dismissed L-1A Case: Wholesale Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC-02-220-5 1827 Office: VERMONT SERVICE CENTER Date: JUN 1 6 lo@ 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that orignally decided your case. Any further inquiry must be made to that office. 
I 
#-Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC-02-220-5 1827 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
Administrative Appeals Office (AAO) dismissed the subsequently filed appeal and affirmed the director's 
decision to deny the petition. The matter is now before the AAO on motion to reconsider. The motion will be 
granted, and the AAO's previous decision will be affirmed. 
The petitioner, a Brazilian company, filed this nonimmigrant petition seeking to extend the employment of its 
U.S. subsidiary's Chief Executive Officer as an L-1A nonimmigrant intracompany transferee pursuant to 
section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1 101 (a)(] 5)(L). The U.S. 
entity is a corporation organized in the State of New Jersey that indicates it is a manufacturer's representative 
and wholesale retail business. The beneficiary was initially approved for L-1 status in the United States to 
open a new office from June 16, 1999 to May 28, 2000. Citizenship and Immigration Services (CIS) 
subsequently approved a petition for an extension of the beneficiary's status from May 28, 2000 to May 28, 
2002. The petitioner now seeks to extend the beneficiary's stay for an additional two-year period. 
On November 19, 2002, the director denied the petition, concluding that the petitioner did not establish that 
the beneficiary will be employed in the United States in a primarily managerial or executive capacity. On 
December 20, 2002, the petitioner filed a motion to reconsider, asserting that the director erroneously faulted 
the petitioner for not fully responding to a prior request for evidence. Also on December 20, 2002, the 
petitioner filed a Form I-290B appeal, asserting that it fully complied with the director's request for evidence, 
and that the petition should be approved. On April 4, 2003, the director granted the motion to reconsider, and 
again denied the petition. On September 10, 2003, the AAO dismissed the appeal, concluding that the 
petitioner failed to establish that the beneficiary will be employed in a primarily managerial or executive 
capacity. The petitioner now submits a motion to reconsider the AAO's dismissal, asserting that the AAO 
applied an erroneous interpretation of law. In support of this assertion, counsel for the petitioner submits a 
brief and copies of documents previously entered into the record. 
The regulation at 8 C.F.R. $ 103.5(a)(2) states, in pertinent part: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or Service policy. A motion to reconsider a decision on an application or 
petition must, when filed, also establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision. 
In dismissing the appeal, the AAO discussed the petitioner's burden regarding the beneficiary's employment 
capacity as follows: 
When examining the executive or managerial capacity of the beneficiary, CIS will look first 
a to the petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). Moreover, a 
petitioner cannot claim that some of the duties of the proffered position entail executive 
responsibilities, while other duties are managerial. A petitioner 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 this instance, counsel's January 16,2003 brief asserts 
that the beneficiary will be serving as a manager and an executive; therefore, the petitioner 
EAC-02-220-5 1827 
Page 3 
must demonstrate that the beneficiary's responsibilities will meet the requirements of each 
capacity. 
(Emphasis in original.) In discussing the beneficiary's claimed subordinates, the AAO stated that "the staff 
whom the beneficiary oversees fails to qualify as managerial. In turn, the lack of supervised managerial staff 
precludes CIS from classifying the beneficiary as a manager." 
On motion, counsel for the petitioner asserts that "[tlhe AAO erred in imposing a requirement in this case that 
the petitioner demonstrate that the beneficiary's responsibilities will meet the requirements of both the 
executive and the managerial capacity." (Emphasis in original.) Counsel stated that: 
, The petitioner has the burden of proof that the beneficiary's duties are of a managerial or . 
executive capacity. [The regulation at 8 C.F.R. $ 214,2(1)(3)(ii)] does not place upon a 
petitioner the burden of indicating whether the duties are of a managerial or executive nature 
as those terms are defined in the Immigration and Nationality Act. 
[Nlowhere is [CIS] authorized to require the petitioner to "demonstrate that the beneficiary's 
responsibilities will meet the requirements of each capacity." 
[CIS] must consider the evidence presented concerning [the beneficiary's] duties against both 
the statutory "managerial capacity" requirements of section 101(a)(44)(A) of the Act and the 
"executive capacity" requirements [ofJ section 101(a)(44)(B) of the Act and grant the petition 
if the evidence submitted meets either standard. 
(Emphasis in original.) Counsel further asserts that the AAO overlooked evidence of the beneficiary's job duties, 
particularly a letter from the petitioner, dated January 13,2003. Counsel states that the petitioner submitted "each 
and every item requested in the director's prior request for evidence. Counsel provides that the AAO erred in 
finding that the beneficiary does not supervise managerial staff. 
Upon review, counsel's assertions regarding the AAO's prior application of law are persuasive. To establish 
eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria outlined in section 
lOl(a)(lS)(L) of the Act. In part, the beneficiary must seek to enter the United States temporarily to assume 
employment in a managerial, executive, or specialized knowledge capacity. Section 101(a)(44)(A) of the Act, 
8 U.S.C. § 1 101(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; 
EAC-02-220-5 1827 
Page 4 
I 
(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), 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 fiom higher level executives, the board 
of directors, or stockholders of the organization. 
To establish that the beneficiary is employed in a managerial capacity, the petitioner must show that the 
beneficiary's duties meet each of the four criteria listed in sections 101(a)(44)(A)(i), (ii), (iii), and (iv) of the 
Act. The petitioner must further establish that the beneficiary will be primarily engaged with such duties. 
Section 101(a)(44)(A) of the Act. That is, the petitioner must show that more than 50 percent of the 
beneficiary's time will be devoted to managerial tasks. Id. Further, to establish that the beneficiary is 
employed in an executive capacity, the petitioner must show that the beneficiary's duties meet each of the four 
criteria listed in sections 101(a)(44)(B)(i), (ii), (iii), and (iv) of the Act. The petitioner must further establish 
that the beneficiary will be primarily engaged with such duties. Section 101(a)(44)(B) of the Act. That is, the 
petitioner must show that more than 50 percent of the beneficiary's time will be devoted to executive tasks. 
Id. 
Contrary to the AAO's statement of law in dismissing the appeal, the petitioner may employ the beneficiary in 
both a managerial and executive capacity. However, the Act does not permit the petitioner to claim that the 
beneficiary will be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory 
definitions. As noted by the AAO, the petitioner claims that the beneficiary will be employed in both a 
I 
EAC-02-220-5 1827 
Page 5 
managerial and executive capacity. To sustain such an assertion, the petitioner must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive duties under 
section 101(a)(44)(B) of the Act, and the statutory definition for managerial duties under section 
101(a)(44)(A) of the Act. The plain meaning of the Act cannot be interpreted otherwise. Yet, contrary to'the 
AAO's prior suggestion, the petitioner may still establish eligibility for L-1A classification even if it fails to 
show that the beneficiary satisfies the requirements of both section 101(a)(44)(A) and (B) of the Act, so long 
as the petitioner shows that the beneficiary will be primarily employed in one or the other capacity. See 
8 C.F.R. $ 214.2(1)(3)(ii). 
The AAO further suggested that the beneficiary must supervise other managers in order to be deemed a 
managerial employee. However, the beneficiary is not required to supervise personnel in order to establish 
that he will be employed in a managerial capacity. See section 101(a)(44)(A)(iii) of the Act. Yet, if it is 
claimed that a portion of his time is devoted to supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial in order to qualify the time spent 
overseeing them as acting in a managerial capacity. See $ 101(a)(44)(A)(ii) of the Act. If the petitioner fails 
to show that the beneficiary's subordinates are supervisory, professional, or managerial, the time the 
beneficiary invests in supervising them will not be deemed time devoted to managerial duties under section 
lOl(a)(44)(A) of the Act. 
Based on the foregoing, counsel has established that the AAO's decision included an incorrect application of 
law, and the motion to reconsider will be granted. The petition will be reconsidered, as discussed below. , 
Upon review, the petitioner has not established that the beneficiary will be employed in a pr~marily 
managerial or executive capacity. Counsel claims that the petitioner responded fully to the director's request 
for evidence of August 1, 2002. In the request, in part the director instructed the petitioner to "[slubmit a 
more detailed description of the beneficiary's duties in the U.S." and to "indicate [the] percentage of time 
spentin each of the listed duties." In the petitioner's response dated October 22, 2002, the petitioner provided 
a job description for the beneficiary and merely stated that "[olne hundred percent of the time was devoted to 
his executive and managerial duties." Thus, the petitioner failed to provide a complete response to the 
director's request. Yet, in a subsequent letter dated January 13,2003, provided on motion and on appeal, the 
petitioner submitted a breakdown of the percentage of time the beneficiary will devote to his respective 
duties. Additionally, in the present motion counsel provides a breakdown of the beneficiary's duties in his 
brief, and asserts that the director and AAO erroneously disregarded the petitioner's January 13,2003 letter. 
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 further 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. $$ 103.2(b)(8) and (12). The 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). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 
EAC-02-220-5 1827 
Page 6 
533 (BIA 1988). If the petitioner had wanted the breakdown of the beneficiary's duties to be considered, it 
should have submitted it in response to the director's request for evidence. Id. Though the AAO previously 
considered the detailed breakdown of the beneficiary's duties in dismissing the appeal, it need not have done 
so. Under the circumstances, the AAO need not and does not consider the sufficiency of the detalled job 
description in the present proceeding. The instant motion will be adjudicated based on the record of 
proceeding before the director. 
As noted above, whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of proving that his duties are "primarily" managerial or executive. See 
sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner failed to document what proportion of the 
beneficiary's duties would be managerial functions and what proportion would be non-managerial. The 
petitioner lists the beneficiary's duties as including both managerial and administrative or operational tasks, 
but failed to quantify the time the beneficiary would spend on them. This failure of documentation is 
important because many of the beneficiary's stated duties are too vague to determine whether they fall under 
traditional managerial duties as defined in the statute. For example, the petitioner states that the beneficiary 
will "[pllan business objectives," "[elstablish responsibilities and procedures for attaining objectives," and 
"[glenerate a number of different approaches to problems." Yet, these general statements do not provide an 
understanding of what actual tasks the beneficiary will perform on a daily basis. Thus, while some of the 
beneficiary's duties appear to be managerial, the AAO cannot determine whether managerial or executive 
responsibilities would occupy the majority of the beneficiary's time. 
Counsel asserts that the AAO failed to consider the entirety of the petitioner's statements when finding that the 
beneficiary's subordinateis not a managerial employee. However, in the initial petition the 
petitioner clearly stated that it employed the beneficiary, two salesmen, and a secretary at the tlme of filin 
petitioner's New Jersey State Quarterly filing for the first quarter of 2002 does not show that d?: 
-an employee during the covered period. Accordingly, the petitioner's evidence shows that-was 
hired as general manager after the date of filing. The petitioner must establish eligibility at the time of filing 
the nonimrnigrant visa petition. A visa petition may not be approved at a fbture 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). The fact that a general manager was hired after the petition was filed is not probative of the 
petitioner's eligibility or the beneficiary's employment capacity as of the filing date. 
In the petitioner's letter of January 13, 2003, it indicated that its secretary previous performed some of the 
duties of the general manager, including supervising the two salesmen. However, the petitioner failed to 
adequately explain what duties the secretary performed. The evidence of record is unclear as to whether she 
devoted the majority of her time to supervisory duties, such that she can be deemed a supervisory employee. 
Therefore, the AAO's prior determination regarding the employment capacity of the beneficiary's subordnates 
will not be disturbed. 
Nevertheless, even if the petitioner had established that the beneficiary will supervise a managerial or supervisory 
subordinate, the petitioner has failed to show that such supervisory responsibility will consume the majority of the 
beneficiary's time. 
EAC-02-220-5 1827 
Page" 7 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity. For this reason, the prior decision of the AAO will not be disturbed and the 
appeal will be dismissed. 
Beyond the decision of the director, the petitioner has submitted inconsistent documentation regarding 
whether it has a qualifying relationship with the beneficiary's foreign employer. On the initial petition, the 
petitioner indicated that it is the subsidiary of the beneficiary's foreign employer, as the foreign entity owns 
100 percent of the petitioner's outstanding stock. The petitioner submitted copies of a stock certificate, a 
company resolution, and a stock transfer ledger that reflect that the foreign entity acquired 200 shares of the 
petitibner's stock on April 20, 1999. Yet, the petitioner's 2001 IRS Form 1120, U.S. Corporate Income Tax 
Return, and the petitioner's 2001 New Jersey State tax return both state that the beneficiary owns 100 percent 
of the petitioner's 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. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). The petitioner has not explained whether its 2001 tax returns contain 
errors, or whether the beneficiary acquired the petitioner's stock on some date after April 20, 1999. 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). 
Finally, it should be noted for the record that, unless CIS directs otherwise, the filing of a motion to reopen or 
reconsider does not stay the execution of any decision in a case or extend a previously set departure date. 
8 C.F.R. 9 103,5(a)(l)(iv). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not met this burden. Accordingly, the 
previous decisions of the director and the AAO will not be disturbed. 
ORDER: The decision of the AAO dated September 10,2003 is affirmed.