sustained L-1A Case: Garment Import/Export

U.S. Department of IIomeland Security 
20 Massachusetts Ave.,N.W., Rm. 3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
File: EAC 03 188 54964 Office: VERMONT SERVICE CENTER Date: SEP 2 6 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. €J 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. 
'L---$~ Fobert P. Wiemann, C ief 
li 
Administrative Appeals Office 
EAC 03 188 54964 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will sustain the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation organized in the State of New York that is engaged 
in import and export of garments. The petitioner claims that it is the subsidiary of H&H Corporate Buying 
House, located in New Delhi, India. The petitioner seeks to employ the beneficiary as the president and chief 
executive officer of its new office in the United States for a one-year period. 
The director denied the petition concluding that the petitioner had not established that the beneficiary would 
be employed in a primarily managerial or executive capacity within one year. 
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 sufficient 
evidence was submitted to establish that the beneficiary will be primarily performing executive and 
managerial duties within one year of obtaining classification as an L-1A nonimmigrant intracompany 
transferee. Counsel contends that the director erred in determining that the beneficiary's proposed 
subordinates will not be managerial, professional or supervisory. Counsel notes that the organization has 
already grown to a staff of five employees within the first three months of operations and is in need of a 
president to perform executive and managerial functions. Counsel submits a brief and additional evidence in 
support of the appeal. 
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. 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 
(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. 
EAC 03 188 54964 
Page 3 
(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 education, training, and employment qualifies himlher 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)(3)(~) further provides 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 of 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 (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office 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 remunerate the beneficiary and to commence doing 
business in he United States; and 
(3) The organizational structure of the foreign entity. 
The issue in the present matter is whether the petitioner has established that the beneficiary will be employed 
by the U.S. entity in a primarily managerial or executive capacity within one year. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 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; 
EAC 03 188 54964 
Page 4 
(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. 9 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 making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
The nonirnrnigrant petition was filed on June 12, 2003. In a June 10, 2003 letter submitted with the initial 
petition, the petitioner indicated that as president and CEO of the U.S. company, the beneficiary will be 
responsible for the development and expansion of the U.S. market, managing and directing the operations of 
the company, implementing a system integrating purchasing, inventory, sales and accounting information, and 
ensuring adherence to the policies, practices and strategies of the parent company in India. In addition, the 
petitioner submitted a detailed description of the beneficiary's proposed duties. 
The petitioner also submitted a proposed "short-term" organizational chart for the U.S. company showing that 
the beneficiary will oversee the following subordinates: a marketing manager who would in turn supervise 
marketing and sales representatives and production/technical advisors; a finance and administration manager, 
who would in turn supervise finance and accounts, administration and warehouse staff; and an office 
secretarylreceptionist. The petitioner submitted evidence that it had leased an officelshowroom and 
warehouse space from which to operate the business. 
EAC 03 188 54964 
Page 5 
On June 22, 2003, the director issued a request for additional evidence, and instructed the petitioner to submit: 
(1) a comprehensive business plan for the U.S. company; (2) evidence to show how the new company will 
grow to be of sufficient size to support a managerial or executive position, and demonstrating that the 
beneficiary will be relieved from performing the non-managerial day-to-day operations involved in providing 
a service; and (3) a description of the staff the company intends to hire during the first year of operations, 
including the position titles and educational requirements for each proposed position. 
In a response dated July 28, 2003, counsel for the petitioner stated that the U.S. company has already hired 
two full-time employees, expects revenues in excess of $4 million during the first year of operations, and has 
already obtained orders for apparel from major department store chains. Counsel provided that the company 
will employ a president and CEO, sales and marketindgeneral manager, accounts and finance manager, 
secretary/executive assistant, designer, merchandiser, marketing representatives, warehouse manager and 
warehouse clerks within one year. 
The petitioner also stated that the beneficiary's responsibilities will be "executive level only" within one year 
and will include developing corporate strategy, long term planning, establishment of goals, profitability 
analysis and assessment of productivity of the business's various divisions. The petitioner further provided 
that the beneficiary's key areas of responsibility will be to establish and expand business relationships, 
oversee the entire production process, hold weekly sales, production and operations meetings, and establish 
the company's organizational hierarchy and a competent subordinate staff. 
The petitioner provided detailed job descriptions and educational requirements for its proposed positions and 
noted that it had already hired a full-time designer and a sales and marketing managedgeneral manager, both 
of whom have bachelor's degrees. The petitioner stated that with a subordinate staff of at least seven to eight 
professionals and managers by the end of the first year of operations, "there would be absolutely no need for 
[the beneficiary] to be involved in any day-to-day activities." Finally, the petitioner submitted its business 
plan, projected income statements, and evidence of business conducted during the company's first month of 
operations. The business plan indicates that the company anticipates paying officer wages, regular wages and 
commissions of $382,000 during the first year of operations, and anticipates sales of $4,000,000. 
On August 1, 2003, the director denied the petition. The director determined that the proposed United States 
office would not employ the beneficiary in a managerial or executive capacity after one year of business 
operations. The director noted that the record did not establish that the beneficiary would supervise 
professional, supervisory or managerial subordinates who would relieve her from performing non-managerial 
duties. The director also determined that it did not appear that an organization of the petitioner's proposed 
size and nature would require the beneficiary to perform primarily executive or managerial job duties, but 
rather, that she would be engaged in the non-managerial, day-to-day operations involved in providing a 
service. 
On appeal, counsel for the petitioner asserts that the petitioner submitted sufficient evidence that it will 
employ managerial, professional or supervisory employees who will relieve the beneficiary from performing 
non-managerial and non-executive duties by the end of the first year of operations. Specifically, counsel 
states that the sales and marketindgeneral manager positions and finance and accounts manager, subordinate 
EAC 03 188 54964 
Page 6 
to the beneficiary's position, both require a bachelor's degree and will also involve significant supervisory 
duties. Counsel reiterates that the company has already hired employees, intends to conduct business in 
excess of $4 million during its first year of operations, and reasonably expects to hire up to ten employees in 
the first year alone. The petitioner also submits a letter from its certified public accountant, who states that the 
petitioner's financial goals and proposed staffing for the first year of operations are reasonable, and that the 
company employs four full-time employees as of September 2003. Counsel concludes that the beneficiary's 
duties at the end of the first year of operations will be primarily managerial or executive in nature. 
Upon review of the petition and evidence, the petitioner has established that the United States entity will 
support the beneficiary in a primarily managerial or executive capacity within one year. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 9 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform 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 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. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy. 
Although the director based his decision primarily on the proposed size of the enterprise and the number of 
staff, the director did not take into consideration the reasonable needs of the enterprise. As required by 
section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is 
acting in a managerial or executive capacity, CIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. In the present 
matter, although the proposed organization will not be large, the totality of the record supports a conclusion 
that the majority of the beneficiary's direct subordinates will be supervisors, managers, or professionals. See 
section 101(a)(44)(A)(ii) of the Act. Further, as proposed, the petitioner's staffing levels by the end of the first 
year of operations will be sufficient to relieve the beneficiary from performing non-qualifying day-to-day 
operational and administrative duties associated with the import, sale and distribution of the company's 
products. The evidence of record establishes a realistic expectation that the petitioner will be able to support a 
primarily managerial or executive position within one year. 
EAC 03 188 54964 
Page 7 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, the petitioner has sustained that burden. Accordingly, 
the appeal will be sustained and the decision of the director will be withdrawn. 
ORDER: The appeal is sustained. The petition is approved.