dismissed L-1A Case: Wholesale/Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
jdmmhgdataMb U.S. Citizenship 
p--rtmramPrbed and Immigration 
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PUBLIC COPY 
File: SRC 03 240 5 1390 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
Robert P. Wiemann, Director 
\ Administrative Appeals Office 
SRC 03 240 5 1390 
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DISCUSSION: The Director, Texas Service Center, Penied 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 financial manager as 
an L-1A nonimmigrant intracompany transferee pursuant40 section lOlfa)(l5)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation formed in the State of 
Georgia that claims to be a wholesale iewelrv importer and exporter. It overates a gas station and convenience " - L 
store in Tennessee. The petitioner ilaims that it is the s;bsidiary located in 
Mumbai, India. 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 three years. 
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 appeal, counsel for the petitioner asserts that the director's decision is in error because it (1) places undue 
emphasis on the small size of the petitioning company; (2) is contrary to the director's previous decision to 
approve the initial petition submitted on behalf of the beneficiary; and (3) the petitioner has submitted 
sufficient evidence to establish that "it is making normal progress in the growth and development of its 
business." In support of his assertions, counsel cites Mars Jewelers Inc. v. INS, 702, F. Supp. 1570 (N.D. Ga. 
1988), and various unpublished AAO decisions. Counsel submits a detailed brief 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. 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 (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. 
(iii) Evidence that the alien has at least om continuous year of full time employment 
abroad with a qualifying organization. within the three years preceding the filing of 
the petition. 
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(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 regulation at 8 C.F.R. 5 214.2(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 (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by thebeneficiary 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 primary issue in the present 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. 5 llOl(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 
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(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), 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. 
On the Form 1-129 Petition submitted on September 4, 2003, the petitioner stated: 
The Alien will continue to plan, direct and manage financial activities of the company. More 
specifically, he will continue to develop monetary sources through commercial loans and 
other sources and prepare reports, budgets, financial -statements, and profit and loss 
statements. 
In an August 27, 2003 letter submitted with the initial petition, the petitioner described the beneficiary's job 
duties as follows: 
The Financial Manager of the U.S. subsidiary . . .will plan and direct financial activities of 
the company. The Financial Manager will direct, manage and monitor all financial activities 
for the company. The Financial Manager will develop monetary sources, through 
investments, letters of credit, lines of credit,cornmercial loans and other financial resources. 
Further, the Financial Manager will prepare reports, budgets, financial statements, balance 
sheets, profit and loss statements and tax returns for the U.S. subsidiary. Also the Financial 
Manager will determine import and export tariffs and taxes. The Financial Manager will also 
prepare reports for management in the U.S. as well as the parent company abroad. 
On the Form 1-129 Petition, the petitioner indicated that it employed two workers. The petitioner submitted its 
IRS Forms 941, Employer's Quarterly Federal Tax Return, with attachments showing that the petitioner 
employed the beneficiary and the individual identified as president of the company as of the second quarter of 
2003. 
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On October 22, 2003, the director requested additional evidence, including, in part: (1) evidence of the 
petitioner's current staffing level, including position titles and duties of all employees and the educational 
background of any professionals; (2) copies of the-petitioner's Employer's Quarterly Tax Returns for 
September 2003; (3) copies of Quarterly Wage Reports for all employees from March 2003 to present; and (4) 
an explanation as to who performs the shipping and handling - for the United States and foreign entities. 
In a reply received on January 21, 2004, the petitioner submitted the requested federal and state quarterly 
wage reports, confirming the employment of the beneficiary and the petitioner's president as of the time of 
filing. Counsel for the petitioner further provided that "shipping is generally overseen by the President and 
CEO of the company." The petitioner also submitted a copy of the Form I-797A Approval Notice indicating 
that its president was working pursuant to L-1A status, In a letter dated January 13, 2004, the petitioner's 
president and chief executive officer stated, "please note that virtually the same evidence was submitted in a 
petition to extend my L-1A visa. USCIS approved my extension. . . .Therefore, in the spirit of consistency, I 
respectfully request that you approve this case." The petitioner did not provide the requested evidence of the 
company's staffing levels. 
On April 6, 2004, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily manpgerial or executive capacity under the extended petition. 
The director noted that the petitioner had not provided all of the requested evidence, and concluded that based 
upon the evidence submitted the beneficiary, would be directly performing the day-to-day operational duties 
of the petitioner's business. 
On appeal, counsel for the petitioner asserts that the director erronesusly concluded that the beneficiary would 
not be employed in a qualifying managerial or executive capacity. Counsel asserts that the director placed 
undue emphasis on the small size of the petitioning company and cites Mars Jewelers, lnc. v. INS and several 
unpublished AAO decisions to stand for the proposition that a small company with few employees can 
support a managerial or executive position. Counsel claims that t'he beneficiary's duties are the same as the 
beneficiary in the Mars Jewelers case and that such decision is controlling precedent, as it was decided by a 
federal court in the same jurisdiction. Counsel further asserts that the beneficiary's duties have not changed 
since the filing of the initial petition on his behalf, and contends that the director ignored the earlier approval 
and the subsequent growth of the petitioner's business. Counsel avers "the Regulations contemplate that for 
start-up businesses, the petitioner must merely establish that it is making normal progress in the growth and 
development of the business." Finally, counsel states that thedirector erroneously required the petitioner to 
submit a franchise agreement between itself and Texaco, and, in part, based her decision on the petitioner's 
failure to submit such document. 
Counsel's assertions are not persuasive. Upon review of the petition and supporting evidence, the petitioner 
has not established that the beneficiary will be employed in a managerial or executive capacity under the 
extended petition. 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). 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. 
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The petitioner's initial description of the beneficiary's job duties did not establish that the beneficiary would 
be employed in a primarily manageriaLor executive capacity, other than in job title. The petitioner described 
the beneficiary as preparing reports, budgets, financial statements, balance sheets, profit and loss statements 
and tax returns, preparing reports for the president to review, and determining import and export tariffs and 
taxes. These duties, although somewhat complex in nature, are administrative ta.sks which do not fall under 
the statutory definition of managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act, 
8 U.S.C. 1101 $8 (a)(44)(A) and (B). Although the petitioner claims that the beneficiary will "direct, manage 
and monitor all financial activities for the company" the petitioner has not described any duties performed by 
the beneficiary that rise to the level of managerial capacity. Specifics we 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. Sava, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
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 fails to document what proportion of the beneficiary's duties would be 
managerial or executive and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on them. This failure of documentation is important because, as noted above, the majority 
of the beneficiary's daily tasks do not meet any of the criteria for executive or managerial capacity as 
described in the statute. For this additional reason, the AAO cannot determine whether the beneficiary has 
been or will be piimarily performing the duties of a manager or executive. See IKEA US, Inc. v. U.S. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
On appeal, counsel states that the director placed undue emphasis on the petitioner's small staff size in 
making her determination, noting that the statute, regulations and case law do not impose such a requirement 
with respect to the size of the petitioning organization. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 
3 1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, Citizenship and Immigration Services (CIS) must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. In the present matter, however, the regulations provide strict evidentiary requirements for the 
extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. 3 214.2(1)(14)(ii)(D). 
Contrary to counsel's statement on appeal that the petitioner must "merely establish that it is making normal 
progress in the growth and development of the business," the regulation at 8 C.F.R. 3 214.2(1)(3)(v)(C) allows 
the "new office" 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 does not have sufficient staffing after one year to relieve the beneficiary from primarily 
performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. 
A review of the record with respect to the petitioner's staffing levels undermines the petitioner's claim that 
the beneficiary performs managerial or executive-level duties associated with the company's financial 
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management. As noted above, pursuant to 8 C.F.R. 3 214.2(1)(14)(ii)(D), the petitioner is required to describe 
the staffing of the new operation, including the number of employees, the types of positions held, and 
evidence of wages paid to employees. The petitioner in this case indicated that it employs the beneficiary as 
financial manager and a president and chief executive officer. Although requested by the director, the 
petitioner declined to provide a description of its staffing. However, the petitioner submitted quarterly reports 
and copies of canceled checks which confirm that the petitioner had no other employees during the first year 
of operations. 
At the time of filing, the petitioner was a one-year old company primarily engaged in operating a gas station 
and convenience store. Although the petitioner claimed that it was involved in the import and wholesale of 
jewelry, the evidence shows that this aspect of its business was limited to importing inventory from its parent 
company at the time of filing. The AAO notes that both of the employees have managerial or executive titles. 
The petitioner did not submit evidence that it employed any subordinate staff members who would perform 
the actual day-to-day, non-managerial operations of the company. Based on a critical analysis of the nature of 
the petitioner's business it can be assumed, and has not been proven otherwise, that the beneficiary and the 
other employee are performing all of the operational functions necessary to operate a retail store, including 
ordering inventory, stocking and arranging merchandise on shelves, receiving deliveries of food, gasoline and 
other merchandise, assisting customers with gasoline and other purchases, providing janitorial services, 
operating a cash register, paying bills and maintaining a checking account. Since gas station/convenience 
stores typically maintain long operating hours, and the petitioner only has two employees to cover such hours, 
it is reasonable to assume that the majority of the beneficiary's time is actually devoted to performing non- 
qualifying operational duties in the petitioner's store. 
While the petitioner claims that the beneficiary performs primarily managerial or executive duties, the 
petitioner has not established that it reasonably requires a financial manager in light of its current stage of 
development. The beneficiary may indeed perform some of the claimed duties; however, the petitioner has 
not substantiated its claim that such duties are his primary duties. If CIS fails to believe that a fact stated in 
the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 3 1154(b); see also 
Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 
10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
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. 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 (Cornrn. 1988). Furthermore, the petitioner bears the burden of documenting what portion of the 
beneficiary's duties will be managerial or executive and what proportion will be non-managerial or non- 
executive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Counsel cites Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570, 1573 (N.D. Ga. 1988) and several unpublished 
AAO decision to stand for the proposition that the small size of a petitioner will not, by itself, undermine a 
finding that a beneficiary will act in a primarily managerial or executive capacity. Counsel has furnished no 
evidence to establish that the facts in the instant matter are analogous to Mars Jewelers, Inc. v. INS. It is 
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noted that this case relates to an immigrant visa petition, and not the extension of a "new office" 
nonimmigrant visa. As the new office extension regulations call for a review of the petitioner's business 
activities and staffing after one year, the cases cited by counsel are distinguishable based on the applicable 
regulations. See 8 C.F.R. 5 214.2(1)(14)(ii). Additionally, in contrast ta the broad precedential authority of 
the case law of a United States circuit court, the AAO is not bound to follow the published decision of a 
United States district court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 
(BIA 1993). Although the reasoning underlying a district judge's decision will be given due consideration 
when it is properly before the AAO, the analysis does not have to be followed as a matter of law. Id. at 719. 
With respect to the unpublished AAO decision cited by counsel, while 8 C.F.R. 5 103.3(c) provides that AAO 
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished decisions 
are not similarly binding. As counsel has not discussed the facts of any of the cited matters, they will not be 
considered in this proceeding. 
The AAO acknowledges counsel's statement on appeal that the director based her decision, in part, on the 
petitioner's failure to provide a copy of a franchise agreement between the petitioner and Texaco. Counsel 
states that no such agreement exists. The director requested a copy of such agreement in her request for 
evidence based on the petitioner's representation that it was doing business as a Texaco gas station at the time 
the petition was filed. In response, the petitioner submitted a copy of its lease agreement for the gas station, 
but did not specifically indicate that no franchise agreement existed. Therefore, the director was still under the 
impression that such an agreement may exist. However, the AAO finds this issue had no bearing on the 
director's determination as to whether the beneficiary would be employed in a qualifying managerial or 
executive capacity under the extended petition. As this issue was clearly not the basis for denial of the 
petition, counsel's arguments on appeal are not persuasive. 
The AAO will address counsel's assertion that the director erred in denying the petitioner's petition for an 
extension of the beneficiary's status when CIS previously approved a petition based on similar facts, and also 
approved an extension of L-1A status for the petitioner's .other employee. Established precedent reflects that 
prior approvals do not preclude CIS from denying an extension of the original visa based on reassessment of 
the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th 
Cir. 2004). Further, the petitioner's prior petition to which counsel refers was a petition to allow the 
beneficiary to enter the United States to open a new office. Thus, that petition was governed by the 
regulations pertaining to new offices. See 8 C.F.R. Q 214.2(1)(3)(~). The present petition is a request for an 
extension of the beneficiary's status after completing a one-year period to open a new office. Thus, the 
present petition is governed by a different set of regulations pertaining specifically to new office extensions. 
See 8 C.F.R. 5 214.2(1)(14)(ii). As different law and evidentiary requirements apply to the present petition, 
the director has a duty to carefully review the petitioner's representations and documentation to determine if 
eligibility has been established. Contrary to counsel's suggestion, the fact that a prior petition was approved 
on behalf of the beneficiary does not serve as prima facie evidence that eligibility has been established in the 
present proceeding. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been or 
will be employed in a primarily managerial or executive capacity. The record indicates that a significant portion 
of the beneficiary's duties have been and will be directly providing the services of the business. An employee 
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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 (Cornrn. 1988). The petitioner has not demonstrated that the beneficiary will be primarily supervising a 
subordinate staff of professional, managerial, or supervisory personnel who relieve him from performing non- 
qualifying duties. Nor does the record demonstrate that the beneficiary primarily manages an essential function 
of the organization or that he operates at a senior level within an organizational hierarchy. Based on the evidence 
furnished, it cannot be found that the beneficiary has been or will be employed primarily in a qualifying 
managerial or executive capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner has 
been engaged in the regular, systematic, and continuous provision of goods and/or services in the United 
States for the entire year prior to filing the petition to extend the beneficiary's status. The petitioner began 
operating its gas station and convenience store in March or April of 2003. However, the petition was 
approved in September 2002. Thus, pursuant to the regulation at 8 C.F.R. Q 214.2(1)(14)(ii)(B), the petitioner 
is expected to submit evidence that it has been doing business since the date of the approval of the initial 
petition. In the instant case, there is minimal evidence that the petitioner was engaged in the regular, 
systematic and continuous provision of goods prior to commencing operations as a convenience store. With 
respect to the petitioner's jewelry import and wholesale business, the petitioner merely claims to have 
imported inventory and claims that it "will sell" jewelry in the United States. There is no evidence that the 
petitioner's planned wholesale jewelry business had progressed past the initial stages. In addition, the 
petitioner submitted no evidence of the financial status of the U.S. company, such as income tax returns or 
audited financial statements, as required by 8 C.F.R. 5 214.2(1)(14)(ii)(E). For these additional reasons the 
petition may not be approved. 
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). 
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. Q 1361. Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.