remanded L-1A Case: Retail/Wholesale

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rm. ~3042 
Washington, DC 20529 
FILE: 
IN RE: 
SRC 03 123 50276 Office: TEXAS SERVICE CENTER Date: JUH 1 6 ZOO5 
Pet~t~oner: 
Beneficla 
PETITION: Petlt~on for a Non~mmlgrant Workcr Pursuant to Sect~on 101(a)(15)(L) of the Immigration 
and Natlonallty Act, 8 [J.S.C. 6 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. 
Admlnlsh-atne iippeals Office 
SRC 03 123 50276 
Page 2 
DISCUSSIOY: The nonimmigrant vlsa pet~tlon was denled by the D~rector, Texas Service Center. The 
matter 1s now before the Admmlstrat~ve Appeals Office (A,40) on appeal. The d~rector's dec~sion shall be 
withdrawn and the matter remanded for entry of a new dec~s~on. 
According to the documentary ev~dence contained in the record, the petltloner was Incorporated 
February 14,2003 and claims to be in the retall/wholesale business. The petitioner claims to be a subs~diary 
of located in India. It seeks to employ the beneficiary temporarily in the United States as the 
president of its new office. The director determined that the petitioner failed to establish that the beneficiary 
had been employed by the fore~bm entity for one continuous year within the three years precedlng the fil~ng of 
the pet~t~on. The petltion was filed on March 27, 2003. 
On appeal, collnscl d~sagrees wllh the director's dec~s~on and asserts that the evidence IS sufficient to 
demonstrate that the beneficiary had been employed by the fore~gn entlty for one continuous year wlthln the 
three years preced~ng the filing ofthe new office pet~t~on. 
To establ~sh I,-] el~gib~lity under sectlon 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 101 (a)(15)(I.), the pet~tioner must demonstrate that the beneficiary, w~thln three years precedlng 
the beneficmy's appl~catlon for adm~ss~on lnto the Un~ted States, has been employed abroad m a qual~fying 
manager~al or executive capac~ty or In a capaclty ~nvolvlng special~zed knowledge, for one continuous year 
by a qual~fylng organ~~atlon, and seeks to enter the Un~ted States temporarlly In order to contlnue to render 
hls or her serv~ces to the same employer, or a subsld~ary or affil~ate thereof, in a capacity that is managerial, 
executive, or ~nvolves spec~al~zed knowledge. 
The regulat~on at 8 C.F.R. 4 214.2(1)(1)(1i) states, in part: 
I~itruconipm~ transferee means an alien who, within three years precedlng the time of h~s or her 
appl~catlon for admission lnto the Un~te States, has been employed abroad continuously for one 
year by a fim~ or corporat~on or other legal entity or parent, branch, affil~ate, or subs~dlary 
thereof, artd who weks to enter the United States temporanly In order to render h~s or her 
services to a branch ofthe same employer or a parent, affiliate, or subsidiary thereof m a capaclty 
that is managerial, execut~ve, or lnvolves spec~al~zed knowledge. 
The regulation at 8 C.F.R. 4 214.2(1)(3) states that an lnd~v~dual petitlon filed on Form 1-129 shall be 
accompan~ed by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as de~ihed in paragraph (l)(l)(ii)(~) of this section. 
(ii) ~vidence that the alien will be employed in an executive, managerial, or specialized 
knowledge: capacity, including a detailed description of the services to be performed. 
(111) Evldcnce that the allen has at lcast one cont~nuous year of full-time employment 
abroad w~th a qualif!/ing organlzatlon w~th the three years precedlng the fillng of the 
petltlon. 
(IV) Ev~dence that the allen's prlor year of employment abroad was m a posltlon that was 
managerial, executlvc or ~nvolved speclal~zed knowledge and that the allen's prlor 
SRC 03 123 50276 
Page 3 
education, train~ng, and employnent qual~fies hider to perform the intended serves 
in the Un~ted States; however, the work In the Un~ted States need not be the same 
work which the alien performed abroad. 
The regulation at X C.F.R. 4 214.2(1)(3)(v) 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) Suffictent phys~cal premises to house the new office have been secured; 
(B) The benefic~ary has been employed for one continuous year in the three year penod 
precedlng the filing of the pet~tion In an executive or managenal capaclty and that the 
proposed employment ~nvolved executive or managerla1 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 managenal position as defined in paragraphs< (I)(l)(ii)(B) or 
(C) of this section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organrzational structure, and its financial goals; 
(2) 7he size of the Unlted States Investment and the financial abillty of the 
fore~gn entity to remunerate the beneficiary and to commence dolng 
bus~ncss In the Unlted States; and 
(3) The organ~zabonal structure of the fore~gn ent~ty. 
The Issue In thls proceeding is whether the pet~tioner has submitted suffic~ent evidence to establ~sh that the 
benefic~ary had been employed by the foreign ent~ty for one continuous year within three years preced~ng the 
fillng of the pet~tlon. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1 101(a)(44)(A), prov~des: 
The term "managcnal capac~ty" means an assignment within an organizat~on In wh~ch the 
employee primarily- 
(1) Manages the organ~zatlon, or a department, subdivision, funct~on, or 
component of the organization; 
(11) Superv~ses and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organ~zat~on, or a department or subd~vls~on of the organ~zat~on; 
(111) If another employee or other employees are directly supervised, has the 
author~ty to h~re and fire or recommend thosc as well as other personnel 
act~ons (such as promotion and leave authorization), or ~f no other 
SRC 03 123 50276 , 
Page 4 
employee IS d~rectly supervised, functions at a senlor level withln the 
organizational hierarchy or with respect to the funct~on managed; and 
(1~) Exercises discretion over the day-to-day operat~ons of the activlty or 
function for whlch the eniployee has authority. A first-11ne supervisor is 
I not cons~dered to be actlng in a managenal capacity merely by vlrtue of 
the supervisor's supervisory dut~es unless the employees supervised are 
professional. 
Section 101(a)(44)(R) of the Act, 8 U.S.C. 8 1 101(a)(44)(B). prov~des: 
The term "executive capacity" means an asslpment withln an organ~zation In which the 
employee primarily- 
(1) Directs the management of the organization or a major component or 
funct~on of the organizarlon; 
(11) Establ~shes the goals and policies of the organizat~on, component, or 
function; 
(iii) . Exercises wide latitude in discretionary decision-making; and 
(1~) Recelves only general supervlslon or dlrectlon fiom higher level 
executlvcs, the board of directors, or stockholders of the organlzatlon. 
The petitioner initially described the beneficiary's duties with the foreign entity as: 
Prlor to coming to the U S as H-4. the beneficiary was employed by the petitioner's 
subsldlary in India as its managlng director The beneficlary was responsible for supervising 
subordinate employees who prepare marketing and sales strategy; reviewing and analyzing 
data relat~ng to market cond~t~ons and sales reports; establi5hing and implementing polic~es to 
manage and achleve marketing goals; reviewing and approving budgets prepared by 
controller and chartered accountants and directing inanagement of the company. 
The dlrector determined that the petitloner had not subm~tted sufficient ev~dence to establish that the 
beneficiary had been employed by a foreign entity for one continuous year wlthin three years pnor to fillng 
the petltlon. The director subsequently requested that the petitioner subm~t "the offic~al payroll records from 
M/S Little Italy showlng that the beneficlary was employed for one continuous year between March 27,2000 
and March 27,2003 " 
In response to the d~rector's request for add~tional evidence, the pet~tloner submitted a letter dated 
April 12, 2003, from the forcl~m entlty in which ~t is stated that the beneficiary had been employed by the 
foreign entlty from Junc I, 2000, to Jul:r I, 2001 as manager Counsel for the petitloner responded to the 
d~rector's request for add~tional ev~dence by stating that the beneficiary had been employed by the forelgn 
entity from June 1, 2000 to July 1. 2001 lhe petltloncr submitted copies of the forelgn entlty's payroll 
records coverlng the per~od from June 2000 to Apr~l 200 1. 
SRC 03 123 50276 
Page 5 
The director denied the petition after determining that the evidence submitted demonstrated that the 
beneficlary was employed by the fore~gn ent~ty from June 2000 to Aprll 2001, and then entered the United 
States as an H-4 non-immigrant July 10, 2001 The dlrector concluded that the benefic~ary had not been 
employed full-t~me b$ a qual~fying foreign entlty for one continuous year within three years of the filing of 
the petition. 
On appeal, counsel asserts that due to a simple oversight, the forelgn enttty's salary register for May 2001 and 
June 2001 was not lncluded in the evldencc submitted In response to the director's request for additional 
evidence. On appeal, the pet~tioner submits a copy of the foretgn entity's salary register for June 2000 to July 
200 1. 
The director's fallurc to adequately address the issue of the beneficlary's managerial or executive capaclty at 
the foreign entity In her request for addittonal evldence, dated Apnl 8, 2003, and in her Notice of Dec~sion, 
dated May 12, 2003, warrants a withdrawal of her declston to deny the petltlon with respect to this issue. The 
purpose of the request for evldence is to elicit addit~onal ~nfonnation that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(b)(8) As the dirictor was vague in her request for 
addltional evldence, the petitioner reasonably presumed that the evidence it had submitted was sufficient. 
The pet~tloner's presumption was reasonable, given the purpose of a request for evidence as descnbed at 
8 C.F.R. 5 103 2(b)(8) 
The d~rector must afford the petitloner reasonable tlme to provide evldence pertinent to the lssue of the 
beneficlary's cla~med managerlal or executlve capaclty while employed by the foreign entity, and any other 
evidence the dlrector may deem necessary. 'I he director shall then render a new decision based on the 
evidence of record as it relates to the regulatory requirements for eltg~bll~ty. 
Beyond the decislon of the director, a related issue IS whether the petlt~oner has established that ~t has secured 
sufficlent physlcal premlses to house the new office. The petitloner clalms to be In the wholesale and retall 
business. The petltloner submitted a copy of ~ts sublease agreement, the lease agreement, and an assignment 
of lease. In thls matter, the petitioner has not described its anticipated space requirements for tts business. 
The main lease agreement states In part: "Use of Premises - Subtenant w~ll only use the premtses for a donut 
shop and for uses normally Incident to that purpose " In addltton, there 1s noth~ng In the record that shows 
that the beneficiary obtained the sub-landlord's prior written consent before assigning the sublease to the U.S. 
entity Rased on the record, it cannot be concluded that the petitloner has secured sufficient space to house 
the new office. Another lssue to be addressed 1s whether the petitioner has subm~tted sufficlent evidence to 
demonstrate that a qualifying relat~onsh~p exists between the petitioning entlty and a forelgn entity pursuant to 
8 C.F.R. 9 214 2(1)(1)(11)(G) In the instant matter, the petttioner submitted a copy of a stock certificate Issued 
by the U.S. entity to the foreign entity in the amount of 1,000 shares. However, the stock certificate 1s 
undated and there has been no Independent documentary evtdence, such as a stock ledger, not~ce of purchase, 
meet~ng minutes, or canceled checks. submitted to authent~cate the certificate For these addltional reasons, 
the petition may not be approved 
Although not d~rectly addressed by the'dlrector, a remaining Issue 1s whether there has been sufficient 
evldence submitted to demonstrate that the beneficlary woula bc employed by the i1.S. entlty pnmanly in a 
managenal or executlve capacity a:; defined at section 101(a)(44) of the Act, or that the organizat~on will be 
able to support such a,posltlon within one year of operatton. The petitioner descnbed the beneficiary's 
proposed dut~es as. responslblc for h~nng and fir~ng managers, supervlslng subordinate employees, 
establlsh~ng and implement~ng pollcles and goals, revlewing linanc~al reports, and managlng the company. 
SRC 03 123 50276 
Page 6 
The petitloner also stated that the beneficiary would exerclse wlde d~scret~on and lat~tude In the performance 
of h~s dutles and would receive minlmum supervlslon from other company executives. Conclusory assertions 
regarding the beneficiary's employrnent capac~ty are not sufficient. Merely repeating the language of the 
statute or regulations does not sat~sfy the petitloner's burden of proof. Fedzn Bros. Co., Ltd. v. Sava, 
724 I;. Supp. 1 103, 1 108 (E.D.N.Y. 1989), uff'd, 905 F 2d 41 (2d. Clr. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). For this addltronal reason, the petlt~on may not be approved. 
As always, in visa petlhon proceedings, the burden of proving el~glb~l~ty for the benefit sought remalns entlrely 
with the pet~tloner. Sect~on 291 of the Act, 8 U.S.C. 1361. The petitioner has not sustained that burden. 
ORDER: The director's dec~slon of May 12, 2003 is withdrawn. The matter 1s remanded to the 
director for entry of a new decision, which ~f adverse to the petlboner, IS to be certified 
to the Administrative Appeals Office for revlew.