remanded L-1A Case: Furniture Distribution

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U.S. Department of Homeland Security 
20 Massachusetts Ave., NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
"1 
File: WAC 04 176 50400 Office: CALIFORNIA SERVICE CENTER Date: ",I,+ 
? 200D. 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101(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 fbrther inquiry must be made to that office. 
/p&+ 
obert P. Wiemann. Director 
/I qdmmlstrative ~~~eals Office 
WAC 04 176 50400 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the 
director's decision and remand the petition to the director for further consideration and entry of a new 
decision. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its vice president, 
business development as an L-1 A nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a California 
corporation engaged in the import and distribution of hand-crafted furniture. The petitioner claims that it is 
the subsidiary of Evergreen International Limited, located in Gurgaon, India. The beneficiary was initially 
granted one year in L-1A classification in order to open a new office in the United States and was approved 
for a one-year extension of stay. The petitioner now seeks to extend the beneficiary's status for an additional 
one-year period. 
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 petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the record 
contains sufficient evidence describing the petitioner's operations and clearly establishes that the beneficiary, 
as the head of the petitioner's U.S. operations, is employed in a qualifying managerial or executive capacity. 
Counsel submits a 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 10 1(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. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
WAC 04 176 50400 
Page 3 
(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 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. 9 1101(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 
(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. fj 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 malung; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
WAC 04 176 50400 
Page 4 
The petition was filed on June 4, 2004. In a letter dated June 3, 2004 the petitioner stated that it employs six 
employees in the United States. With respect to the beneficiary's duties as vice president, business 
development, the petitioner stated that she "is currently in the process of developing a network of distribution 
centers and personnel to market our products," and has the following responsibilities:' 
Beneficiary is responsible for achieving the desired results within an allocated budget. She 
reviews business development proposals and determines time frames, funding limitations, 
procedures for accomplishing business plan objectives including: staffing requirements, and 
allotment of available resources to various phases of promoting the products of the company. 
She has already established a work plan to monitor the staffing requirements of our 
operations in the U.S. and will be involved in interviewing and hiring managers, supervisors 
and staff to manage our showrooms and distribution centers. 
The petitioner submitted its California Form DE-6, Quarterly Wage and Withholding Report, for the first 
quarter of 2004, which confirmed the full-time employment of six employees other than the beneficiary. The 
petitioner also provided a proposed organizational chart indicating that the beneficiary supervises a vice 
president of finance, who in turn supervises a bookkeeper, as well as two area managers, who each supervise 
"distributors." 
The director denied the petition on July 22, 2004, concluding that the petitioner had not established that the 
beneficiary would be employed by the United States entity in a managerial or executive capacity. The 
director observed that the petitioner had failed to provide job descriptions for the beneficiary's subordinates 
and concluded that the beneficiary "is performing, at most, as a first-line supervisor of non-professional 
employees, rather than as a manager or executive." The director also found that the petitioner "has failed to 
describe the employer's business activities in a manner that allows for a clear understanding of the products 
and services that are provided by the employer to its customers and how the beneficiary's position fits into its 
organizational hierarchy." The director concluded that the beneficiary would be directly providing the 
services of the organization and supervising three non-professional employees. 
On appeal, counsel for the petitioner objects to the director's conclusion that the petitioner failed to provide a 
clear description of its business activities. Counsel emphasizes that the petitioner has "clearly explained that 
[the beneficiary] will be the overall head of the US operation" and "sufficiently explained and described the 
Managerial andlor Executive functions of the Petitioner." Counsel further describes the beneficiary's duties 
as: 
She has independent supervisory authority over the US subsidiary. The Beneficiary is 
currently in the process of negotiating several contracts with large distribution networks, she 
will plan[,] direct and co-ordinate activities of designated business opportunities to ensure 
that goals or objectives of each opportunity is accomplished within the constraints of a given 
time schedule. . . . She will, as a part of her duties, be consulting with various professionals, 
1 
The AAO notes that the third page of the petitioner's four-page June 3, 2004 letter, which apparently 
includes a portion of the beneficiary's job description, is not included in the record. 
WAC 04 176 50400 
Page 5 
instructing such professionals such as lawyers, accountants and business analysts which she 
will hire and engage on a routine basis to assist her in expanding and increasing the business 
of the Petitioner. 
In order to "plan[,] direct and co-ordinate activities of the business", she has perforce to 
consult with and instruct various professionals and specialists such as lawyers and 
accountants to do the same. 
In order to "achieve the business goals within the allotted budget", she has to engage[,] 
instruct and employ accountants and business professionals to advice [sic] and instruct her on 
best financial policies for the Petitioner. 
In order to "review business development proposals and determine time frames etc" she has 
perforce the need to engage suitable professionals, instruct them and take their advice so that 
she can effectively mange [sic] and provide impetus for sustained growth. 
Further she will, as the business necessitates, be hiring in-house lawyers, accountants, 
business professionals and other "professionals" to expand the business. 
Upon review, the AAO will withdraw the director's decision and remand the petition to the director for 
fbrther consideration and entry of a new decision. 
The regulation at 8 C.F.R. 5 103.2@)(8) states the following: 
If there is evidence of ineligibility in the record, an application or petition shall be denied 
on that basis notwithstanding any lack of required initial evidence . . . . [Ijn other 
instances where there is no evidence of ineligibility, and initial evidence or eligibility 
information is missing or the Service finds that the evidence submitted either does not 
fully establish eligibility for the requested benefit or raises underlying questions 
regarding eligibility, the Service shall request the missing initial evidence, and may 
request additional evidence . . . . 
As the present petition is a request for an extension of the beneficiary's L-1A status, the petitioner was not 
required to submit supporting documentation pursuant to 8 C.F.R. 5 214.2(1)(14)(i). The director examined 
the petitioner's evidence and determined that the petitioner failed to establish eligibility. The director's 
decision was based in part on a finding that the petitioner did not submit sufficient documentation regarding 
the staffing of the organization and the beneficiary's role within the organizational hierarchy. However the 
director did not point to any evidence of clear ineligibility that would justify his decision to deny the petition 
without first requesting additional evidence or issuing a notice of intent to deny the petition. See 8 C.F.R. 
3 103.2@)(8); see also Memo. Associate Director, Operations, USCIS, to Regional 
Directors, et al, Requests for Evidence (RFE) and Notices of Intent to Deny (NOID), HQOPRD 7012 
(February 16,2005). 
WAC 04 176 50400 
Page 6 
Accordingly, as the evidence of record does not directly reflect that the petitioner or beneficiary is ineligible, 
the director should not have denied the petition based on a lack of evidence without first requesting additional 
explanation and documentation. See 8 C.F.R. 9 103.2(b)(8); 8 C.F.R. 9 214.2(1)(14)(i). The AAO agrees that 
the evidence of record raises underlying questions regarding eligibility. In such an instance, the director 
"shall request the missing initial evidence, and may request additional evidence . . . ." 8 C.F.R. 5 103.2(b)(8). 
The job description provided by the petitioner provides little insight into the true nature of the tasks she will 
perform in the United States. For example, the petitioner indicated that the beneficiary "will plan direct and 
co-ordinate activities of designated business activities to ensure that goals or objectives of each opportunity is 
accomplished" and "achieve the business goals within the allotted budget." These general statements do not 
describe the actual tasks the beneficiary will perform on a daily basis. The petitioner identified the 
beneficiary's scope of authority, such as her discretion over financial decisions, yet it failed to account for 
how she will actually spend her time in the United States and what specific efforts she will take to achieve the 
petitioner's goals. The petitioner should provide a comprehensive, specific description of the duties performed 
by the beneficiary, including a breakdown of the percentage of time she will devote to those duties on a 
weekly basis, and a description of the duties she performs on a "typical day." 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. lNS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The provided job descriptions do not allow the AAO to determine 
the actual tasks the beneficiary will perform, such that they can be classified as managerial or executive in 
nature, nor do they adequately indicate what proportion of the beneficiary's time will be devoted to qualifying 
duties. 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those of his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. 
In addition to noting that the petitioner's job description failed to adequately describe the nature of the 
beneficiary's role within the company, the director found that the beneficiary would supervise only three non- 
professional employees. The director apparently relied on the petitioner's organizational chart, and, as no job 
descriptions were provided for the beneficiary's subordinates, assumed that the beneficiary's subordinates are 
not professionals, supervisors, or managers. However, the petitioner's Form DE-6, Quarterly Wage and 
Withholding Report for the first quarter of 2004 indicates that the petitioner had six full-time employees other 
than the beneficiary in the quarter immediately preceding the filing of the petition. This evidence suggests that 
the organizational chart submitted with the petition did not represent the petitioner's actual staffing at the time 
of filing. The petitioner should submit a detailed organizational chart reflecting its staffing as of June 2004, 
including the names, job titles, educational qualifications, annual salary and source of remuneration for all of 
its employees, along with its Form DE-6 for the second quarter of 2004. The petitioner should also provide a 
WAC 04 176 50400 
Page 7 
description of the job duties performed by each employee, and clearly indicate the reporting structure within 
the company. In addition, the petitioner should submit evidence of payments made to any contracted 
employees, such as the lawyers, accountants and the "business professionals" referenced by counsel on 
appeal, and indicate the nature and scope of the services they provide to the petitioning company. 
It is emphasized that the petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. A visa petition may not be approved at a future 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). 
Evidence and explanation that the petitioner submits must show eligibility as of the filing date, June 4, 2004. 
Documentation of business activity and hiring that occurred after the date of filing is not probative of the 
petitioner's or beneficiary's eligibility and will not be considered. 
In this matter, the evidence of record raises underlying questions regarding eligibility. Further evidence is 
required in order to establish that the beneficiary meets the requirements for L-1A classification as of the date 
of filing the petition. The director's decision will be withdrawn and the matter remanded for further 
consideration and a new decision. The director is instructed to issue a request for evidence addressing the issues 
discussed above, and any other evidence he deems necessary. 
ORDER: The decision of the director dated July 22,2004 is withdrawn. The matter is remanded for further 
action and consideration consistent with the above discussion and entry of a new decision.