remanded L-1A Case: Jewelry

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: WAC 04 162 51550 Office: CALIFORNIA SERVICE CENTER Date: ,&G j 2005 
IN RE: Petitioner 
Beneficia 
Petition: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEIlALF OF PETITIONER: 
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 ofice. 
*>- , obert P. Wiernann, Direct 
kf 
dministrative Appeals Office 
WAC 04 162 5 1550 
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 director's decision will be 
withdrawn and the matter remanded for further consideration and a new decision. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its manager as an L-1A 
nonimrnigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 3 1101(a)(15)(L). The petitioner is a corporation organized in the State of California 
that operates as an importer, distributor and retailer of body jewelry. The petitioner claims that it is the 
subsidiary of , located in Bangkok, Thailand. The beneficiary was granted a one- 
year period of stay in order to open a new office in the United States, and the petitioner now seeks to extend 
his 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 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 beneficiary 
will be employed in a managerial capacity. Counsel submits a brief and additional evidence in support of the 
appeal. 
To establish eligibility for the L-1 nonirnrnigrant 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 quaIifying 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. 5 214.2(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 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 alien's prior 
WAC 04 162 51550 
Page 3 
education, training, and employment qualifies him/her 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. 9 214.2(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 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 management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
managerial capacity. The petitioner does not contend that the beneficiary will be employed in an executive 
capacity. 
Section IOl(a)(44)(A) of the Act, 8 U.S.C. 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 
WAC 04 162 51550 
Page 4 
(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. 
The petition was submitted on May 14, 2004. Neither the petitioner nor counsel submitted a letter or 
statement describing the beneficiary's job duties. The petitioner submitted an organizational chart depicting 
the beneficiary as director of the "USA Marketing Office" with four subordinates identified as "sales," 
"accounts," "leasing specialist," and "banking." The chart shows that the sales employee oversees 
"independent retail outlets." The petitioner submitted its California Forms DE-6, Quarterly Wage and 
Withholding Report, for the fourth quarter of 2003 and the first quarter of 2004. The Forms DE-6 confirmed 
the full-time employment of the beneficiary and the sales employee. The petitioner aIso submitted letters from 
the individuals identified on the organizational chart as "accounts," "leasing specialist," and "banking." The 
letters confirm that the beneficiary has contracted the services of a fm to compile financial statements, 
reports, and income tax returns on behalf of the petitioner; that the beneficiary signed the petitioner's lease, 
and that the petitioner has a checking account. Finally, the petitioner submitted seventeen letters from 
"independent distributors" who have done business with the petitioner, all of which have the same text, 
stating in part: "Our original designs and orders are executed only after careful review and advisement from 
[the beneficiary] acting in his capacity as President of [the petitioner]." 
On July 3, 2004, the director denied the petition. The director determined that the petitioner did not establish 
that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
The director observed that the petitioner "only submitted letters from different stores acknowledging that the 
beneficiary is president of the U.S. entity . . .. The record lacks adequate supporting documentary evidence to 
define the beneficiary's duties as primarily executive or managerial." 
The director further noted that the fact that an individual manages a small business does not necessarily 
establish eligibility for classification as an inhacompany transferee in a managerial or executive capacity, and 
found that "the record indicates that a preponderance of the beneficiary's duties have been and will be diiectly 
providing the services of the organization and supervising three . . .non-professional employees." The director 
concluded that the petitioner has not demonstrated that that it bas reached or will reach a level of 
organizational complexity wherein the beneficiary would perform primarily managerial or executive duties on 
a day-to day basis, noting that the beneficiary will not be functioning at a senior level within an organizationaI 
hierarchy, supervising managerial, professional or supervisory personnel, or managing an essential function. 
On appeal, counsel for the petitioner asserts that the beneficiary qualifies for an extension of his L-1A status 
based on his management of an essential function of the petitioning company. Counsel provides the 
follouring description of the beneficiary's duties: 
The president has the overall responsibility for the establishment and conduct of [the 
petitioner's] business operations. He is in charge of marketing the business to prospective 
customers and managing the customer base. He controls the staff, and supervises the sales 
manager. . . . The beneficiary has created and has authority over the company's marketing 
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plan. . . .He, alone, has the ability to implement decisions. The beneficiary of the L-1A 
petition is a manager with management and control over the function of marketing the 
business to prospective customers, successful management of the customer base, and 
determining and establishng the petitioning company's product line. The beneficiary has 
management and control over the selection of manufacturers of the products sold through the 
petitioning company, discretion to select what jewelry designs are to be purchased from 
abroad for resale to the United States vendors, and overall design of the catalogs used to 
feature the designs that the manager has designated as the company's product line. 
Counsel provides examples of the beneficiary's achievements during the first year of operations, including 
organization of exhibits for trade shows and obtaining the business of over 60 vendors. Counsel cites an 
unpublished decision to support his claim that the beneficiary's responsibility for obtaining new clients should 
be considered a managerial duty. Finally, counsel notes that the beneficiary has hired a sales manager who 
serves as a first-line supervisor and reports to the beneficiary. 
Upon review, the director's decision will be withdrawn and the matter remanded for further consideration and 
a new decision. 
The regulation at 8 C.F.R. $ 103.2(b)(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 . . . . [I]n 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 following the opening of a 
new office, the petitioner was required to submit a significant amount of supporting documentation pursuant 
to 8 C.F.R. 8 214.2(1)(14)(ii). 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 beneficiary's actual job duties. However the 
director did not point to any evidence of 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. 
5 103.2(b)(8); see also Memo. From William R. Yates, Associate Director, Operations, U.S. Citizenship and 
Immigration Services, to Regional Directors, et al, Requestsfor Evidence (RFE) and Notices of Intent to Deny 
(NOID), HQOPRD 70/2 (February 16,2005). 
Accordingly, as the evidence of record does not directly reflect that the petitioner or beneficiary is ineligible 
for the benefit sought, 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. 5 103.2(b)(8); 8 C.F.R. 3 
214.2(1)(14)(i). The AAO agrees that the evidence of record raises underlying questions regarding eligibility. 
WAC 04 162 51550 
Page 6 
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). 
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. 3 214,2(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. The petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. The initial petition did not include a 
description of the beneficiary's job duties. The petitioner, through counsel, has provided a brief statement 
regarding the beneficiary's job duties on appeal. While counsel has described the beneficiary's duties and 
authority in general terms, the job description does not show what actual tasks the beneficiary will perform on 
a daily basis. The petitioner should provide more detail regarding how the beneficiary will spend his time, 
including a breakdown of the percentage of his weekly hours that will be devoted to his various duties. 
By way of exampIe, general statements such as the beneficiary is "in charge of marketing of the business to 
prospective customers and managing the customer base" are not clearly managerial duties as defined by 
section IOl(a)(44)(A) of the Act. The petitioner should explain in detail the specific tasks the beneficiary 
performs as part of his marketing responsibilities, whether and how the beneficiary works with subordinate 
employees on these tasks, as well as the specific efforts the beneficiary undertakes to "manage" the customer 
base. The minimal evidence submitted suggests that the beneficiary may be directly responsible for 
performing non-qualifying duties such as personally marketing the petitioner's products and services and 
taking and filling orders for products. 
Counsel claims on appeal that the beneficiary qualifies for an extension of his L-IA status as a "function 
manager." The term "function manager" applies generally when a beneficiary does not supervise or control 
the work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section lOl(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is 
managing an essential function, the petitioner must furnish a comprehensive description of the beneficiary's 
duties that identifies the function with specificity, articulates the essential nature of the function, and 
establishes the proportion of the beneficiary's daily duties attributed to managing the essential function. 
8 C.F.R. $ 214,2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than perfoms the duties related to the function. 
For example, if the petitioner indicates that the beneficiary is the only employee within its organization 
responsible for performing marketing duties, his position ~~ould be more akin to a marketing representative 
than a function manager. 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. Eoyang, Z,td. v. 
I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Corn. 1988)). 
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 show that the beneficiary primarily performs these specified responsibilities and does not spend a 
WAC04 16251550 
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majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). While it is permissible for the beneficiary to perform some non- 
qualifying duties, the petitioner bears the burden to establish that the majority of his time will be devoted to 
managerial or executive tasks. The record as presently constituted does not contain sufficient detail in order 
for Citizenship and Immigration Services (CIS) to detedne whether the beneficiary wiIl be employed in a 
primarily managerial capacity. 
The petitioner claims that the beneficiary will have supervisory authority over subordinate employees. Thus, 
it is evident that the beneficiary must commit a portion of his time to supervising them. In order for the 
petitioner to establish that the beneficiary's supervisory tasks constitute managerial duties under section 
101(a)(44)(A) of the Act, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See section 101(a)(44)(A)(ii) of the Act. A managerial or executive employee 
must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, 
unless the supervised employees are professionals. See Matter of Church Scielztology International, 19 I&N 
Dec. 593,604 (Comrn. 1988). 
If the beneficiary's subordinates are deemed not to be supervisory, professional, or managerial, the beneficiary 
may still qualify as a managerial or executive employee. However, time he invests in supervising them will 
not be considered time acting in a managerial or executive capacity. Again, the petitioner bears the burden of 
showing that the majority of the beneficiary's time will be devoted to managerial or executive tasks. 
In the instant case, the petitioner has provided evidence that it employed a sales employee at the time the 
petition was filed. The petitioner should provide a complete list of individuals that the beneficiary supervised 
at the time the time of filing the petition, including a description of each employee's duties, educational 
background, and supervisory responsibility, if any. If the petitioner had additional staff employed on a 
commission or contract basis, the petitioner must provide their job titles and duties, evidence of payments to 
these employees, and indicate the amount of time they devote to the business in order for the AAO to 
accurately assess the petitioner's staffing levels. The record does not establish who performs the petitioner's 
day-to-day operational duties such as routine sales and marketing tasks, clerical and administrative tasks such 
as preparing correspondence and invoicing, purchasing, placing orders for products from abroad, and 
managing accounts payable and receivable. The record indicates that the petitioner operates a retail cart in a 
shopping mall, and also has a web site. The petitioner should indicate who is responsible for performing day- 
to-day duties associated with these two components of its business. 
It is emphasized that the petitioner must establish eligibility at the time of filing the nonibgrant. 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 Colp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Evidence and explanation that the petitioner submits must show eligibility as of the filing date, May 14, 2004. 
Documentation of business activity and hiring that occurred after the date of filing is not probative of the 
petitioner'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 petitioner meets the requirements for L-1A classification as of the date 
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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 3, 2004 is withdrawn. The matter is remanded for 
further action and consideration consistent with the above discussion and entry of a new decision.