dismissed L-1A Case: Textiles

PUBLIC COPY 
U.S. Department of Elomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 23 1 50284 Office: NEBRASKA SERVICE CENTER Date: SEP 2 $ 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 IOl(a)(15)(L) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
I Administrative Appeals Office 
LIN 04 23 1 50284 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an Illinois corporation and claims to be engaged in the manufacture and wholesale of 
hand printed fabrics and women's Indian garments. The petitioner states that it is a subsidiary of Sajnee 
Prints Pvt. Ltd., located in India. Accordingly, the United States entity petitioned CIS to classify the 
beneficiary as a nonimmigrant intracompany transferee (L- 1 A) pursuant to section 10 1 (a)( 15)(L) of the 
Act as an executive or manager for two years. The beneficiary was initially granted a one-year period of 
stay to open a new office in the United States and was subsequently granted an extension of stay. The 
petitioner now seeks to extend the beneficiary's stay in order to continue to fill the position of president. 
The director denied the petition concluding that the record contains insufficient evidence to demonstrate 
that the beneficiary will be employed in a managerial or executive capacity. The director suggested that it 
did not appear that any of the beneficiary's subordinates were professionals, and thus the beneficiary will 
be primarily involved in performing the day-to-day services essential to maintaining the business. 
On appeal, counsel for the petitioner states that the beneficiary is employed in a managerial capacity and 
asserts the director erred by denying the petition. Counsel for the petitioner indicates that the director 
erred in requiring documentation evidencing that the subordinate employees are professionals. Counsel 
submits a brief in support of the appeal. 
To establish eligibility under section 10 1 (a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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. fj 214.2(1)(3) mher 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 
LIN.04 23 1 50284 
Page 3 
prior education, training, and employment qualifies himlher 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 to be addressed in this proceeding is whether the petitioner has established that the beneficiary 
will be employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 110l(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. $ 1 101(a)(44)(B), provides: 
The term "executive capacity" means 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-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
LIN 04 23 1 50284 
Page 4 
The nonirnmigrant petition was filed on August 12, 2004. The Form 1-129 indicates that the beneficiary will 
be employed in the position of president for the petitioner. In a letter of support dated July 21, 2004, the 
beneficiary's proposed duties in the U.S. are described as the following: 
It is proposed that the Beneficiary will continue as President of the Petitioner. As such, he 
will be responsible for new business development the parent abroad wishes to accomplish in 
the United States. It is anticipated he will engage an accountant and a shipping director to 
assist in the marketing of the parent's lines of hand printed fabrics, embroidered fabrics, and 
women's ready made clothng items including sarees and blouses and gold foil decorated 
fabrics and pleated fabrics and crushed fabrics. He will correspond with and obtain 
meetings with responsible officers of the United States companies primarily responsible for 
purchasing. He will present the company's products and have responsibility for 
management of client accounts and projects. He will manage all public relations matters of 
the company in the United States. He will have financial control of the Petitioner and 
assume all administrative responsibilities with respect to the United States subsidiary 
Petitioner. He will report regularly to the parent abroad and work with staff there who may 
be involved in fulfilling orders for United States customers. 
The petitioner also submitted the U.S. company's IRS Form 1120, U.S. Corporation Income Tax Return, for 
2003. 
 The documents indicate that no salaries and wages were paid in 2003. 
 There was however, 
compensation of officers in the amount of $60,000. The beneficiary's salary for 2003 was $60,000. The 
petitioner stated on Form 1-129 that the company had three employees at the time of filing. 
The director determined that the petitioner submitted insufficient evidence to process the petition. On 
December 23, 2004, the director requested that the petitioner submit the following documentation: (1) a 
complete, detailed description of the duties presently performed by the beneficiary in the United States 
including the percentage of time the beneficiary spends performing each duty; (2) further evidence to 
establish that the beneficiary qualifies under all four criteria for either a manager or executive, including 
an organizational chart and further documentation evidencing the beneficiary's level of authority, types of 
employees supervised, the job titles, functions, and academic credentials of all employees; and (3) if the 
beneficiary is managing an essential function for the petitioner, documentation evidencing this factor. 
The petitioner submitted a response to the director's request for additional evidence on March 12,2005. The 
petitioner submitted an organizational chart of the U.S. company indicating the job titles and the names of the 
employees in each position. The response submitted by the petitioner failed to indicate the job duties and 
educational level for each employee. Furthermore, the petitioner did not submit a more detailed job 
description of the beneficiary's position as requested by the director. Finally, the petitioner failed to submit 
evidence to establish that the beneficiary qualifies for all four criteria for either a manager or executive. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. ?j 103.2(b)(14). 
The beneficiary submitted a letter fixther discussing his duties as chief executive for the U.S. entity as the 
following: 
LIN 04 23 1 50284 
Page 5 
There is no person in the U.S. company senior or superior to me. I am beholden only to the 
authority of my co-equal Directors of the Indian parent company. They exercise only very 
loose supervision in terms of monitoring of U.S. company financial and sales report that we 
send them. My duties are manifold: I set: sales and marketing standards, goals and policies; 
pricing standards, credit policies, all personnel policies; negotiate and consummate major 
sales contracts. 
In addition, the organizational chart submitted by the petitioner indicates that the U.S. entity consists of the 
president and CEO position held by the beneficiary who then supervises the retail manager, administration 
and bookkeeping employee, two store managers and a wholesale manager. The chart also identifies four 
sales persons subordinate to the store managers, and a shipping and handling employee who reports to the 
wholesale manager. It appears that the same individual fills the positions of retail manager and wholesale 
manager. The submitted organizational chart is inconsistent with the documentation orignally submitted. 
The 1-129 indicates that the U.S. entity has three employees, however, the organizational chart indicates eight 
employees. In addition, in the petitioner's initial support letter dated July 21, 2004, the petitioner states that 
"it is anticipated he [the beneficiary] will engage an accountant and a shipping director." However, the 
organizational chart indicates that the company employs an accountant and shipping director. 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. Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). 
Furthermore, the organizational chart indicates a store manager and two sales persons for a second retail store 
located in Chicago, Illinois. The second store was established in January 2005, four months after the 
petitioner filed the instant petition. 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). Since this store was not in existence at the time of filing the instant petition, the 
AAO will not review the beneficiary's duties and subordinate employees related to the store located in 
Chicago. 
The petitioner did submit its Illinois Employer's Contribution and Wage Report for the third quarter of 
2004, which confirms that the petitioner employed only three employees in August 2004 when the 
petition was filed. The petitioner's claimed store manager and administration and bookkeeping employee 
were employed during the third quarter of 2004, and received wages of $150.00 and $300.00, 
respectively. Two other employees are named on the wage report, but these employees do not appear on 
the organizational chart and the petitioner has not addressed their job titles or job duties. 
The director denied the petition on April 21, 2005 on the ground that the petitioner did not establish that 
the beneficiary will be employed in a primarily managerial or executive capacity. The director observed 
that since the United States company consists of employees that do not appear to be professionals, it is 
likely that the beneficiary will perform the duties required for the functions and day-to-day operations of 
the business, rather than oversee the functions andlor the personnel that perform those duties. 
LIN 04 23 1 50284 
Page 6 
On appeal, counsel for the petitioner asserts the following: 
The beneficiary will engage solely in managerial duties and the record contains 
documentation to substantiate that fact. The Denial improperly creates a requirement 
which is not found anywhere in the statute or regulations that the petitioner must employ 
"professional support staff' whose jobs require university degrees in order to demonstrate 
that the beneficiary will solely act as a qualified manager. 
The denial language makes it clear that unless any subsidiary has grown to such a size as 
to justify the need for an employment of a "professional subordinate staff' (persons who 
have a bachelor's degree or equivalent), the Service will presume that the L-1A 
beneficiary will be performing day-to-day services, not limiting his duties to those solely 
managerial in nature and therefore not qualified for L-IA status. 
Those managerial duties were enumerated as: "closely monitor and supervise the 
managers of both retail stores and the wholesale operations, set purchasing goals and 
policies; set: sales and marketing standards, goals and policies; pricing standards, direct 
policies, all personnel policies; negotiate and consummate major sales contracts." The 
denial quibbles that the percentage of time spent on each duty was not enumerated. It 
would have been possible, one supposes, to plug in time percentages. However, common 
sense dictates that because of the ebb and flow of business, any such assignment of 
percentage of time spend on particular duties is a matter of "guess" at best, and subject to 
constant variation. Surely no denial of a petition could be based on petitioner's failure to 
make and report such "guesses"? 
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not 
established that the beneficiary would be employed in a 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. 
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). 
Here, while the beneficiary evidently exercises discretion over the day-to-day operations of the business, 
the petitioner's description of his current and proposed duties suggests that the beneficiary's actual duties 
as of the date of filing were and would continue to be providing the services of the business. 
LIN 04 23 1 50284 
Page 7 
The beneficiary's proposed job description includes vague duties such as the beneficiary "set sales and 
marketing standards, goals and policies; pricing standards, credit policies, all personnel policies; negotiate 
and consummate major sales contracts," and "responsible for new business development the parent 
abroad wishes to accomplish in the United States." 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 provide any detail or explanation of the 
beneficiary's activities in the course of his daily routine. 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), afyd, 
905 F.2d 41 (2d. Cir. 1990). 
The job description also includes several non-qualifying duties such as the beneficiary will "correspond 
with and obtain meetings with responsible officers of the United States companies primarily responsible 
for purchasing," "present the company's products and have responsibility for management of client 
accounts and projects," "manage all public relations matters of the company in the United States," and 
"have financial control of the Petitioner and assume all administrative responsibilities with respect to the 
United States subsidiary." It appears that the beneficiary will be providing the services of the business 
rather then directing such activities through subordinate employees. An employee who "primarily" 
performs the tasks necessary to produce a product or provide a service is not considered to be "primarily" 
employed in a managerial or executive capacity. See sections 101(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 International, 19 I & N Dec. 593, 604 (Comm. 1988). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of providing that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. The word "primarily" is defined as "at first," principally,' or "chiefly." 
Webster's 11 New College Dictionary 877 (2001). Where an individual is "principally" or "chiefly" 
performing the tasks necessary to produce a product or to provide a service, that individual cannot also be 
"principally" or "chiefly" perform managerial or executive duties. Contrary to counsel's contention that 
the petitioner's failure to "guess" at such percentages is irrelevant, CIS must determine that the 
beneficiary is primarily engaged in a managerial or executive capacity. To make such a determination it 
is necessary to require detailed description of the beneficiary's duties and the time the beneficiary devotes 
to these duties. As noted above, the petitioner failed to provide the requested evidence regarding the 
beneficiary's actual duties and the percentage of time he devotes to each task. 
As the United States company had only three employees at the time of filing, two of which appear to have 
been employed on a part-time basis, it is reasonable to assume, and has not been proven otherwise, that 
the beneficiary is directly performing sales, promotion, purchasing, marketing and financial development, 
and all or many of the various operational tasks inherent in operating a retail store on a daily basis, such 
as acquiring products, maintaining inventory, paying bills, and customer service. Based on the record of 
proceeding, the beneficiary's job duties are principally composed of non-qualifying duties that preclude 
him from functioning in a primarily managerial or executive role. Accordingly, the director reasonably 
concluded that the beneficiary will be performing the day-to-day operations and directly be providing the 
services of the business rather than directing such activities through subordinate employees. 
LIN 04 23 1 50284 
Page 8 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather 
the AAO must determine based on a totality of the record whether the description of the beneficiary's 
duties represents a credible perspective of the beneficiary's role within the organizational hierarchy. The 
record does not demonstrate that the beneficiary has a sufficient number of employees in the United 
States employed full-time who could perform the non-managerial tasks associated with operating a retail 
store six days per week. The petitioner's general description of the beneficiary's duties and the lack of 
sufficient personnel to perform these tasks make it impossible to conclude that the beneficiary would 
plausibly perform primarily managerial or executive duties. 
Furthermore, the petitioner has not established that the beneficiary will be managing an essential function 
of the U.S. company. The term "function manager" applies generally when a beneficiary does not 
supervise or control the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the organization. 
 See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner 
claims that the beneficiary is managing an essential function, the petitioner must furnish a written job 
offer that clearly describes the duties to be performed in managing the essential function, i.e. identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. $ 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. 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. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th 
Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornm. 1988)). In 
this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
As discussed above, the totality of the record supports a conclusion that the beneficiary would be required 
to perform primarily non-qualifying duties associated with the petitioner's day-to-day functions, as the 
petitioner has not identified sufficient staff within the petitioner's organization, subordinate to the 
beneficiary, who would relieve the beneficiary from performing routine duties inherent to operating the 
business. The fact that the beneficiary has been given a managerial job title and general oversight 
authority over the business is insufficient to elevate his position to that of a "function manager" as 
contemplated by the governing statute and regulations. 
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or 
medium size businesses. However, the AAO has also long required the petitioner to establish that the 
beneficiary's position consists of primarily managerial and executive duties and that the petitioner has 
sufficient personnel to relieve the beneficiary from performing operational and administrative tasks. It is 
the petitioner's obligation to establish however, through independent documentary evidence that the day- 
to-day non-managerial and non-executive tasks of the petitioning entity are performed by someone other 
than the beneficiary, although, as correctly noted by counsel, these employees need not be professionals. 
Here, the petitioner has not met this burden. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be 
employed in a primarily managerial or executive capacity under the extended petition. For this reason, the 
appeal will be dismissed. 
LIN 04 231 50284 
Page 9 
The petitioner noted that CIS approved other petitions that had been previously filed on behalf of the 
beneficiary. The director's decision does not indicate whether he reviewed the prior approvals of the 
other nonimmigrant petitions. If the previous nonirnrnigrant petition was approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. The AAO is not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals 
that may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 
597 (Cornm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors 
as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision 
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The prior approvals do not preclude CIS from denying an extension of the original visa based on 
reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). 
The petitioner will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 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. Here, that 
burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.