dismissed L-1A Case: Alcoholic Beverages

FILE: 
IN RE: 
Identifying data deleted to 
prevent clearly unwarranted 
Invasion of personal privacy 
Office: VERMONT SERVICE CENTER 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Irrnnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington. DC 20529~2090 
u.s. Citizenship 
and Immigration 
Services 
Date: MAR 22 2011 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(lS)(L) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(lS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.S. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
· f 
DISCUSSION: The Director, Vennont Service Center, initially approved the nonimmigrant visa petition. 
Upon subsequent review, the director issued a notice of intent to revoke approval and ultimately revoked 
approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 101 (a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.c. § 1101(a)(l5)(L). The petitioner, a Delaware corporation, states that it is engaged in the production, 
distribution, export and retail sale of alcoholic beverages. It claims to be an indirect, majority-owned 
subsidiary The petitioner sought to employ the beneficiary in the 
position of Chief Financial Officer (Financial Controller) of its new office in the United States for a period of 
one year. 
The director initially approved the petition and granted the beneficiary L-IA classification from June II, 2008 
until June 10, 2009, and subsequently granted the petitioner's request to extend the beneficiary's status for two 
additional years. 1 On October 30, 2009, upon further examination and following a site review of the U.S. 
entity and an interview with the beneficiary, the director issued a notice of intent to revoke the approval, 
pursuant to 8 C.F .R. § 214.2(1)(9)(iii)(A). The director instructed the petitioner to submit additional evidence 
or arguments in rebuttal of the issues raised in the notice of intent to revoke. The petitioner submitted rebuttal 
evidence on December 2, 2009. 
The director revoked the approval of the petition on February 18, 2010, based on three independent and 
alternative grounds. Specifically, the director detennined that the petitioner failed to establish: (I) that the 
U.S. and foreign entities have a qualitying relationship; (2) that the U.S. company is doing business as 
defined in the regulations; and (3) that the beneficiary will be employed in the United States in a qualifying 
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 director 
failed to consider relevant evidence, discounted evidence that was submitted in support of the petition and in 
response to the notice of intent to revoke, misstated the law, and imposed requirements for approval of the 
petition that go beyond the statutory and regulatory requirements. Counsel further contends that the petition 
approval was improperly revoked as the director failed to identify any material error, substantial change in 
circumstances, or new material infonnation that adversely impacts the petitioner's or beneficiary's eligibility. 
Counsel submits a lengthy brief in support of the appeal. 
I. The Law 
1 The approval ofthe extension petition was also revoked on February 18, 2010, and the 
revocation decision has been appealed to the AAO. 
Page 3 
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 I(a)(l5)(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 (I)(I)(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 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. § 214.2(1)(3)(v) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall subm it 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 involves 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 
Page 4 
paragraphs (1)(1 )(ii)(B) or (C) of this section, supported by infonnation 
regarding: 
(1) 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 the United States; and 
(3) The organizational structure of the foreign entity. 
Under U.S. Citizenship and Immigration Services (USCIS) regulations, the approval of an L-1A petition may 
be revoked on notice under six specific circumstances. 8 C.F.R. § 214.2(l)(9)(iii)(A). To properly revoke the 
approval of a petition, the director must issue a notice of intent to revoke that contains a detailed statement of 
the grounds for the revocation and the time period allowed for rebuttal. 8 C.F.R. § 214.2(1)(9)(iii)(B). In the 
present matter, the director provided a detailed statement of the grounds for the revocation but did not cite to 
the specific provision of the regulations as a basis for the revocation. Upon review, the director revoked the 
approval on the basis of8 C.F.R. § 214.2(l)(9)(iii)(A)(5): "Approval of the petition involved gross error." 
The term "gross error" is not defined by the regulations or statute. Furthermore, although the tenn has a 
juristic ring to it, "gross error" is not a commonly used legal tenn and has no basis in jurisprudence. See 
Black's Law Dictionary 562, 710 (7th Ed. 1999)(defining the types of legal "error" and legal tenns using 
"gross" without citing "gross error"). The word "gross" is commonly defined first as "unmitigated in any 
way: UTTER," as in "gross negligence." Webster's New College Dictionary 502 (3,d ed. 2008). 
As the term "gross error" was created by regulation, it is most instructive to examine the comments that 
accompanied the publication of the rule in the Federal Register. The tenn "gross error" was first used in the 
regulations relating to the revocation of a nonimmigrant L-I petition. In the 1986 proposed rule, an L-I 
revocation would be pennitted if the approval had been "improvidently granted." 51 Fed. Reg. 18591, 18598 
(May 21, 1986)(Proposed Rule). After receiving comments that expressed concern that the phrase 
"improvidently granted" might be given a broader interpretation than intended, the agency changed the final 
rule to use the phrase "gross error." 52 Fed. Reg. 5738, 5749 (Feb. 26, 1987)(Final Rule). As an example of 
gross error in the L-1 context, the drafter of the regulation stated: 
Id. 
This provision was intended to correct situations where there was gross error in approval 
of the petition. For example, after a petition has been approved, it may later be 
determined that a qualifying relationship did not exist between the United States and the 
foreign entity which employed the beneficiary abroad. 
Page 5 
Accordingly, upon review of the regulatory history and the common usage of the term, the AAO interprets the 
term "gross error" to be an unmitigated or absolute error, such as an approval that was granted contrary to the 
requirements stated in the statute or regulations. Regardless of whether there can be debate as to the legal 
determination of eligibility, any approval that USCIS determines to have been approved contrary to law must 
be considered an unmitigated error, and therefore a "gross error." This view of "gross error" is consistent with 
the example provided in the Federal Register. See 52 Fed. Reg. at 5749. 
Upon review, and for the reasons discussed below, the AAO finds that the petition approval was properly 
revoked as the director clearly approved the petition in gross error, contrary to the eligibility requirements 
provided for in the regulations. 
II. Discussion 
The director revoked the approval of the petition based on three grounds, concluding that the petitioner failed 
to establish: (I) that it has a qualitying relationship with the beneficiary's foreign employer; (2) that the U.S. 
company is doing business as defined in the regulations; and (3) that the beneficiary will be employed in the 
United States in a qualitying managerial or executive capacity. The AAO will address these issues separately 
below. 
A. Qnalifying Organization 
The regulation at 8 C.F.R. § 214.2(l)(l)(ii)(G) defines the term "qualitying organization" as a United States or 
foreign firm, corporation, or other legal entity which: 
(1) Meets exactly one of the qualitying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a 
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United 
States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101 (a)( 15)(L) of the Act. 
Therefore, in order for a petitioner to establish that it is a "qualitying organization," for the purposes of this 
classification, it must establish two elements: (I) that it has a "qualifying relationship" with the beneficiary's 
foreign employer, and (2) that it is "doing business" as defined in the regulations. The director determined 
that the petitioner did not satisfy either requirement. 
1. Qualifying Relationship 
The first issue to be addressed is whether the petitioner established that it has a qualifying relationship with 
the beneficiary's previous foreign employer. To establish a "qualifying relationship" under the Act and the 
regulations, the petitioner must show that the beneficiary's foreign employer and the proposed u.s. employer 
are the same employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as 
"affiliates." See generally section 101 (a)(I 5)(L) of the Act; 8 C.F.R. § 214.2(1). 
The petitioner filed the Fonn 1-129, Petition for a Nonimmigrant Worker, on May 30, 2008. On the L 
Sunnlernelot to Form 1-129, the petitioner identified the beneficiary's last foreign employer as 
The petitioner further described the corporate relationship as follows: 
petiti(mer 1 is 100% owned is 100% owned by 
in tum is 100% owned by_ 
In a letter dated May 22, 2008, the petitioner stated that the u.s. cornplmy "is a wholly owned subsidiary of 
••••••••••• which is in tum, wholly owned 
The petitioner also submitted a corporate organizational chart depicting and its 
approximately 45 subsidiaries, which depicts the above-described ownership of the u.s. company. 
As evidence of the u.s. company's ownership, the petitioner submitted: (I) a copy of the petitioner's stock 
certificate # 1; (2) the company's certificate of incorporation indicating that it is authorized to issue 1,000 
shares of common stock with a par value of $.01 per share; (3) the company's by-laws; and (4) a Written 
dated 2008, which indicates that 100 shares of the 
petitioner's stock were issued to in exchange for consideration of $1 00,000. 
The petitioner's stock certificate indicates that 100 shares were issued to 
certificate was not signed and did not bear the exact date of issuance. 
The stock 
As noted above, the director initially approved the petition on June 11, 2008. On October 30, 2009, the 
director issued a notice of intent to revoke based on a finding that there are unresolved discrepancies and 
deficiencies in the record with regard to the ownership of the petitioning company. 
The director acknowledged that the petitioner had previously submitted a stock certificate indicating that_ 
•••••••••• owns 100% of the u.s. company's stock, but noted that the certificate was neither 
signed nor dated, and thus was of little probative value. The director instructed the petitioner to explain why 
the company's stock certificate was not properly executed and to provide copies of the U.S. company's stock 
register showing all stock certificates issued to the present date, including infonnation regarding the total 
shares of stock sold, the names of shareholders, and the purchase prices for all transactions. 
The director also requested evidence showing that the parent company had, in fact, paid for the ownership of 
the u.s. company, and stated that such evidence may include original wire transfers from the parent company, 
copies of canceled checks, or deposit receipts detailing the monetary amounts for the stock purchase. 
Page 7 
Finally, the director observed that the petitioner's 2008 IRS Fonn 1120, U.S. Corporation Income Tax Return, 
submitted in of the for an extension of status, does not identify the claimed 
parent colnpan~l, 
is wholly-owned by 
as the petitioner's owner, but rather indicates that the company 
majority-owned by_. The director requested an 
explanation for this apparent discrepancy regarding ownership and evidence to support the petitioner's 
assertions. 
In a letter dated December I, 2009, the petitioner acknowledged that it submitted a stock certificate that was 
neither signed nor dated in support of the initial new office petition filed in May 2008. The petitioner 
explained that the oversight "was due to the rushed process of incorporation and petition for [the 
beneficiary]." The petitioner indicated that it submitted the certificate after it was prepared, but before it was 
finalized, and emphasized that the certificate was in fact signed by the petitioner's director, 
_ on May 22, 2008, prior to the filing of the initial L-I A petition. 
The petitioner submitted a copy of its executed stock certificate # I indicated that 100 shares ofthe company's 
stock were issued to on May 22, 2008. The petitioner also submitted a copy of 
its stock ledger indicating that . the owner of stock certificate # I and that it provided 
consideration in the amount of $1 00,000. The date of the transaction is not provided. 
With respect to the petitioner's 2008 corporate tax return, the petitioner indicated that the infonnation 
provided therein does not prevent a finding that the U.S. company is directly owned by 
as consistently stated by the petitioner. The petitioner explained that "the ownership structure on the tax 
returns was provided based upon tax elections made by the_to treat certain organizations, including 
as "disregarded entities." The petitioner submitted a letter dated November 10, 
finn further explaining the tax election by and the infonnation 
provided on the petitioner's tax return. The accountant explains 
81.83% of the U.S. company based on his 98% ownership of 
provided an IRS Form 8832, Entity Classification Electicm 
be "disregarded as a separate entity" and named 
an indirect owner of 
The petitioner also 
in which it elected to 
In response to the director's request for evidence that paid for the stock the 
petitioner issued to it, the petitioner submitted a Written Consent of Sole Director in Lieu of Meeting dated 
December 1, 2009, which indicates that the petitioner agreed on May 22, 2008 to sell 100 shares of stock to 
on May 22, 2008 for aggregate consideration of $100,000. Counsel summarizes and 
explains the significance of the resolution as follows: 
This resolution confinns that $156,242.16 in obligations incurred by 
••• lil on behalf of [the petitioner] is deemed consideration paid In exchange for the 
issuance of 100 shares of [the petitioner's] stock in May 2008 .... Such a resolution confonns 
with Section 152 of the General Corporations Law of Delaware, which provides that the 
"consideration ... for subscriptions to, or the purchase of, the capital stock to be issued by a 
corporation shall be paid in such form and in such manner as the board of directors shall 
Page 8 
determine." Specifically. the resolution explicitly acknowledges that 
_incurring financial obligations on behalf of [the petitioner] will be considered 
adequate consideration for the shares of stock. 
The petitioner submitted copies of two invoices issued by the U.S. firm of 
in June 2008 for work "relating to the establishment of a U.S. subsidiary to 
conduct distribution functions," during the months of April and May 2008. 
After reviewing the evidence submitted in response to the notice of intent to revoke, the director revoked the 
approval of the petition, concluding that the petitioner had failed to adequately document its claimed 
qualifying relationship with the beneficiary's foreign employer. 
The director declined to assign any evidentiary weight to the newly submitted signed and dated stock 
certificate, advising the petitioner that evidence that the petitioner creates after USClS points out the 
deficiencies and inconsistencies in the petition will not be considered independent and objective evidence. 
The director also found the petitioner's stock ledger to be incomplete, as it did not include the date of issuance 
of the petitioner's stock. Further, the director determined that "a written consent in lieu of meeting executed 
by the director on a date after the instant petition was filed adds little to proving who owns the actual stock of 
the U.S. entity as of the date of filing." The director cited to Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r. 1998), to stand for the proposition that a petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to USCIS requirements. 
The director further concluded that "no evidence was submitted to highlight the transfer of funds necessary 
for the start-up of the U.S. entity." 
On appeal, counsel for the petitioner asserts that the director's conclusion that there is no qualifying 
relationship between the entities is belied by the evidence of record. Counsel contends that the petitioner 
provided explanations with respect to the perceived inconsistencies in ownership as reported in the company's 
2008 IRS Form 1120, and with respect to the petitioner's failure to submit an executed stock certificate at the 
time of filing its new office petition. 
With respect to the foreign entity's obligation to pay for the issued stock, counsel reiterates that the petitioner 
provided evidence that it ultimately accepted $156,242.16 in financial obligations incurred by _ 
behalf of the U.S. company as consideration paid in exchange for 100 shares of stock 
issued in May 2008. Counsel further asserts that the petitioner provided the consolidated financial statements 
for the petitioner's ultimate parent company, 
•••••••• and the petitioning company are all included. Counsel contends that it did in fact submit 
"evidence to highlight the transfer of funds necessary for the start-up of the U.S. entity," by providing 
evidence that the foreign entity incurred significant expenses on behalf of the U.S. entity at the time of its 
formation, as allowable under Delaware corporations law. Counsel emphasizes that "it is not the Service's role 
to impose requirements above and beyond those established by the jurisdiction in which a petitioning entity is 
incorporated. II 
Counsel asserts that the "petitioner has not presented a new set of facts" in hopes of having the petition 
granted, but rather "has presented a consistent set of facts which have not changed from the original petition, 
the extension request or the response to the NOIR." 
Upon review of the totality of the evidence submitted, the AAO finds sufficient evidence to establish a 
qualifying relationship between the U.S. company and the beneficiary's prior employer. 
The regulation and case law confinn that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to detennine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
The petitioner has consistently claimed that it is a direct, 
and an indirect wholly or majority-owned subsidiary 
is no evidence in the record of proceeding that suggests company any 
More importantly, there is sufficient evidence in the record to establish by a preponderance of the evidence 
that the petitioner is in fact a subsidiary ofthe beneficiary's foreign employer. 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer 
seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. Us., 345 F.3d 683, 694 (9th Cir., 2003). 
While it is true that the petitioner submitted an unexecuted stock certificate at the time that it filed the instant 
petition, the stock certificate was accompanied by a corporate resolution dated May 22, 2008 which indicated 
that the company resolved on that date to issue 100 shares of stock to SPI Spirits (Cyprus) Limited, the 
company named on the stock certificate. The submission of the signed and dated stock certificate at a later 
date does not amount to an attempt to create new evidence to correct a material deficiency. 
With respect to the director's determination that the petitioner submitted "no evidence" to establish that the 
foreign entity paid for its interest in the U.S. company, the petitioner did in fact submit evidence to show that 
Page 10 
was invoiced for substantial legal costs associated with the incorporation of the U.S. 
company and that the U.S. company has accepted such actions as consideration for the stock issued. The 
lack of evidence of a direct investment of $100,000 may be directly relevant to the issue of whether the 
foreign entity had a bonafide intent to establish the U.S. entity as an operating company responsible for the 
import and distribution of products in the United States. However, for purposes of establishing 
the foreign entity's ownership of the petitioner's stock, the AAO finds the evidence of record sufficient to 
establish that the petitioner'S parent company provided the consideration required in exchange for the stock 
that was issued. 
The petitioner has also provided financial documents which further support a finding 
petitioner 
including a "Balance des comptes genereaux" prepared for the 
the group's consolidated financial statements. 
Based on the foregoing, the AAO finds that the petitioner established that the U.S. company is a subsidiary of 
the beneficiary's foreign employer. The director's determination to the contrary will be withdrawn. 
2. Doing Business 
The second issue to be addressed is whether the petitioner established that the U.S. company is doing business 
as defined at 8 C.F.R. § 214.2(1)(2)(H). "Doing business" means the regular, systematic, and continuous 
provision of goods andlor services by a qualifYing organization and does not include the mere presence of an 
agent or office of the qualifYing organization in the United States and abroad. Id. Therefore, while the 
petitioner has established that the foreign entity is the petitioner's parent company based on its ownership of 
the petitioner's issued stock, the petitioner cannot be considered a "qualifYing organization" unless it can 
establish that it is doing business as a subsidiary of the foreign entity. 8 C.F.R. § 214.2(l)(2)(G). 
If a petitioner indicates that a beneficiary is coming to the United States to open a "new office," it must show 
that it is prepared to commence doing business immediately upon approval so that it will support a manager 
or executive within the one-year timeframe. See generally, 8 C.F.R. § 214.2(l)(3)(v). At the time of filing the 
petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired sufficient 
physical premises to house the new office and that it will support the beneficiary in a managerial or executive 
position within one year of approval. Specifically, the petitioner must describe the nature of its business, its 
proposed organizational structure and financial goals, and subm it evidence to show that it has the financial 
ability to remunerate the beneficiary and commence doing business in the United States. [d. If approved, the 
beneficiary is granted a one-year period of stay to open the "new office." 8 C.F.R. § 2l4.2(l)(7)(i)(A)(3). At 
the end of the one-year period, when the petitioner seeks an extension of the "new office" petition, the 
regulation at 8 C.F.R. § 2l4.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing 
business "for the previous year" through the regular, systematic, and continuous provision of goods or 
services. 
Upon review, it is evident that the petitioner was not prepared to do business upon approval of its initial new 
office petition, and in fact never commenced the proposed business activities which formed the basis of the 
Page II 
instant new office petition approval. For these reasons, the AAO concurs with the director's detennination 
that the petition was approved in error and finds that the approval of the petition was properly revoked. 
~ submitted a copy of its business plan as of May 2008. According to this business plan, _ 
_ had made an initial investment o~n the U.S. company in order to establish it as "an 
alcoholic beverage and supplier ofth~ current and future owned brands." The business 
plan explains that the have traditionally been represented by third parties in the United 
States, most recently by whose partnership with the _was being terminated in 
2008 by mutual agreement of the parties. The business plan goes on to state that the group "is seeking entry 
into the U.S. market with the establishment of [the petitioner]." 
The business plan further states: 
It is the intent of [the petitioner] to acquire the Basic Pennit required for importation and 
wholesale of distilled spirits for commercial reasons throughout the 50 states. Upon receipt 
of the Basic Permit, Applications for Certificate of Label Approval will be submitted. Given 
the fact that the importation and distribution of distilled spirits in the US is highly regulated, 
the volume of necessary penn its and applications are expected to be high. However, most 
approvals are expected within the next six months. 
To date [the petitioner] has held preliminary discussions with US regulators/legal advisors in 
several states regarding its business and expansion plans. The business model of [the 
petitioner ] largely follows the same principle as those already in place by _ in other 
countries. [The petitioner] will be tailored to the unique US three-tier distribution system for 
alcoholic beverages. As such [the petitioner's] products will be distributed via a carefully 
chosen group of distributors in Control and License States. These distributors will arrange 
the physical distribution and promotion, where pennitted by law, of the agreed brands on an 
exclusive basis in the assigned territory. 
According to the business plan, the roles and responsibilities of the newly established company were to 
include: establishing a local market strategy within the company's global framework; profit and loss 
responsibility for the local market; development of the local organization; appointment and management of 
local distributors, market research, production development, development and execution of local marketing 
and sales programs and management of local budgets. The business plan indicated that the foreign entity had 
provided the U.S. company with a $100,000 investment. However, the petitioner did not provide evidence of 
this investment in the fonns of a wire transfer, canceled checks, or copies of the petitioner's bank statements. 
With respect to the physical premises of the petitioner's office, the evidence submitted in support of the initial 
petition indicated that the petitioner has a "membership agreement" with Preferred Offices, under which the 
petitioner has agreed to an "executive membership." This agreement provides the petitioner with a published 
Washington, DC telephone number, live telephone answering with voice mail access, a permanent business 
Page 12 
address with mail receipt and forwarding services, and 16 hours per month of private office usage. The 
petitioner provided no other business address. 
In the notice of intent to revoke issued on October 30, 2009, the director advised the petitioner that, upon 
further examination of the petition and following a site review of the U.S. entity and an interview with the 
beneficiary and the signatory of the petition, it had come to the attention of USCIS that the petitioner "is not 
actively doing business per statute." 
The director noted that, upon being interviewed by a USCIS officer, both the belleficioary 
••••• stated that the beneficiary's duties are to oversee the contract between 
The director emphasized that the petitioning entity is not a party to this 
contract and questioned how such responsibility established that the petitioner is "doing business." 
The director further advised the petitioner that a site visit to the petitioner's claimed address revealed that the 
United States entity does not have a physical location, but rather had simply secured a mail drop and 
answering service. The director requested additional evidence that the petitioner had secured physical 
premises to house the office, as well as additional evidence of business activities including phone listings and 
phone records and business licenses. 
In response to the Notice of Intent to Revoke, counsel for the petitioner emphasized that "the on-site 
investigation and the [USCIS] communication with the officers of the company revealed that [the petitioner] 
was acting precisely as described in the petitions and [the beneficiary] was performing in precisely the role 
detailed in the petitions." Counsel asserted that "confirmation of representations made in two approved 
petitions cannot be what Congress meant when it provided that petitions may be revoked for 'good and 
sufficient cause,!11 
Counsel emphasized that the petitioner is "doing business" iihrou h the provision of "marketing consulting 
and financial management services" to the foreign entity an with respect to their contract. Counsel 
asserted that "in light of the size of the contract, [the petitioner] has taken on the role of supervising_ 
performance on behalf of the _' Counsel explained that the petitioner and its parent company 
entered into its "marketing consultancy agreement" due to "the need for local daily management of the 
Stolichnaya brand and the financial returns under the contract." 
In a letter dated December 1,2009, the petitioner further explained as follows: 
As detailed extensively in the second L petition, from the establishment of [the petitioner] in 
May 2008 until November 2008, [the petitioner] was engaged in representing_ in 
its effort to develop its own internal distribution network or find a suitable partner. Once it 
became clear that. would be better served by contracting distribution and marketing to a 
single partner, [the petitioner] worked with the _ to identify the best fit for 
distribution of_ in the U.S. Based upon the analysis and opinion of [the 
Page 13 
beneficiary],. chose to contract with This contract was 
entered into on November 7, 2008 and is between our parent companies ... and _ . 
Although is not a party to this contract, [the petitioner] provides services 
in marketing management in support of this contract. ... [T]he evidence of record shows that 
services rendered to 
paid those invoices. 
The petitioner submitted evidence that, effective January 1, 2009, it entered into an agreement to serve as 
"Marketing Research Consultant" in the U.S. market Under the terms of the 
agreement, the petitioner "shall provide such services on the territory of the USA as may be 
requested by __ from time to time during the term of this Agreement in accordance with the list of 
services stipulated in Addendum 1 to this " The petitioner agreed that "it is not entitled either to 
provide services as an Agent or soliciting andlor concluding any agreement on 
behalf on the territory of the USA." Under the terms of the agreement, the 
petitioner is required to submit a monthly report to 
$15,000 per month. 
and is compensated at a rate of 
The record contains evidence that the petitioner started invoicing for "Marketing 
Research Consultancy" services as of January 31, 2009. The petitioner claims no other source of income. 
The petitioner's IRS Form 1120, U.S. Corporation Income Tax Return, for 2008 indicates that the petitioner 
had no income during that calendar year. The petitioner acknowledges that the beneficiary is the only 
employee of the U.S. company and mentions no plans for further hiring. 
The terms of the petitioner's agreement with 
will include: advertising and prc,m()tir'g 
indicate that the petitioner's services 
brands and business through advertising agencies and 
media; provision of assistance to the foreign entity in relation to merchandising and marketing strategies; 
services related to planning, arranging and or participating in promotional events such as trade fairs and 
exhibitions; provision of marketing support services such as preparing and filing documents for advertising; 
and collecting data and reporting on the marketing strategies, advertising and promotional events and products 
of competitors. We note that, at the time this agreement was signed, these types of services had already been 
contracl:ed out to •. Nevertheless, the petitioner's agreement with the foreign entity makes no mention of 
or the petitioning company's responsibility to "oversee" or "direct" the provision of such services by 
Nevertheless, the petitioner claimed that the role of the U.S. company at the end of the first year of operations 
is to oversee "several components of the contract with. that contain key financial provisions." The 
petitioner stated that the beneficiary "is designated by. to oversee _ compliance with [contract] 
provisions and to ensure performance under the contracr.-rhe petitioner also provided a list of marketing 
services performed b. and indicated that the beneficiary "directs" the provision of such services. The list 
of services is identical to the list of services attributed to the petitioning company in its contract with _ 
The petitioner submitted copies of a number of e-mail exchanges between the beneficiary and members of the 
_ team as evidence of the petitioner's "provision of marketing consulting and management services." 
Counsel asserted that or office as it is providing the marketing and financial 
management services and is engaged in the daily direction of the work of 
_ under its contract Counsel contended that, given that the petitioner is 
involved in "daily decision maKlJIlg regarding how to market Stolichnaya," its activities are "far different than 
a passive agent or office that performs no services." 
Counsel also addressed the petitioner's lack of traditional physical premises, noting that the company does not 
require significant office, warehousing, distribution, manufacturing or as~;enablly 
the petitioner "has determined that the availability of office space at [the 
beneficiary's] home offices and condominium services and _ facilities are 'sufficient physical premises' 
for the provision of their services." Counsel argued that the director's insistence upon "traditional office 
spaces is not reflective of the current real ity of business." Finally, counsel asserted that "the manner of office 
space is a business decision made by [the petitioner] and one that the CIS should respect and not disturb, 
especially in light of the fact that it was fully disclosed to the CIS in the petitions submitted by [the 
petitioner]. " 
The director determined that the petitioner failed to submit evidence that the petitioner has been doing 
business as defined in the regulations. The director emphasized that the company has no staff other than the 
beneficiary and was unable to provide evidence of sufficient physical premises or business activities other 
than copies of e-mail exchanges and invoices issued to the parent company requesting payment for marketing 
consulting services. 
On appeal, counsel contends that the petitioner is actively doing business in the United States. Counsel 
asserts that the petitioner submitted "extensive evidence" to satisfy this requirement, including: invoices for 
the provision of marketing consulting services related to the distribution of in the United 
States; evidence of marketing events and materials forth'-- in 2008 and 2009; sample emails 
showing the beneficiary's daily communication wit~ brand managers and marketing professionals; pay 
records reflecting the petitioner's payment of the beneficiary's salary; evidence of office space and facilities 
used by the petitioner; evidence of the petitioner's insurance policy; and financial documents and bank 
statements. 
Counsel reiterates that the petitioner fully disclosed the nature of its "space arrangement" with Preferred 
Offices at the time the new office petition was filed. Counsel emphasizes that a review of the petitioner's 
agreement with Preferred Offices reveals that the petitioner has not obtained a mere "mail drop and answering 
service" but rather has access to private office space, conference rooms, secretarial services, administrative 
support, Internet, shipping and printing services, amounting to "the entire panoply of business services 
provided in an office." In addition, counsel contends that many of the petitioner's activities are performed at 
the sites of vendors, during business travel, at the beneficiary'S home office, or at the offices of contractors, 
lawyers and other business partners. Finally, counsel asserts that the petitioner "made a business decision not 
Page 15 
to invest more in traditional office facilities and has found the current arrangement more than sufficient for its 
purposes." 
Counsel goes on to address the director's observations regarding the staffing of the company, asserting that, 
while the beneficiary is the company's sole direct employee, the director erroneously disregarded evidence 
that she oversees_ staff who are assigned exclusively to the Stolichnaya account "under the contract 
between. and [the petitioner]." Counsel states that "the need for local, daily management of the 
Stolichnaya brand and the financial returns under the contract is the reason behind [the petitioner's] 
existence. II 
Counsel concludes by stating that the petitioner has sufficient funds to 
_ employees who provide marketing and distribution services to 
and work pursuant to that company's contract 
its sole employee and that the 
"are employed by • 
Upon review, the AAO concurs with the director's determination that the petitioner failed to demonstrate that 
the U.S. company is doing business as required by the regulations. 
The petitioner indicated to USCIS as of May 2008 that it had invested $100,000 in the U.S. company with the 
intention of establishing the petitioner as an alcoholic beverage importer, distributor and marketer with local 
market profit and loss responsibility, responsibility for developing and executing marketing and sales 
programs, appointing and managing local distributors throughout the United States, establishing a local 
marketing strategy, and performing market research and product development activities for the U.S. market. 
Upon review of the evidence of record, it is apparent that the petitioner was not prepared to commence doing 
business upon approval of this new office petition. The petitioner did not have capital in the form of cash or 
other assets, did not secure a physical premises suitable for operating an import and distribution company, had 
no defined hiring plans, and did not have the licenses and permits needed to operate the type of business it 
claimed it would operate. 
The petitioner readily acknowledges that_ intended to assign [the petitioner] the responsibility of 
managing U.S. marketing and distribution of our products, which would require hiring an extensive work force, 
buying or leasing warehouse space, obtaining the necessary permits and licenses and taking other actions to build 
a successful distributor network." However, the record reflects that the petitioner did not proceed with 
implementing these plans, and in fact, devoted the first five to six months of its existence to researching the 
feasibility of implementing its own business plan. When a new office petition is approved, it is expected that 
the petitioner will immediately proceed with implementing the business plan that formed the basis of the 
approval, and not conduct months of feasibility analysis before ultimately abandoning the plan. The 
feasibility analysis should be completed before the petitioner presents the new office petition to USCIS for 
approval. Had the petitioner initially submitted a business plan indicating that the beneficiary would be the 
company's sole employee at the end of one year, operating the company primarily from a home office 
pursuant to a consulting agreement with the foreign entity, it is more likely than not that the new office 
petition would not have been approved. 
Page 16 
The petitioner has documented no business activities in 2008, despite the fact that the beneficiary's L-IA 
classification petition was initially approved in June 2008. The only explanation the petitioner has provided 
for the delay in commencing any type of business activities is the petitioner's claim that additional time was 
needed to research the feasibility of carrying out the business plan submitted to USCIS when the initial 
petition was filed. For the reasons discussed above, this is not a reasonable excuse, in light of the petitioner's 
burden to establish at the time of filing the new office petition that it is prepared to immediately commence 
operations in the United States. 
The petitioner's failure to implement its original business plan and its failure to commence any activities that 
could be deemed "doing business" during the first six months following approval of the new office petition 
provide sufficient grounds for the revocation of the petition approval. Accordingly, the approval of the 
petition involved gross error, and the petition approval was properly revoked pursuant to 8 C.F.R. § 
214.2(1)(9)(iii)(5). 
The director also addressed whether the petitioner was doing business at the end of the first year of 
operations, when it filed a request to extend the instant new office petition. 
As of the date of filing, the petitioner had one employee and no full-time commercial premises from which to 
conduct business. However, counsel emphasizes that the company nevertheless is engaged in the provision of 
critical marketing and financial management services, and is charged with overseeing _ staff "under the 
contract between _ and [the ." Counsel also asserts that the petitioner exists due to "the need for 
local, daily management of the and the financial returns" under this contract. However, 
contrary to counsel's assertions, the petitioner does not have a contract with .' is not a party to the 
contract between is not named in that contract. Ifthere is in fact 
a contract between the petitioner and _ it has not been submitted for review by USCIS. 
Based on the evidence submitted, the petitioner's sole source of income is from fees paid by its parent 
company pursuant to its marketing consultant agreement with ~he agreement gives 
the petitioner no specific management authority over _ and no specific financial management role over 
the parent company's North American business activities. In fact, the marketing services outlined in the 
addendum to the petitioner's agreement with its parent company are precisely those which the petitioner 
attributes to_ The nature and scope of the services performed by the U.S. company is further illustrated 
by the following disclaimer which accompanies electronic mail correspondence sent by the petitioner: 
[The petitioner] is entitled to provide (hereinafter _ 
marketing research services of auxiliary character. Nothing in this correspondence is 
intended or written to be used by [the petitioner] to (i) negotiate, solicit, conclude any 
contracts and agreements andlor provide approvals and make material decisions on behalf of 
_ (ii) solicit, negotiate, conclude, authorize any sales, display, storage or maintenance of 
products a_or (iii) represent itself or through its employees as agents or employees of 
While the evidence submitted indicates that the beneficiary regularly engages in discussions via e-mail with 
WGS employees regarding the advertising and marketing of Stolichnaya products, the AAO cannot deem 
these "auxiliary marketing services" performed by a single employee from a home office, to rise to the level 
of engaging in "the regular, systematic and continuous provision of goods and services." 8 C.F.R. 
§ 214.2(1)(1 )(ii)(H). The U.S. company, in its current configuration, and pursuant to the terms of its 
agreement with SPI Cyprus, appears to serve as a vehicle for the foreign entity to place the beneficiary as its 
liaison in the United States. The petitioner invoices the foreign entity at a rate sufficient only to remunerate 
the beneficiary and to pay the minimal expenses of the U.S. company. The AAO does not doubt that the 
beneficiary can perform most of her duties from a home office via e-mail. However, given the circumstances 
described in the petition and supporting evidence, the beneficiary, as the sole employee of the petitioner, 
serves as an agent of the foreign entity, and such relationships are specifically excluded from the definition of 
doing business. Id. 
Therefore, the AAO concurs with the director's conclusion that the petitioner's activities at the end of the first 
year of operations do not satisfY the regulatory definition of "doing business." 
II. Employment in a Managerial or Executive Capacity in the United States 
The final issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 u.s.c. § IIOI(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 supervlsory, 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. 
Page 18 
Section IOI(a)(44)(B) of the Act, 8 U.S.c. § I 10 I (a)(44)(B), defines the tenn "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 one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
USCIS regulation, that allows for a more lenient treatment of managers or executives that are entering the 
United States to open a new office. When a new business is first 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 low-level 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 that first 
year. In an accommodation that is more lenient than the strict language of the statute, the "new office" 
regulations allow a newly established petitioner one year to develop to a point that it can support the 
employment of an alien in a primarily managerial or executive position 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is prepared to commence doing business immediately upon approval so that it will support 
a manager or executive within the one-year timeframe. See generally, 8 C.F.R. § 214.2(l)(3)(v). At the time 
of filing the petition to open a "new office," a petitioner must affinnatively demonstrate that it has acquired 
sufficient physical premises to house the new office and that it will support the beneficiary in a managerial or 
executive position within one year of approval. Specifically, the petitioner must describe the nature of its 
business, its proposed organizational structure and financial goals, and submit evidence to show that it has the 
financial ability to remunerate the beneficiary and commence doing business in the United States. Id. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Maller of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target market/prospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
Page 19 
[d. 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials andlor the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefore. Most importantly, the business plan must be credible. 
In its letter dated March 22, 2008, the petitioner indicated that the beneficiary would perform the following duties 
in the position of Chief Financial Officer (Financial Controller) for the U.S. company: 
• Management of [the petitioner's] financial statements and documents; 
• Guiding [the petitioner's] budget; 
• Outlining [the petitioner's] investments; 
• Liaising with regulatory representatives; 
• Meeting with [the petitioner's] tax consultants and legal advisors; 
• Ensuring that [the petitioner's] financial planning is in compliance with 
budgetary outlines; 
• Present [the petitioner's] performance to _ directors; 
• Evaluate operating and financial performance of u.s. operations; 
• Assessing local target markets; 
• IdentifY acquisition and merger opportunities in the U.S.; 
• Explore introduction and marketing of new brands; 
• Review activity reports and financial statements to determine progress and status in attaining 
objectives; and 
• Revise objectives and plans in accordance with current conditions as necessary. 
[The beneficiary] will be supervising the preparation of [the petitioner's] financial and tax 
documents and correspond with financial institutions. Furthermore, she will be controlling the 
cash activities of [the petitioner]. The financial operations of [the petitioner] will largely be left 
to [the beneficiary's] discretion and supervision. 
Given interest in the us market and its revenue expectations for North America, 
[the beneficiary] will be reporting upon the progress of [the petitioner] to_directors on 
a regular basis. She will be closely monitoring the Group's capitalization of [the petitioner] and 
evaluating the need for further investments into the company. While. products are already 
performing impressively in the U.S. market, it is the intent of the company to expand its brands 
in the U.S. and continue building upon its success. As such [the beneficiary] will be strategizing 
on [the petitioner's] future expansions and activities. In addition, she will be assessing [the 
petitioner's] ability to generate revenue, its potential areas of profitability, and possible business 
alliances. 
As [the beneficiary] will continue to perfonn the duties for_ in addition to her 
responsibilities to [the petitioner], she will have hiring discretion of the staff for [the U.S. 
company]. She will be overseeing the day to day operations of [the petitioner] and managing the 
work products of her staff She will continue managing the employees of SPI Group. 
As noted above, the petitioner stated that "the intended focus of [the U.S. company] will be on the importation, 
supply and marketing of Stolichnaya vodka." The petitioner submitted the above-referenced five-page business 
plan, which indicated that the company was incorporated with an initial investment of $100,000 and intended to 
operate as an alcoholic beverage importer and supplier. The business plan indicates that the U.S. company would 
be responsible for establishing local market strategy, holding profit and loss responsibility for the U.S. market, 
developing the local organization, appointing and managing local distributors, market research, product 
development, development of marketing and sales programs, and management of local budgets. According to the 
business plan, the petitioner expected gross revenue in excess of $253 million in 2008 and $260 million in 2009. 
The business plan does not include the petitioner's anticipated start-up costs, budget, operating expenses, 
projected staffing levels, or a detailed hiring plan. It merely notes that recruitment of senior staff is "underway" 
and that the company will hire marketing and sales staff 
The petitioner offered no further infonnation regarding the proposed staffing of the U.S. company, nor did it 
provide evidence of the claimed $100,000 investment from the foreign entity. As discussed above, the parent 
company paid over $100,000 in legal fees related to the establishment of the U.S. company, but there is no 
evidence that the foreign entity provided any capital for the start-up of the U.S. operations. Furthennore, the 
petitioner's business plan indicates that the pennits required to begin operating the business would not be acquired 
for at least six months. Finally, as discussed above, the petitioner had not acquired physical premises that would 
be suitable for an import and distribution company, and did not even sign a standard office lease. 
Overall, while the position description submitted for the beneficiary indicates that she would have the appropriate 
level of authority over the U.S. operations as a manager or executive, the supporting evidence did not demonstrate 
that the company was prepared to commence doing business immediately upon approval so that it will 
support a manager or executive within the one-year timeframe. See generally, 8 C.F.R. § 214.2(l)(3)(v). 
Specifically, the petitioner did not adequately describe the proposed nature of the office, the scope of the 
entity, its organizational structure, and its financial goals, nor did it submit evidence to corroborate the size of 
the United States investment. 8 C.F.R. § 214.2(l)(3)(v)(B)(1) and (2). Despite these evidentiary deficiencies, 
the petition was approved on June 11, 2008. Therefore, we find that the present petition approval was 
properly revoked as the director clearly approved the petition in gross error, contrary to the eligibility 
requirements provided for in the regulations. Again, the AAO interprets the tenn "gross error" to be an 
unmitigated or absolute error, such as an approval that was granted contrary to the requirements stated in the 
statute or regulations. 
The director's Notice of Intent to revoke issued on October 30, 2009 also addressed the beneficiary's role at 
the end of the first year of operations, and considered whether the company had grown to a point where it 
could support a managerial or executive position. The director noted that, pursuant to telephone interviews 
Page 21 
with the benteii(:iaf' 
contract bel:w(!en 
pel:itiIJll<Jr's director, the beneficiary's duties appear to be limited to overseeing the 
despite the fact that the petitioning entity is not a party to that contract. 
evidence to establish that the beneficiary was employed in a primarily The director requested additional 
managerial or executive capacity, including: (I) the percentage of time the beneficiary devotes to each of her job 
duties for the U.S. entity on a weekly basis; (2) an explanation regarding how much time the beneficiary spends 
traveling and performing other duties associated with the_ contract; (3) a list of U.S. employees, including 
names, job titles, educational qualifications and complete position descriptions for all workers; (4) copies of IRS 
Forms W-2, W-3, 1096 and 1099 issued by the petitioning company in 2008, and payroll records for all 
employees since January 2009; and (5) complete copies ofIRS Forms 941 for all four quarters of 2008 and the 
first quarter of 2009. 
The director advised the petitioner that, as it does not appear that the beneficiary supervises any employees at the 
U.S. entity, "it is not clear exactly what she does besides contract work that would qualifY her as a bona fide 
manager or executive." The director emphasized that, given the size and nature of the business, "it is more likely 
than not that the beneficiary and any subordinate employees all primarily perform the tasks necessary to the 
operation of the business." 
In response, the petitioner submitted a letter dated December 1,2009, in which it provided the following account 
of the beneficiary'S duties: 
[The beneficiary] holds the position of Director of Finance and Marketing. Her principal duties 
are to oversee the fin:rerformance o~under the distribution and marketing 
contract and to direct_ marketing efforts on behalf of Stolichnaya .... [The beneficiary's] 
duties are as follows: 
• Management of [the petitioner's] financial statements and documents. [The beneficiary] 
oversees the production of financial data for [the petitioner]. She reviews reports on the 
marketing and sales of Stolichnaya in the U.S. For example, Article VIJI of the. 
contract contains several provisions that govern the volume and price for purchases of 
Stolichnaya. The contract covers issues ranging from extraordinary expenses to treatment 
of tax issues. [The beneficiary] oversees the financial reports generated and calculations 
made to ensure compliance and accuracy under the contract - 15% of her working time is 
allocated to these functions. 
• Guiding [the petitioner's budget]. This duty has receded in importance since the decision 
was made to have _ handle the distribution and marketing. Nonetheless, [the 
beneficiary] is responsible for overseeing the budgetary expenses for [the petitioner]- 2% 
of her working time is allocated to these functions. 
• Outlining [the petitioner's] Investments. [The beneficiary] 
opportunities for [the petitioner] as well as for the 
reviews investment 
is diversified 
into a variety of sectors other than vodka such as agriculture, wine, hospitality, retail and 
Page 22 
real estate. As investment opportunities arise, [the beneficiary] evaluates them financially 
and reports to corporate headquarters her opinions regarding whether .will invest. 5% 
of her working time is allocated to these functions. 
• Liaising with regulatory representatives. [The beneficiary] ensures that [the petitioner] 
complies with the myriad rules and regulations related to the alcohol business. Principally, 
[the beneficiary] addresses tax issues, but also remains a point of contact for a variety of 
issues. 5% of her working time is allocated to these functions. 
• Meeting with [the petitioner's] tax consultants and legal advisors. [The petitioner] works 
with several professional service firms .... [The beneficiary] meets with these professionals 
to achieve [the petitioner's] goals. 10% of her working time is allocated to these functions. 
• Ensuring that [the petitioner's] financial planning is in compliance with 
• 
budgetary guidelines. [The beneficiary] is responsible for ensuring that [the petitioner's] 
budget is aligned with the budgetary standards set by our corporate parent. This includes 
monitoring spending for marketing services under the contract with _ As such [the 
beneficiary] functions as the financial watchdog for the Group for spending in the U.S. 
10% of her working time is allocated to these functions. 
Presenting [the petitioner's] performance to the_ directors. [The beneficiary] 
reports regularly to the corporate directors regarding the financial performance of the U.S. 
operations. She is [in] daily contact with SPI officers and directors regarding sales and 
expenses in the U.S. market. 8% of her working time is allocated to these functions. 
• Evaluating operating and financial performance of U.S. operations. [The beneficiary] is 
oV'lrst,eirlg n,ertc)rmanc:e in the U.S., where_expects that the greatest 
has set a target of doubling the volume of sales 
by 2014 - will be in the U.S. This growth requires careful monitoring of the operations and 
financial performance in the U.S. [The beneficiary] is responsible for ensuring that the U.S. 
performance is operating at the best possible level. 10% of her working time is allocated to 
these functions. 
• IdentifY acquisition and merger opportunities in the U.S. As [the petitioner] is a diversified 
company, [the beneficiary] seeks out opportunities to expand _ brand and corporate 
footprint. This duty is similar to one above, "outlining investments" and the time spent on 
both duties is 5% of her working time allocated to these functions. 
• Explore introduction and marketing of new brands. Since 2008,_ has introduced 
three [The 
brand recognition. As the [attached emails] show, [the beneficiary] is in daily 
communication wit. about branding and marketing opportunities for new brands. As 
the emails show, the brand managers and marketing professionals seek the approval o~ 
• Review activity reports and financial statements to determine progress and status in 
attaining objectives. This duty is roughly identical to the duty above regarding "evaluating 
operating and financial performance of U.S. operations." As discussed above, this effort 
takes up 10% of [the beneficiary's] time. 
• Revise objectives and plans in accordance with current conditions as necessary. This is a 
effort. beneficiary] constantly evaluates current conditions and reports to. 
for the proper decisions. This effort is part of all of her duties. 
The petitioner acknowledged that the beneficiary is its sole direct employee, but indicated that the beneficiary 
"manages the work of the_rofessionals who are dedicated to the .ccount." The petitioner provided the 
beneficiary's payroll records and copies of the petitioner's IRS Forms 941 for the first three quarters of 2009, 
demonstrating the beneficiary's receipt of a monthly salary of over $11,500. 
The director revoked the approval of the petition, concluding that the petitioner failed to establish that the 
beneficiary was employed in a primarily managerial or executive capacity at the end of the first year of 
operations. The director observed that the petitioner's statements regarding the beneficiary's duties identiJY 
"general managerial functions" and fail to speciJY what the beneficiary will be doing to qualiJY as a manager or 
executive in the context of the petitioner's current staffing arrangement. The director further determined that, as 
there are no subordinate employees to provide the sales and services of the organization, "it would therefore seem 
likely that the beneficiary has been and will be primarily engaged in providing sales and services to your 
organization's clients, not directing the department or organization as asserted by you." 
On appeal, counsel asserts that the director ignored the petitioner's "detailed explanations and extensive 
evidence," submitted to establish that the beneficiary performs primarily managerial or executive duties. Counsel 
further contends: 
[The beneficiary] does not perform "contract work"; rather she oversees financial and marketing 
performance o~ under the terms of its contract with th iroup and manages the work 
of_ employees who are assigned to work full-time on the contract. As a high-ranking 
manager with a lengthy history with beneficiary] oversees distribution and 
manages the marketing efforts 
market, the United States. And although 
in the company's most important and profitable 
she does not supervise any employees of [the 
petitioning company] - as has been disclosed and repeatedly explained in Petitioner's previous 
filings - she does exercise managerial control over_marketing professionals assigned to the 
Counsel refers to the e-mail exchanges between the beneficiary and tbe _ team to corroborate his assertions 
that the beneficiary has decision-making authority over marketing matters and is charged with instructing the 
_ team in pursuing marketing initiatives. Counsel further asserts tbat the e-mail evidence demonstrates tbat 
the beneficiary "has authority to demand personnel actions." 
Counsel further contends that the director based his decision, In part, on tbe small size of the petitioning 
organization, but failed to consider the reasonable needs of the organization in light of its overall purpose and 
stage of development, as required by section 101(a)(44)(C) of the Act. Counsel explains tbat, while the 
petitioning company is small, "it is part of a large multinational organization and has tremendous responsibilities 
to the_' as the sole U.S. entity of a worldwide organization, and based on the revenue tbe group 
achieves in the U.S. market. Counsel asserts that "the financial performance and marketing activities of 
Stolichnaya in the U.S. are clearly an essential function not only for [the petitioner] but for tbe entire corporate 
group" and, as such, the beneficiary's position is "clearly managerial." 
Counsel contends that, contrary to the director's conclusions, the beneficiary is not involved in the performance of 
the routine, daily operations of the _in the United States. Specifically, tbe petitioner asserts that the 
beneficiary 'lin t perform tbe marketing duties, but makes decisions about marketing initiatives designed and 
developed b marketing professionals, including how to spen.- marketing budget and how to position 
Stolichnaya in the market." Counsel emphasizes that the petitioning company's "one key role" is "to manage and 
oversee_ performance under its contract with the _," and tbat the beneficiary is clearly charged 
with managing this essential function. 
Upon review, and for tbe reasons discussed below, counsel's assertions are not persuasive. The petitioner has not 
established that tbe beneficiary was employed in the United States in a primarily managerial or executive capacity 
at the end of tbe first year of operations. Therefore, tbe director properly revoked the approval of the petition 
pursuant to 8 C.F.R. § 214.2(l)(9)(iii)(5), in tbat the initial approval oftbe petition constituted "gross error." 
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. § 214.2(l)(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 definitions of executive and managerial capacity each 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 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). Here, the evidence of record does not support the 
petitioner's claims regarding the beneficiary's level of authority, nor has the petitioner demonstrated that the 
beneficiary'S actual duties were primarily managerial or executive in nature one year after the approval of the 
new office petition. Furthermore, as discussed above, the evidence shows that the petitioner did not carry out 
its initial business plan or hire additional staff during the first year of operations. 
Page 25 
With respect to the beneficiary's level of authority, the petitioner has provided a "market research consultancy 
agreement" between the petitioner and its parent company which defines the petitioner's responsibilities to the 
parent company. As stated above, the duties described in the agreement include advertising and promotion, 
market research, assisting with merchandising and marketing strategies, performing 
services related to planning, participation in promotional events, provision of market support 
services, and collecting relevant data regarding the marketing strategies, advertising and promotional events 
of th~tioner's competitors. This agreement was signed signed an agreement 
with_ for that company to provide advertising, marketing and promotion services of a similar nature, and 
therefore any claim that the petitioner "assigned" such services to _ or that it was appointed to manage the 
• contract are not persuasive. 
None of the marketing services described in the addendum to the petitioner's market research consultancy 
agreement with its parent company are clearly managerial in nature. Further, given that the beneficiary has 
been and will be the sole employee of the U.S. company, it is reasonable to believe that she is expected to 
perform these "auxiliary marketing services" under the terms of the agreement. As such, any description of 
the beneficiary's duties that does not include the services outlined in the petitioner's agreement with its parent 
company must be considered incomplete and of limited probative value. 
Other evidence in the record undermines the petitioner's claims that the petItIoner has "tremendous 
responsibilities to " and that the company is charged with managing "the financial performance 
in the United States." The petitioner's e-mail correspondence bears a 
disclaimer that identifies the petitioner as a provider of "marketing research services of auxiliary character." 
The petitioning company has no authority to negotiate or conclude contracts or agreements, or to approve or 
make material decisions on behalf of the petitioner's group, nor is it authorized to represent itself or through 
its employees as an agent or employee o~ As the beneficiary is represented to. as an employee of 
the petitioner, and not _ it follows that her authority is similarly limited. Given the evidence to the 
contrary, the petitioner's claims that the petitioner and beneficiary are charged with management oversight of 
the parent company's contract with _are not persuasive. 
Turning to the petitioner's description of the beneficiary'S duties, the AAO concurs with the director's finding 
that the petitioner'S description of the beneficiary's duties, while quite lengthy, fails to identify with any 
specificity the nature of her daily tasks, such that they could be classified as primarily managerial or 
executive. Many of the claimed duties relate to the financial and administrative management of the 
petitioning company. As discussed, the petitioning company, to the limited extent that it is "doing business" 
functions as a marketing consultant with one client, one employee, no permanent office, and monthly income 
of $15,000. The petitioner has not established its need for a manager to devote substantial time to financial 
and administrative management functions. The petitioner states that the beneficiary devotes more than 50 
percent of her time to managing the petitioner's "financial statements and documents," presenting the 
petitioner's performance to the parent company's director's, reviewing financial statements, and ensuring that 
the petitioner's financial planning is in compliance with the parent company's budgetary guidelines. Many of 
these duties are based on a claim that the petitioner, and, indirectly, the beneficiary, bears overall 
responsibility for the financial performance of the petitioner's Stolichnaya brand in the North American 
Page 26 
market, a claim that is not supported by the evidence of record, Furthermore, although the petitioner has 
submitted ample evidence related to the beneficiary's involvement in marketing activities carried out by 
_ the record contains no corroborating evidence of her claimed financial management duties as of the 
date of filing. Therefore, the petitioner's claim that the beneficiary devotes more than 50 percent of her time 
to such tasks is not persuasive. 
As discussed above, the petitioner has an agreement to provide auxiliary marketing services of a non­
managerial nature to its parent company, and the agreement attributes no other function to the u.s. company. 
The petitioner indicates that the beneficiary manages such activities by overseeing. personnel. However, 
the evidence submitted at the time of filing fails to establish the beneficiary's authority over marketing and 
advertising matters carried out by _ The e-mails submitted indicate that the beneficiary provides her 
opinion on routine advertising and promotional materials, provides information requested by _, and 
clearly consults with others within_ in doing so. The services performed appear to be consistent 
with the terms of the petitioner's marketing consulting agreement with its parent company. The petitioner 
acknowledges that the. "brand managers and marketing professionals seek the approval of_ 
for marketing initiatives," while the beneficiary's role is "oversight and obtaining approval." The 
petitioner has not established that the beneficiary's marketing duties, which appear to require a substantial 
portion of the beneficiary's time in light of the petitioner's marketing consulting services agreement, are 
managerial in nature. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter a/Church Scientology Int'!., 19 I&N Dec. 593, 604 (Comm. 1988). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § I 10 1 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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)(A)(iv) of the Act; 8 C.F.R. § 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. § 214.2(1)(I)(ii)(B)(3). 
As discussed above, the petitioner's claim that the beneficiary is employed in a primarily managerial capacity 
is largely predicated on its assertion that the beneficiary oversees managers and professionals who are 
employed by. and assigned to th_ account. While the beneficiary frequently interacts with 
Page 27 
such managers and professionals, the petItIOner has not established that the beneficiary supervises and 
controls their work, such that she could be classified as a personnel manager. _ has an agreement with 
not with the petitioning company. The petitioning company does not have the authority 
to make material decisions on behalf o~ An employee will not be considered to be a supervisor simply 
because of a job title, because he or she is arbitrarily placed on an organizational chart in a position superior 
to another employee, or even because he or she supervises daily work activities and assignments. Rather, the 
employee must be shown to possess some significant degree of control or authority over the employment of 
subordinates. See generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 
2003) (Cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. II, 2007)). The 
petitioner has not established that the benefic~es a significant degree of control or authority over 
any _ staff. In fact, it does not appear tha~ possesses this level of authority ove. staff, as 
the contract between the parties indicates that _ shall be solely responsible for the management, 
direction, control, supervision ... of its own employees." In support of its claim that the beneficiary manages 
••• personnel, the petitioner submitted a copy of an e-mail message the beneficiary sent to a_manager 
requesting that."reconsider functional and/or personal compositi~ team." It is not 
evident that this was the beneficiary's personal recommendation or that. was under any obligation to 
honor the request. The petitioner has not established that the beneficiary qualifies as a "personnel manager." 
Counsel claims on appeal that the pet~mpany's "one key role" is "to manage and oversee. 
performance under its contract with the_" and that the beneficiary is clearly charged with managing 
this essential function. The petitioner has not established that the beneficiary is employed primarily 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 101(a)(44)(A)(ii) of the Act, 8 u.s.c. § I 10 I (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 detailed description of the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary'S daily duties attributed to managing the 
essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's description of the beneficiary'S 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. 
Here, as discussed above, the petItIOner has not established that the beneficiary's duties are primarily 
managerial or that her level of authority ove~ performance rises to the level of a function manager. 
Rather, the evidence shows that the petitioner acts as a marketing services consultant to its parent company, 
rather than being charged with ma~esponsibility over the financial and marketing performance of 
under its agreement with the_ overseas. The beneficiary appears to act as a liaison between 
the but does not exercise discretion over the day-to-day operations of_ 
performance under the contract. The petitioner's claim that the beneficiary directs financial and marketing 
functions for is simply not supported by the evidence for the reasons 
already discussed. Again, the petitioner has acknowledged that it intended at the time it filed the new office 
Page 28 
petition to hire "an extensive workforce," and is instead operating a one-person marketing consulting business 
with one client. 
In light of the above, the record before the director at the time the petition was approved did not support a 
finding that the beneficiary would be employed in a primarily managerial or executive capacity within one 
year or that the u.s. company would support a managerial or executive position. Further, the evidence 
submitted in response to the notice of intent to revoke does not support a conclusion that the beneficiary's 
duties at the end of the first year of operations were primarily managerial or executive in nature. 
Accordingly, we find that the petition approval was properly revoked and the appeal will be dismissed. 
III. The Beneficiary's Foreign Employment 
Beyond the decision of the director, the evidence of record does not establish that the beneficiary had at least 
one continuous year of full-time employment abroad with a qualifying organization within the three years 
preceding the filing of the petition, as required by 8 C.F.R. § 214.2(1)(3)(iii). 
As noted above, the petitioner filed the Form 1-129 on May 30, 2008. Therefore, the petitioner must establish 
that the beneficiary had at least one continuous year of full-time employment with the foreign entity between 
May 30,2005 and the date of filing. The petitioner stated on the L Classification Supplement to Form 1-129 
that the beneficiary was employed from May 2004 until the present, with no 
interruption in employment. In its letter dated May 22, 2008, the petitioner indicated that the beneficiary had 
been serving as Financial Controller since 2004. 
However, the petitioner also submitted a copy of the beneficiary's employment agreement with ••••• 
_ dated October 1,2007. The agreement indicates that the beneficiary "successfully performed the task ofa 
Financial Controller for the Company from May 2004 to October 2005," and indicates that the beneficiary 
would be "beginning the employment" in this position on October 1, 2007. The petitioner submitted copies of 
the beneficiary's pay statements issued for the months of March and April 2008 only. 
Based on the information provided in the employment agreement, it appears that the beneficiary had a two­
year interruption in her employment as financial controller for the petitioner's parent company, from October 
2005 until October 2007. Thus, the evidence does not establish that the beneficiary had one year of 
continuous full-time employment with the foreign entity in the three-year period preceding the filing of the 
petition. Based on the evidence of record, it appears that the foreign entity employed the beneficiary for an 
aggregate period of one year between May 2005 and May 2008. However, the plain language of the 
regulation at 8 C.F.R. § 214.2(1)(3)(iii) requires that the beneficiary's one-year of qualifying employment 
abroad be continuous. 
A review of the beneficiary's current Russian passport issued in November 2006, a complete copy of which 
was submitted at the time of filing, further supports a conclusion that the beneficiary was not employed by the 
foreign entity in Switzerland continuously since May 2004, as claimed by the petitioner. The beneficiary's 
passport contains a United Kingdom "Visa Work Permit Dependant" that was valid from February 12, 2007 
Page 29 
until February 12, 2012. She also has a Swiss schengener staaten visa valid from April 2007 until August 
2007 which allows entries of up to 45 days, and a one-year Swiss etats schengen visa (notated "non 
professionnel") issued on November 1,2007, which allows entries of up to 90 days. The beneficiary does not 
appear to have a Swiss work permit or extended-stay visa that would have allowed her to be employed by .1 
__ during the stated period of qualifying employment abroad. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Based on the foregoing discrepancies, the petitioner has not established that the beneficiary had at least one 
continuous year of full-time employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. For this additional reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises. Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003). The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 
145 (3d Cir. 2004). 
IV. Conclusion 
Based on the foregoing discussion, the AAO concurs with the director's conclusion that the instant petition 
was approved in gross error, and affirms the director's decision to revoke the approval of the petition based on 
the two independent and alternative grounds stated. Further, based upon a review of the evidence of record, 
the AAO finds that the petitioner has not submitted evidence to satisfy the regulatory requirement at 8 C.F.R. 
§ 214.2(1)(3)(iii). 
The petition will be denied and the appeal dism issed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003). 
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. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.