)(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. 
This primary 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. $ 1101(a)(44)(A), defines the term "managerial capacity" as 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 
EAC 07 800 28795 
Page 4 
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. 9 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 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter of support dated July 7, 2005, the petitioner alleged that the beneficiary is employed in the United 
States as its chief executive officer, and provided the following overview of his duties: 
[The beneficiary] has been the Chairman, Chief Executive Officer of [the foreign entity] 
since its incorporation in 1995. Within the last three years he has been intricately involved in 
expanding [the company's] fabric and textile business in North America. His responsibilities 
have been to direct other employees in marketing and selling [the company's] merchandise to 
the North American Consumers; increasing company revenues through developing new 
products; and negotiating contracts with international distributors. 
[The beneficiary's] current and proposed duties will be to continue to be [employed] in an 
executive capacity with the petitioner as a Chief Executive Officer. He will continue to 
develop and oversee [the petitioner's] corporate strategy so as to increase corporate revenues 
and to expand operations through the United States and Canada. Initially he will provide an 
avenue for trade between [the foreign entity] in Bangladesh and the North American 
Headquarters in New York City. He will continue to develop contacts with multinational 
companies as well as continue to introduce [the company's] products to the retail and 
wholesale markets in North America. 
[The beneficiary] has a Masters Degree in Political Science and Bachelor's Degree from 
Dhaka University. He obtained his Higher Secondary College Degree from Notre Dame 
College in Dhaka, Bangladesh. He has received numerous professional certifications within 
the United States and Bangladesh, and continues to attend various trade conferences. 
The director found this evidence insufficient to warrant approval of the petition and consequently issued a 
request for evidence on July 21, 2005. The director requested a definitive statement describing the 
beneficiary's duties for the past year as well as the duties he would perform if the petition was extended. In 
EAC 07 800 28795 
Page 5 
addition, the director required a statement discussing the manner in which the beneficiary would be relieved 
fiom performing the day-to-day functions of the company, as well as an overview of the company's staffing. 
In response, the petitioner provided submitted a letter dated August 10, 2005 which addressed the director's 
requests. The petitioner stated that currently, the beneficiary was the petitioner's sole employee, but further 
claimed that the petitioner would continue its expansion and continue to add more members to its operation as 
larger contracts were executed. With regard to the request for more details regarding the beneficiary's duties, 
the petitioner stated: 
Evidence of duties performed by the beneficiary in the past year include marketing and 
selling [the company's] [mlerchandise to the North American Consumers; increasing 
company revenues through developing new products; and negotiating contracts with 
international distributors. This is best demonstrated by the contracts with vendors in the US 
and Canada and the numerous invoices that are enclosed herein. [The beneficiary] will 
continue to perform these duties if the petition is extended. Currently, the day-to-day 
operations, including production, are handled in Bangladesh, through . . . the parent 
company. 
On August 23, 2006, the director denied the petition. The director determined that the evidence in the record 
did not establish that the beneficiary would be employed in a primarily managerial or executive capacity 
while in the United States. Specifically, the director noted that the beneficiary was the petitioner's sole 
employee, yet was not acting as a function manager. The director concluded by finding that the business had 
not grown as anticipated. 
On appeal, counsel for the petitioner alleges that the director's decision was erroneous, and contends that the 
beneficiary is in fact working in a qualifying capacity. Counsel asserts that the production for the company 
takes place in Bangladesh and that the beneficiary oversees the employees working in that area. Based on this 
fact, counsel concludes that the beneficiary is thus eligible for the benefit sought. 
The AAO, upon review of the record of proceeding, concurs with the director's finding. Specifically, upon 
review of the beneficiary's stated duties and the fact that he has no subordinate employees under his 
supervision in the United States, the petitioner has failed to establish that it will employ the beneficiary in a 
capacity that is primarily managerial or executive in nature. In addition, the AAO notes that while being the 
sole employee of a company is not necessarily fatal to a petition, the petitioner has failed to demonstrate that 
the beneficiary is primarily overseeing an essential function of the petitioner. 
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. 5 214.2(1)(3)(ii). In this case, the petitioner vaguely 
described the beneficiary's duties but failed to provide a specific overview.of how he will refrain from 
performing non-qualifying tasks. Despite the director's specific request for a definitive overview of the 
beneficiary's actual duties for the past year and in the future, the petitioner provided only brief, generic 
statements including marketing and selling merchandise and negotiating contracts. The AAO notes that the 
statements provided give no insight on the nature of the beneficiary's daily tasks or his day-to-day duties. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
EAC 07 800 28795 
Page 6 
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. Suva, 724 F. Supp. 
1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, it appears that the majority of the beneficiary's duties include marketing and selling the company's 
products, duties which are not traditionally considered managerial or executive in nature. The is no sales staff 
or marketing department present in the United States, and it thus stands to reason that all contracts negotiated 
in the past year, and all invoices drawn up, were done solely by the beneficiary. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 10 1 (a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner claims in the petition and on appeal that the company's production staff is based in 
Bangladesh, and since the beneficiary supervises this department, he consequently is a manager or executive 
as defined by the regulations. There are two problems with this contention. First, the absence of personnel in 
the United States indicates that the beneficiary is solely responsible for performing all day-to-day tasks. In 
particular, the vast array of invoices demonstrating goods sold by the petitioner during the previous year 
coupled with the absence of sales or marketing personnel indicates that the beneficiary himself has been 
performing the tasks necessary to provide the petitioner's goods and services. As stated above, these duties 
are not deemed managerial or executive in nature. 
Second, the regulation at 8 C.F.R. fj 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 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 the instant 
matter, the petitioner has no staff in the United States except for the beneficiary, and relies upon the parent 
company in Bangladesh to produce the goods that will be sold in the United States by the beneficiary. Since 
there is no one else in the United States to sell and market these products, it is clear that the beneficiary is 
engaged in non-qualifying duties, and thus the petitioner has not reached the point that it can employ the 
beneficiary in a predominantly managerial or executive position. 
While performing non-qualifying tasks necessary to produce a product or service will not automatically 
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner 
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive 
duties. Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" manager turns in 
part on whether the petitioner has sustained its burden of proving that his duties are "primarily" managerial. 
In the present matter, 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 claims that the 
beneficiary performs managerial duties, but it fails to quantify the time the beneficiary spends on them. This 
failure of documentation is important because several of the beneficiary's daily tasks, such as sales, 
marketing, and negotiating contracts, do not fall directly under traditional managerial duties as defined in the 
EAC 07 800 28795 
Page 7 
statute. Absent a clear and credible breakdown of the time spent by the beneficiary performing his duties, the 
AAO cannot determine what proportion of his duties would be managerial or executive, nor can it deduce 
whether the beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. US. 
Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
The record does not establish that a majority of the beneficiary's duties have been or will be primarily 
directing the management of the organization. The petitioner has not demonstrated that it has reached or will 
reach a level of organizational complexity wherein the hiringtiiring of personnel, discretionary decision- 
making, and setting company goals and policies constitutes significant components of the duties performed on 
a day-to-day basis. For this reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner has not established that it is eligble for an extension of the 
initial one-year "new office" validity period for another reason not addressed in the denial. As previously 
noted, the regulation at 8 C.F.R. § 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 submitted 
evidence that the United States entity has been doing business for the previous year as defined in 8 C.F.R. 5 
214.2(1)(l)(ii)(H). The record indicates that the petitioner was established in 2004. The petitioner, therefore, 
is required to demonstrate that it has been doing business continually for the year preceding the filing of the 
instant extension. 
The petitioner submitted a number of invoices and documents showing that it has been selling its goods on a 
regular basis. However, the majority of invoices submitted indicate the sale and delivery of CDs and DVDs. 
Since the petitioner claims throughout these proceedings that it is engaged in the sale of fabrics and garments, 
the invoices demonstrating the sale of audio and visual products raises questions regarding the legitimacy of 
the petitioner's business. 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). 
Moreover, it does not appear that a qualifying relationship exists between the petitioner and the foreign entity. 
The petitioner claims that the U.S. entity is 100% owned by Palki International, Ltd. In support of this 
contention, the petitioner submitted a copy of a share certificate which indicates that Palki International 
owned 200 shares of the petitioner. According to the petitioner's certificate of incorporation, also included in 
the record, 200 shares were authorized. However, the petitioner's Form 1120, U.S. Corporation Income Tax 
Return, indicates on Schedule E, Compensation of Officers, that the beneficiary owns 10000%' of the 
company's common stock. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Id. at 591-92. 
This would not necessarily be fatal to the qualifying relationship if the beneficiary owned a majority interest 
in the foreign entity. However, according to the foreign entity's certificate of incorporation contained in the 
record, the beneficiary merely owns 1666 of the 5000 shares authorized. Therefore, if the beneficiary was in 
fact the sole owner of the U.S. petitioner, an affiliate relationship would not exist. However, since the 
1 
 It appears that the figure 10000% is a typographical error intended to represent 100%. 
EAC 07 800 28795 
Page 8 
petitioner has failed to clarify with certainty the exact owner of the U.S. entity, the AAO is precluded from 
determining whether a qualifying relationship in fact exists. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). For 
this additional reason, the petition may not be approved. 
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, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 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). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. €j 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.