dismissed L-1A Case: Wholesale Trade

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U. S. Citizenship 
and Immigration 
Copy Services 
FILE: EAC 02 206 53494 Office: VERMONT SERVICE CENTER Date: h?R 7 2W9 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1101(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
F. Grissom ' 
cting Chief, Administrative Appeals Office 
EAC 02 206 53494 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the 
appeal. ' 
According to the documentary evidence contained in the record, the petitioner was incorporated in 2001 and 
claims to be an importer, exporter, and wholesaler of garments and engineering equipment. The petitioner 
claims that the U.S. entity is a subsidiary of-[ Trading & Contracting Co. The 
petitioner claims four proposed employees with a projected gross annual income of $2.5 million. The 
petitioner seeks to extend the employment of the beneficiary temporarily in the United States as chief 
executive officer for a period of two years, at a yearly salary of $30,000. The director determined that the 
petitioner had not submitted sufficient evidence to demonstrate that the beneficiary has been or would 
continue to be employed by the U.S. entity primarily in a managerial or executive capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary's duties have 
been and will continue to be managerial or executive in nature. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding the 
beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifling organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 8 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
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 
 The AAO notes that the appeal appears to be moot, as the petitioner is no longer an active corporation. 
According to the New York State Department of State, is inactive and no longer doing business in the state. 
See New York State Department of State, Division of Corporations, Entity Information Search 
<http://appsext8.dos.state.ny.us/corp-pub1ic/COWSEARCH.ENTITYYINFORMATION?pPnameid=264553 
8&p-corpid=2618698&p-entity-name=%67%6C%6 1 %78%79&p-name-type=%25&p-search-type=%42% 
45%47%49%4E%53&p-srch-resultsgage=O> (Accessed April 22, 2009) (copy incorporated into record). 
Accordingly, even if the petition were approved, the approval would be subject to immediate revocation. See 
8 C.F.R. 8 214.2(1)(9)(iii). 
EAC 02 206 53494 
Page 3 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifylng 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 Eull-time employment 
abroad with a qualifying organization with 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 himlher to perform the intended serves 
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) states that a visa petition under section 101 (a)(15)(L) 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 qualifylng 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); 
C) A statement of the duties performed by the beneficiary for the previous year and the duties 
the beneficiary will perform under the extended petition; 
D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive capacity; 
and 
E) Evidence of the financial status of the United States operation. 
The issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary's 
employment with the U.S. entity has been and will continue to be primarily managerial or executive in nature. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(0 
 Manages the organization, or a department, subdivision, function, or 
component of the organization; 
. EAC 02 206 53494 
Page 4 
(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 
hnction 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 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(9 
 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. 
The petitioner stated that the beneficiary has been and will continue to perform managerial and executive duties 
and specifically describes those duties as: 
[The beneficiary] has spent and will spend the number of hour [sic] per week in performing his 
duties as follows: 
a. Plan and set goals and deadlines making policy decision [sic] regarding the management and 
operation of the US branch office: 5 hrs 
b. Negotiate deals, quality control, sign contracts, manage cash flows: 5 hrs 
c. Confer managers of parent company, regarding production design and quality in accordance 
to current American market taste and set price, analyze and evaluate market trends design 
fasibility and draft, design, [and] report to the board of directors in Sultante of Oman: 10 hrs 
EAC 02 206 53494 
Page 5 
d. Supervise, direct personnel and advertising, [sic] promotional activities such as getting in 
touch with regular and prospective clients direct and through correspondence, telephone, 
internet, provide samples, observe and participate shows and exhibitions, etc.: 20 hrs 
e. Arrangement of insurance, shipping, distribution and transportation arrangements, keep 
tracking [sic] goods imported, coordination with custom clearing agents, delivery and 
receive goods from clearing agents. Console [sic] day-to-day activities of subsidiary 
companies and report to the CEO 
In response to the director's request for additional evidence, the petitioner stated: 
Responsibility and duties of the beneficiary . . . primarily are to plan manage and make policy 
decision regarding activities of the branch office in the United State[s] and secure the growth of 
the branch office under his management. [The beneficiary] is authorize [sic] to use his 100% 
discretion to operate and achieve the goal of the US branch office. [The beneficiary] will 
continue to perform his managerial responsibilities and duties as past which include make policy 
decision regarding the management and operation of this branch office, under his control. He 
also, negotiates deals, quality control of services and goods, signing contracts, managing cash 
flows, making personnel related decisions such as hiring firing, employee benefits and confer 
directly with managers of parent company, in Oman regarding production, design, and quality in 
accordance to US Market trend, taste and set price, analyze and evaluate market and report 
directly to the Board of Directors of parent company in Oman. [The beneficiary] have [sic] 
provided guidance so that the production targets are met, garments are manufactured as per 
specification of the various stores such as Wall Mart, Target, J.C. Penny. 
The director determined that the record contained insufficient evidence to demonstrate that the beneficiary has 
been or would continue to be employed primarily in a managerial or executive capacity. The director stated 
that based upon the evidence presented it appeared that the beneficiary will be providing sales services to the 
organization rather than directing the management of the same. The director noted that there appeared to be 
only one other employee, besides the beneficiary, employed by the U.S. entity. The director stated that the 
evidence failed to show that the beneficiary managed a subordinate staff of professional, managerial, or 
supervisory personnel who would relieve him from performing the non-qualifying duties. The director 
fiuther stated that the record indicated that a preponderance of the beneficiary's duties would be directly 
providing the services of the business. The director stated that the beneficiary could not be said to be engaged 
in primarily managerial duties a preponderance of the time as the business had not expanded to the point 
where the services of a hll-time, bona fide chief executive officer would be required. The director concluded 
that based upon the evidence of record, the beneficiary would be performing the day-to-day functions of the 
organization rather than managing a function of the U.S. entity. 
On appeal, counsel disagrees with the director's decision, and states that the beneficiary secures the U.S. 
entity's growth under his management. Counsel reiterates the beneficiary's duties and performance 
responsibilities. Counsel also contends that under the beneficiary's management the U.S. entity has been 
able to open its own store in Jamaica, New York. Counsel infers throughout his brief that the U.S. entity is 
still in its developmental stages and continues to experience periods of growth. Counsel further asserts that 
the U.S. entity has employed a sales person since November 12, 2001, and that the salesperson performs all 
non-managerial duties offsite. Counsel asserts that as a result of the September 1 lth terrorist attacks, the 
EAC 02 206 53494 
Page 6 
beneficiary has had to travel abroad extensively in an effort to contract business. Counsel also contends that 
the beneficiary will be hiring other personnel in the future. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
and will be employed primarily in a managerial or executive position. 
The record reveals that the petitioner is filing for a new office extension and therefore was required to have 
been doing business for one year prior to the filing of the petition. Therefore, it is not to be considered a new 
office pursuant to 8 C.F.R. 3 214.2(1)(l)(ii)(F) for purposes of evaluating the beneficiary's proposed position. 
Counsel infers that the U.S. entity is still in the developmental stages and anticipates growth and further 
development in the future. However, 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended 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 provisional one-year period. If the business is 
not sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In the 
instant case, the petitioner has failed to present sufficient evidence to establish that it has reached the point 
where it can employ the beneficiary in a predominantly managerial or executive position. 
The petitioner has not provided a comprehensive description of the beneficiary's job duties. 
 The 
beneficiary's position description is too general and broad to establish that the preponderance of his duties 
will be managerial or executive in nature. The following duties are without any context in which to reach a 
determination as to whether they would be qualifying as managerial or executive: makes policy decisions, 
develops market strategy, negotiates deals, makes personnel related decisions, analyzes and evaluates market 
trends in the United States, plans and set goals and deadlines, signs contracts, and manages cash flow. 
Further, there is insufficient detail regarding the actual duties of the assignment to overcome the objectives of 
the director. 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. Y Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). The actual duties themselves reveal the true nature of the employment. Id. at 11 08. 
The petitioner has not demonstrated that the beneficiary will be primarily supervising a subordinate staff of 
professional, managerial, or supervising personnel who can relieve him from performing non-qualifymg 
duties. Counsel claims that there is a sales representative who has been employed by the U.S. entity since 
November 12, 2001. However, a letter written by the claimed employee demonstrates that as of November 
13, 2001, the parties were still negotiating the terms of an employment contract. In addition, on appeal 
counsel admits "according to the petitioner's plan, the petitioner will hire some subordinate employees in the 
Branch Office . . . who will be under control of the beneficiary . . . and relieve him from performing non- 
managerial duties . . . ." 
Based upon the evidence submitted, it does not appear that the reasonable needs of the petitioning company 
would plausibly be met by the services of the beneficiary as manager or executive. As required by section 
101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is acting 
in a managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. To establish that the reasonable 
needs of the organization justify the beneficiary's job duties, the petitioner must specifically articulate why 
those needs are reasonable in light of its overall purpose and stage of development. In the present matter, the 
EAC 02 206 53494 
Page 7 
petitioner has not explained how the reasonable needs of the petitioning enterprise justify the beneficiary's 
performance of non-managerial or non-executive duties. 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. Comm. 1972). 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
lOl(a)(44)(A) and (B) of the Act, 8 U.S.C. 8 1101(a)(44). The reasonable needs of the petitioner may justify 
a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 90 percent, 
but those needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying 
duties. 
The record does not establish that the beneficiary's duties will be primarily directing the management of the 
organization. The record indicates that the beneficiary's primary duties have and will consist of maintaining 
the business operations rather than managing the same. The petitioner has not demonstrated that it has 
reached or will reach a level of organizational complexity wherein the hiring and firing of personnel, 
discretionary decision making, and setting company goals and policies constitute significant components of 
the duties performed by the beneficiary on a day-to-day basis. Nor does the record demonstrate that the 
beneficiary primarily manages an essential function of the organization. 
Based upon the record, it appears that the beneficiary will be performing the sales and day-to-day hnctions of 
the U.S. entity rather than managing a function of the organization. An employee who "primarily" performs 
the tasks necessary to produce a product or to provide services is not considered to be "primarily" employed 
in a managerial or executive capacity. See sections 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 
Intn'l., 19 I&N Dec. 593,604 (Cornm. 1988). 
The record indicates that a preponderance of the beneficiary's duties have been and will be directly providing 
the services of the organization. The petitioner has not demonstrated that the beneficiary will be functioning 
at a senior level within an organizational hierarchy other than in position title. Accordingly, the petitioner has 
failed to demonstrate that the beneficiary will be employed primarily in a qualifying managerial or executive 
capacity. Accordingly, the appeal will be dismissed. 
While not directly addressed by the director, the minimal documentation of the foreign entity's business 
operations raises the issue of whether a qualifying relationship exists between the petitioning entity and a 
foreign entity pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). In the instant matter, although requested by the 
director, the petitioner failed to submit evidence of the foreign entity's business activities. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
8 103.2(b)(14). The petitioner has not demonstrated that a qualifying relationship still exists with a foreign 
entity and has not persuasively demonstrated that the foreign entity will continue doing business during the 
alien's stay in the United States. See 8 C.F.R. 8 214.2(1)(l)(ii)(H). 
 For this additional reason, the petition 
must be denied. 
The petition will be denied and the appeal dismissed 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 
EAC 02 206 53494 
Page 8 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.