dismissed L-1A Case: Wholesale

U.S. Department of kinmeland Security 
20 Mass Ave, N W Rm , A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
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F~le: EAC 03 044 55567 Office: VERMONT SERVICE CENTER Date: MAY 1 2 2005 
Petit~on: , Pet~tion for a Nonimmigrant Worker Pursuant to Section lOl(a)(l5)(L) of the Imm~gration 
and Nationality Act, 8 U.S.C. 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Th~s is the decision df 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. 
pbert P. Wiemann, Director 
6 
dministrative Appeals Office 
EAC 03 044 55567 
Page 2 
DISCUSSION: The ~irector, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Offtce (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its vice-president as an 
L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(~) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 1 101(a)(15)(L). The petitioner is a corporation organized in the State of 
New Jersey that is engaged in the: wholesale business. The petitioner claims that it is the subsidiary of 
. located in Ahmedabad, 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.beneficiaryts.stay. 
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. , . 
The filed an appeal in response to the denial. On appeal, counsel for the petitioner contends that the 
denial was erroneous, and that the director's decision was not supported by specific facts or reasons. Counsel 
further contends that the, beneficiary's employment was in a managerial andlor executive capacity as required 
by the regulations. In support of these contentions, counsel for the petitioner submits a brief and additional 
evidence. 
, . 
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. tj 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 w~ll employ the 
allen are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of th~s section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, ~ncluding 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 allen's prlor 
education, training, and employment qualifies himher to perform the Intended 
EAC 03 044 55567 
' Page 3 
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. (j 214.2(1)(14)(ii) also provides that a visa petition, which involved the openlng of a 
new office, may be extended by filing a new Form I- 129, accompanied by the following: 
(a) Evidence that the United States and foreign entities are still qualifying organizations 
as defined m 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 posit~ons held accompanied by evidence of wages pald 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 this matter is whether the beneficiary will be employed by the United States entlty In a primarily 
managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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 supemisory, professional, or managerial 
employees, or manages an essential function within the.organization, or a department 
or subdivision of the organization; 
(111) tf another employee or other employees are directly supervlsed, has the authority to 
h~re and fire or recommend those as well as other personnel actlons (such as 
promotton and leave authorization), or if no other employee is directly supervlsed, 
functions at a senlor level with~n the organlzational hterarchy or with respect to the 
functlon 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 1s not considered to be acting in a managerial 
EAC 03 044 55567 
Page 4 
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. $ 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(1) directs the management of the organization or a major component or function of the 
organization; 
(11) establ~shes 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. 
In the lnit~al petition, counsel submitted a letter dated November 5, 2002, detailing the nature of the 
beneficlary's duties, which included seven dlstinct areas: corporate planning, general administration, finance, 
marketing-sales, buslness development, contracts, and personnel. In addition, counsel submitted a letter from 
the U.S. employer outlining the beneficlary's dunes while employed in the United States. The petitloner 
described h~s duties as follows: 
Corporate Planning : ' 
[The beneficiary] as Managing Partner, participates preparation [sic] of the corporate plan to 
cover recommendations to the management with regard to economic objectives and policles 
of the company. 
General Administration : 
[The beneficiary] directs the overall business operations of the company, and wlll analyze the 
operating procedures and devise the most efficient methods to accomplish the taskslwork. 
[The beneficiary] is responsible to manage the affairs of the company in a manner to conduct 
the same in an orderly manner ensur;ng due compliance with statutory requirements and to 
achieve smooth and efficient operations overall. 
Marketing-Sales : 
[The beneficiary] undertakes to research the market conditions in local, regional and national 
environment to determine the potential sales of the company's products. [The beneficiary] 
studies economic and statistical data and utllizes the knowledge to stay abreast of the 
economic changes and to forecast future marketing trends. Also undertakes studies of 
competition, analyze their prices, sales and methods of marketing and distribution and 
accordingly, plan & implement corresponding policy and operations of the company. 
EAC 03 044 55567 
Page 5 
Business Development : 
[The beneficiary] is responsible for sales and business development, which will account for 
100% incoming revenue of the company. [The beneficiary] meets potential clients, ensure[s] 
suitable customer services . . . during and after sales, looks for new products, and new 
markets. The aim and purpose of this exercise IS to secure progressively ~ncreasing [sic]. 
Purchases : 
[The beneficiary] is responsible for purchase of materials and supplies required by the 
company and reviews catalogue listings, examines samples, attends demonstration of 
products and conventions and calls for quotations. [The beneficiary] compares offers from 
alternative-sources, negotiates contract terms and finalize[s] the same. [The beneficiary] is 
also responsible to ensure regular and continued flow of the materials and supplies required 
for the operations of the company. 
Personnel : , . 
[The beneficiary] will have the charge of the personnel department and shall operate with an 
authority to hire and' fire the staff Also review the performance of .each individual staff 
member and will study the employee's attitude towards work environment. [The beneficiary] 
, will evaluate their motivation and overall efficiency to perform vis-a-vis their job related 
skills, inter-personnel attitude and intellectual capabilities to deal with s'ituations on the spot. 
[The beneficiary] will also review other factors, such as punctuality, sincerity, honesty, speed 
and other, for ongoing .periodical rating of each employee and to decide about their 
remuneration and rewards. [The beneficiary] will establish and follbw policies to continually 
boost the morale of the staff working for the organization. 
On February 6, 2003, ,the director requested additional evidence pertaining to the nature of the beneficiary's 
position in the U.S. business, including a detailed list of the beneficiary's duties. In addition, the director 
requested that the petitioner demonstrate that the beneficiary functioned at a senior level in the organization 
and that the beneficiary would be managing a subordinate staff of supervisory, managerial, or professional 
personnel who would relieve the beneficiary of the need to engage in day-to-day tasks. Finally, the director 
asked the petitioner to provide information on any contractors the U.S. entity retained, and further requested a 
statement 'regarding the staffing of the U.S. entity, including the number of employees retained by the U.S. 
entity as well as their positions and their duties. In a response dated April 28, 2003, the petitioner, through 
. counsel, submitted a lengthy response that reiterated the seven main areas in which the beneficiary engaged. 
Though counsel's response provided an ample discussion of the law and history pertaining to this petition in 
addition to a detailed restatement of the beneficiary's duties, it failed to address the director's specific request 
for information regarding the staffing of the U.S. entity. 
On.July 16, 2003, the director denied the petition. The director, who reviewed the record to determine 
eligibility under both' managerial and executive capacity, found that the beneficiary's stated duties had 
satisfied neither. The director noted that the nature and structure of the business as currently functioning did 
not appear to support the position of a bonafide manager or executive. Instead, the director found that the 
beneficiary, although acting in title as vice-president, was essentially performing the majority of the tasks' 
EAC 03 044 55567 
Page 6 
requlred to keep the business in operation. On appeal, counsel for the petitloner asserts that the director's 
declslon contalns generalized statements that do not fully consider the evidence presented. Counsel 
continually avers that the beneficiary's stated duties satisfy the regulatory requirements, and that the dlrector 
relled on assumption rather than fact in finding that the beneficiary had not been employed m a pnmarlly 
managerial or executive capacity. Counsel, however, fails to address the director's specific reasons for the 
denial, and instead repeatedly accuses the director of providing a curt and abrupt review to the evidence that 
was deemed insufficient prior to adjudication. , 
Upon review, counsel's assertions are not persuasive. When examining the executive .or managerial capacity 
of the benefici,ary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2()(3)(). 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 petitioner must demonstrate that the beneficiary's responsibilities will meet the 
requirements for one or the other capacity. 
. . 
The AAO will first examine the beneficiary's duties in the United States. Whether the beneficiary is a 
manager 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. Both counsel 
and the,pet~tioner, in separate letters accompanying the initial petition, identified seven distinct areas in which 
the beneficiary would provide his services. Although these desc;iptions were lengthy, they lacked the 
' specific information required in order for the director to ascertain the exact nature of the beneficiary's duties. 
When asked for addi'tional information, counsel for the petitioner submitted a extensive response which 
restated the previously-identified duties, and added counsel's own assertions as to why such duties qualified 
the beneficiary as a manager. and/or executive. 
' 
There are two problems wlth these stated duties. First, the petitloner fails to document what proportlon of the 
beneficlary's dutles would be managerial or executlve functions and what proportlon would be 
non-managenal and non-executive. The petitloner llsts the beneficiary's dutres as lncludlng both 
manager~al/execut~ve and administrative or operational tasks, but fails to quantlfy the time the beneficlary 
spends on them. This fallure of documentation 1s tmportant because several of the beneficiary's dally tasks, 
such as "attends demonstrations and conventions," and "conducts market research" and "promotes business 
and sales," do not fall dlrectly under traditional managerlal dutles as defined m the statute. For th~s reason, 
the AAO cannot determine whether the benefic~ary 1s pnmanly performing the duties of a manager. See 
IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). Addltlonally, ~t appears that the 
beneficlary is directly respons~ble for generating the servlces of the buslness, slnce counsel asserts that the 
beneficlary's engagement In market research and h~s promotion of buslness and sales generates 100% of the 
company's revenue. Th~s statement leads to the conclusion, absent evldence to the contrary, that the 
beneficlary 1s dlrectly responsible for all of the petltloner's business and sales, and thus 1s personally ensunng 
that the petltloner's product andfor services penetrate the U.S. market. An employee who prlmarlly performs 
the tasks necessary to produce a product or to provide services IS not considered to be employed In a 
managerlal or executlve capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988). 
EAC 03 044 55567 
Page 7 
Second, the record contains no additional independent evidence or explanation establishing that the 
beneficiary is truly working as .an executive. Merely claiming that the beneficiary is a manager or an 
executive is insufficient to establish eligibility in this matter. 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). , In addition,' coun.se17s 
statements on appeal are likewise unsupported by independent evidence. Without documentary evidence to 
, 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Ldureano, 19 I&N Dec. 1 (BIA 1983); Matter of Rarnirez-Sanchez, '17 I&N Dec. 503,506 (BIA 1980). 
The AAO further notesthat the record indicates that a subordinate staff of two or three employees reports to 
the beneficiary. In extension requests that involved the opening of a new office, as here, the petitioner is 
required under 8 C.F.R. $ 214.2(1)(14)(ii)(D) to submit 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. Although specifically requested by the director in the request for evidence, the petitioner failed to 
submit a statement addressing the staffing of the U.S. entity, arid therefore no evidence is contained in the 
record which would.indicate the nature and duties of each of these employees, or in fact clarify the exact 
number of employees overseen by the beneficiary. 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). 
With an incomplete record upon which to base the decision, the director next looked to the staffing issue and 
the manner in which the beneficiary interacted with the other employees, since the petitioner claimed that the 
beneficiary supervised and had authority over the other employees of the U.S. enti& under his f'personnel" 
duties. Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. 
Though requested by the director, the petitioner did not provide any information regarding the other 
employees of the US. entity. As previously stated, any failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 4 103.2(b)(14). Thus, the 
petitioner has not established that these employees possess or require an advanced degree, such that they 
couldbe classified as professionals. Nor has the petitioner shown that either of these employees supervise 
subordinate staff members or manage'a clearly defined department or function of the petitioner, such that they 
could be classified as managers or supervisors. Thus, the petitioner has not shown that the beneficiary's 
subordinate employees ari supervisory, professional,' or managerial, as required by section lbl(a)(44)(A)(ii) 
of the Act. 
Finally, in response to the director's conclusion that the beneficiary cannot be qualified as a manager or 
executive based on the minimal personnel employed by the U.S. entity, counsel asserts that "we have failed to 
find any provision in the statute, regulation or even other commercial law where a relevance of the position of 
Vice-President is required to be adjudicated on the basis of number of employees." Counsel correctly 
observes that a company's size alone, without talang into account the reasonable needs of the organization, 
may not be the determining factor in denying a visa to a multinational manager or executive. See 
EAC 03 044 55567 
Page 8 
'5 101(a)(44)(C) of the Act, 8 U.S.C. 1101(a)(44)(C). However, it is appropriate for Citizenship and 
Immigration Services (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). 
To establish that the reasonable needs of the organizatlon 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. '1n the present matter, the petitioner has not explained how the reasonable needs of the 
petitioning enterprise justify the beneficiary's performance of non-managerial or non-executive duties, such:as 
performing marketing duties and attending conferences and demonstrations. 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 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 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. Again, since the petitioner has failed to provide a concise and detailed description of the beneficiary's 
duties, the AAO cannot conclude that he will be engaged in primarily'managerial or executive tasks. . , 
The regulations provide that the requesting party must explain in writing why oral argument is necessary. 
Furthermore, Citizenship and Immigration Services has the sole authority to grant or deny a request for oral 
argument and will grant argument only in cases involving unique factors or issues, of hw that cannot be 
adequately' addressed in writing. See 8 C.F.R. 9 103.3(b). In this instance, counselidentified no unique 
factors or issues of law to be resolved. In fact, counsel set'forth no specific reasons why oral argument should 
be held. Moreover, the written record of proceedings fully represents the facts and, issues in this matter. 
Consequently, the .request for oral argument is denied. 
, . 
The petitioner has failed to establish that the beneficiary has been and will continue to be employed in a 
managerial or executive capacity, as required by '8 C.F.R. 3 214.2(1)(3)(iv). The regulation at 8 C.F.R. tj . 
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.. There is no provision in CIS regulations that allows 
for an extension of this one-year period. If the business is not sufficientiy'operational after one year, the 
petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has not reached the 
point that it can employ the beneficiary in a predominantly managerialror executive position. For this reason, 
the petition may not be approved., 
.Beyond the findings in the previous'decision, the remaining issue in this prockeding is whether the petitioner 
has established that a qualifying relationship still exists between the petitioning entity and the foreign entity 
. pursuant to 8 C.F.R. 9 214.2(1)(l)(ii)(G). Specifically, the only evidence alluding to a qualifying relationship 
is an unsigned share certificate for 2,500 shares without par value issued to the foreign entity. As general 
evidence.of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient evidence 
EAC0304455567 
Page 9 
to determine' whether a stockholder maintains ownership and control of a corporate entity. The corporate 
stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual 
shareholder meetings must also be examined to determine the total number of shares issued, the exact number 
issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control. 
Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. ' See Matter of Siemens Medical Systerns, Inc., 19 I&N Dec. 362 (BIA 1986). Without 
full disclosure of all relevant documents, CIS is unable to determine the.elements of ownership and control. 
In addition, the AAO notes that the petitioner filed IRS Form 1120-A, U.S. Corporation Short Form Income 
Tax Return in 2001 and 2002. Per the instructions for this form, a corporation may file the short-form return 
only if it does not have foreign shareholders that directly or indirectly own 25% or more of its stock. This 
insufficient and inconsistent evidence fails to demonstrate that a qualifying relationship still exists with,a 
foreign entity (and that the foreign entity will continue doing business during the alien's stay in the United 
States). As the previous decision will be affirmed, this issue need not be examined further. 
In addition, while not specificilly addressed by the director, the record does not contain sufficient evidence 
that the petitioner has been engaged in the regular, systematic and continuous provision of goods andlor 
services in the U.S. for the entire year prior to filing the petition to extend the beneficiary's status. See 8 
C.F.R. 4 214.2(1)(l)(ii)(H). The petitioner submitted a number of invoices suggesting that it has been 
importing and selling its goods on a regular basis. However, the petition authorizing the beneficiary to,open a 
new office was approved in December 2001. Thus pursuant to the tegulation at 8 C.F.R. 3 
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 no evidence that the petitioner was doing 
business from December 2001 through April 2002. For this additional reason, the petition may not be 
approved. 
In visa petition proceedings, the burden of proving e~i~bility for the benefit sought remains entirely with the 
petitioner. Section 291 of the A&, 8 U.S.C. § 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. 
.. . . .