dismissed L-1A Case: Trading

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rrn. A3042 
Washington, DC 20529 
FILE: SRC 03 210 50022 Office: TEXAS SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1 101(a)(15)(L) 
ON 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. 
h 
Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the petition for a nonirnrnigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonirnmigrant petition seeking to extend the employment of its president-director as a 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(lS)(L). The petitioner is a corporation organized in the State of Texas that 
is operating as a trading company. The petitioner claims that it is the subsidiary of the beneficiary's foreign 
employer, located in Riyadh, Saudi Arabia. The petitioner now seeks to employ the beneficiary for three 
years. 
The director denied the petition concluding that the petitioner had failed to demonstrate that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel claims that the director based her denial of the petition solely on two dollar figures, 
specifically, the amount paid for salaries and the petitioner's gross annual income. Counsel states this is a 
"secret additional requirement this adjudicator has tacked onto the law and regulations." Counsel claims that 
the beneficiary is "performing extensive executive and managerial duties," and asserts that the director's 
decision is contrary to law. Counsel submits a statement and documentary evidence in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act, 8 
U.S.C. 3 1101(a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, a qualifying organization must have employed the beneficiary in a 
qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year. 
In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized 
knowledge capacity. 
The regulation at 8 C.F.R. 3 214.2(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 hirnlher 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 regulation at 8 C.F.R. 3 214.2(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: 
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(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 
(l)(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 management or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in the instant matter is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the 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. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
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(i) Directs the management of the organization or a major component or function of the 
organization; 
(ii) Establishes the goals and policies of the organization, component, or function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the nonimmigrant petition on July 23, 2003, stating that as the president-director of the 
petitioning organization, the beneficiary "[would] continue to manage all operations and will be in charge of 
hiring, firing, [and] training managers and employees." In an attached letter from the petitioner, dated July 
21,2003, the petitioner provided the following description of the beneficiary's position: 
With the U.S. Corporation, he serves as Director and President and hires, trains, supervises 
and fires all managerial personnel in our company, who, in turn, perform the same functions 
with respect to lower echelon employees. He has established and maintains financial 
relations and is developing and implementing an overall operating structure and marketing 
plan. 
The petitioner submitted Internal Revenue Service (IRS) Form 941, Employer's Quarterly Federal Tax 
Return, for the quarter ending on March 31, 2003, which identified the employment of five workers during 
this period. 
In a request for evidence, dated July 29, 2003, the director asked that the petitioner submit a list of the five 
workers identified on the employer's quarterly tax return and their job titles, and a copy of its quarterly tax 
return for the quarter ending June 2003. 
Counsel responded on August 18, 2003 and stated that the petitioner's five full-time employees include: the 
beneficiary, a vice-president, an investment manager, a service industries manager, and a worker. Counsel 
submitted a copy of the petitioner's June 30, 2003 quarterly tax return confirming the employment of five 
workers. 
In a decision dated August 19, 2003, the director determined that the petitioner had not demonstrated the 
beneficiary's employment in the United States entity in a qualifying capacity. The director, acknowledging 
the petitioner's five employees, its gross annual income, and the amount paid during the second quarter of 
2003 for salaries, stated that the beneficiary's job duties in this position would not be primarily those of a bona 
fide executive. The director stated that the petitioner did not demonstrate that the beneficiary manages or 
directs the management of a department, subdivision, function, or component of the organization, or that the 
beneficiary would be involved in the supervision and control of supervisory, managerial or professional 
employees who would relieve the beneficiary from performing the services of the business. The director 
determined that the petitioning organization had not "expanded to the point where the services of a full-time, 
bona fide president/director would be required," and stated that the beneficiary would spend the majority of 
his time performing non-executive daily functions of the business. Consequently, the director denied the 
petition. 
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Counsel filed an appeal on September 12,2003. On appeal, counsel states that the director's denial was based 
on the application of "secret" standards with respect to the evaluation of the petitioner's 2003 second quarter 
salaries and its gross income for 2002. Counsel contends that the director "has tacked" an additional 
requirement onto the law and regulations for an L-1A visa. Counsel further claims that except for these two 
items, the remainder of the director's decision is a recitation of the statute and regulations, and is a conclusory 
denial of the petition. Counsel states "[tlhe beneficiary is obviously performing extensive executive and 
managerial duties in researching and evaluating these plans and actually consummating business deals." 
Counsel claims it is irrelevant that the beneficiary employed five workers at the time of filing the petition, and 
states that the beneficiary "is simply a good, efficient, cost-conscious manager who can get a lot done with a 
few good men and women." Counsel submits additional documentation, including the petitioner's business 
plan, in support of the appeal. 
On review, the petitioner has not established that the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibilky cannot be performed. The regulation at 8 C.F.R. 5 214.2(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. In order to qualify for an extension of L-1 nonirnrnigrant classification under a 
petition involving a new office, the petitioner must demonstrate through evidence, such as a description of 
both the beneficiary's job duties and the staffing of the organization, that the beneficiary will be employed in 
a primarily managerial or executive capacity. 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. 
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. 8 214.2(1)(3)(ii). As required in the regulations, the 
petitioner must submit a detailed description of the executive or managerial services to be performed by the 
beneficiary. Id. 
Here, the petitioner submitted a brief paragraph of the beneficiary's job duties, which fails to provide an 
accurate description of the managerial or executive job duties the beneficiary would perform. It is insufficient 
to merely repeat the statutory and regulatory requirements for managerial and executive capacity by stating 
that the beneficiary "hires, trains, supervises and fires all of the managerial personnel," "maintains financial 
plans," and implements the company's operating structure and marketing plans. 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. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 4 1 (2d. Cir. 1990). 
Additionally, while the petitioner identifies the employment of four additional workers, the majority of who 
possess managerial titles, the record lacks evidence as to the job duties performed by each. This information 
is essential to determining whether each is actually employed in a claimed managerial position and whether 
the beneficiary is relieved from performing non-qualifying functions of the business. The petitioner's claim in 
its July 21, 2003 letter that the managerial personnel hire, train, supervise and fire the "lower echelon 
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employees" is also unsupported by the record, as the petitioner has not identified any lower-level employees, 
other than a "worker." The AAO notes that 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 (Comm. 1988). 
Moreover, despite counsel's suggestion on appeal that the number of workers employed by the petitioner is 
not relevant, Citizenship and Immigration Services (CIS) may consider a company's personnel size when 
determining managerial or executive capacity if the reasonable needs of the corporation are also considered. 
See section 101(a)(44)(C), 8 U.S.C. $ 1101(a)(44)(C). It is also 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). The instant record is insufficient to determine whether the 
reasonable needs of the organization are meet. 
Counsel also claimed on appeal that the director's request for additional evidence contained four "simple 
questions," all of which were answered completely. It appears that counsel is relying solely on the petitioner's 
response to the director's questions as a basis for approval of the petition. Counsel fails to recognize that, as 
noted above, the petitioner has an affirmative duty at the time of filing the petition to demonstrate through "a 
detailed description of the services to be performed [by the beneficiary]" that the beneficiary would be 
employed in the United States in a managerial or executive capacity. 8 C.F.R. 3 214.2(1)(3)(ii). Additionally, 
the regulation at 8 C.F.R. 8 103.2(b)(8) requires the director to request additional evidence "in . . . instances 
where there is no evidence of ineligibility, and initial evidence or eligibility information is missing." The 
director is not required to issue a request for further information in every potentially deniable case. If the 
director determines that the initial evidence supports a decision of denial, the cited regulation does not require 
solicitation of further documentation. 
Furthermore, even if the director had committed a procedural error by failing to solicit further evidence, it is 
not clear what remedy would be appropriate beyond the appeal process itself. The petitioner has in fact 
supplemented the record on appeal, and therefore it would serve no useful purpose to remand the case simply 
to afford the petitioner the opportunity to supplement the record with new evidence. 
With regard to the new evidence submitted by counsel on appeal, it is unclear how the documentation 
supports the petitioner's claim that the beneficiary would be employed by the United States entity in a 
qualifying capacity. Specifically, counsel submits photographs, flyers and product specifications for a 
cellular telephone business, correspondence and product lists for Pride Mobility, a manufacturer of mobility 
products, and a letter of intent for the lease of additional warehouse space. It appears that the petitioner plans 
to expand into other areas of business, yet neither counsel nor the petitioner has identified whether the 
petitioner presently owns and operates a cellular phone business or sells "Pride Mobility" products. More 
importantly, if the petitioner operates these businesses, there is no explanation how the beneficiary would be 
employed as a manager or an executive with respect to the businesses. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972). 
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Based on the foregoing discussion, the petitioner has failed to establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. For this reason, the appeal 
will be dismissed. 
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 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.