remanded L-1A Case: Retail Trade And Investment

US. Departmeot of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
. , 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
IN RE: 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101 (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. 
Ro - ert P. Wiemam, Dire or 
Administrative Appeals Office 
0 
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Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The decision will be remanded for 
entry of a new decision. 
Accordine to the evidence contained in the record the vetitioner was established in 2002, and is described as a " 
retail trade and investment business. The petitioner claims to be a subsidiary of - 
located in Karachi, Pakistan. The petitioner declares an estimated two employees and an estimated gross 
annual income of $180,000.00. It seeks to employ the beneficiary temporarily in the United States as the 
president of its new office for three years, at an annual salary of $35,000.00. 
The director determined that the petitioner failed to establish that the beneficiary had been employed by the 
foreign entity primarily in a managerial or executive capacity. 
On appeal, counsel disagrees with the director's determination and asserts that the beneficiary has been 
employed by the foreign entity primarily in a managerial or executive capacity. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 8 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 qualifying 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. 4 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for adrmssion into the United States, has been employed abroad continuously for one 
year by a fm 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. 4 214.2(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 desaiption 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 with 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 himker 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. 8 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is coming to 
the United States as a manager or executive to open or to be employed in a new office in the United States, the 
petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) or 
(C) of this section, supported by information regarding: 
(1) The proposed nature of the ofice describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunexate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
The issue in this proceeding is whether the petitioner has submitted sufficient evidence to show that the 
beneficiary has been employed by the foreign entity primarily in a managerial or executive capacity. 
Section 101(a)(#)(A) of the Act, 8 U.S.C. § 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(1) 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 
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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 supasor 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 lOl(a)(#)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(1) Directs the management of the organization or a major component or 
hction of the organization; 
(i i) Establishes the goals and policies of the organization, component, or 
function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(19 Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In the petition the petitioner described the beneficiary's job duties with the foreign entity as: 
Directed and coordinated activities of the organization and formulated and administered 
company policies: In consultation with the management; developed long range goals and 
objectives of the company. Directed and coordinated activities of managers and employees 
in the production, operations, purchasing and marketing departments for which responsibility 
was delegated to further attainment of goals and objectives. Reviewed and analyzed 
activities, costs, operations, and forecast data to determine progress toward stated goals and 
objectives. Discussed with management and employees to review achievements and discuss 
required changes in goals or objectives of the company. 
In a letter of support, dated January 18, 2003, the beneficiary stated that as owner and president of the foreign 
entity, she has "managed and steered the business to new heights." 
The petitioner submitted copies of the foreign entity's Business Resolution appointing the beneficiary as 
president of the U.S. entity; the government of Pakistan; a membership 
certificate from the P abstan Income Tax Forms; bank statements fiom the 
Sales Tax Entry; and commercial invoices and a bill of 
lading. 
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The director determined that the evidence submitted was insufficient to determine the beneficiary's 
employment capacity with the foreign entity, and thereafter requested that the petitioner submit evidence that 
the beneficiary was employed by the foreign entity in a managerial or executive capacity. 
In response to the director's request for additional evidence, the petitioner stated in part: "[the beneficiary] is 
the principal shareholder and president of [the foreign entity]. . .[the beneficiary] was engaged in an executive 
capacity . . . from 1996. She is compensated by share of profits. By virtue of her ownership interests, [the 
beneficiary] performed in an executive capacity for the parent company." 
The director determined in denying the petition that the evidence submitted was insufficient to establish that 
the beneficiary had been employed by the foreign entity primarily in a managerial or executive capacity. The 
director stated, "Ownership of 9-10% of a company's stock does not establish . . . that the beneficiary was 
employed in an executive capacity. There is no evidence that the beneficiary was actually employed by the 
foreign entity other than receiving profit shares." 
On appeal, counsel disagrees with the director's decision and asserts that the director misinterpreted the 
documents submitted in that the'- not the "' company 
documents should have been considered in rendering her decision. Counsel further asserts that owners hi^ of 
9-10 percent of the company's stock refers to "-' and not '" 
In review of the evidence submitted and the arguments of counsel, it appears that the director, in rendering her 
decision, reviewed documents pertaining to the "' which the record shows is not the 
foreign entity to be examined. The petitioner is asserting that the ' 
beneficiary previously, so documents pertaining to the 
determining whether the beneficiary qualifies for the benefit sought. Therefore, the director's decision is - 
withdrawn. The matter will be remanded to the director for issuance of a new decision. The director may 
request any additional evidence deemed necessary to assist her with the determination. As always in these 
proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: The matter is remanded to the director for entry of a new decision, which if adverse to the 
petitioner, is to be certified to the Administrative Appeals Office for review.