dismissed L-1A Case: Alcoholic Beverages

identifying data deleted to 
prev':Dt clearly unwarranted 
Invasion of personal Privacy 
PUBLIC COPy 
U.S. Department of Homeland Security 
U.S. Citizenship and hrunigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: VERMONT SERVICE CENTER Date: 
MAR 22 2011 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section I OI(a)(I5)(L) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(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. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § I03.5(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, 
• 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Vermont 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 extend the beneficiary's employment as an L-IA 
nonimmigrant intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § llOl(a)(15)(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 of The beneficiary was initially granted L-I A status 
from June I I, 2008 June to open petitioner's new office in the United States.' The 
petitioner filed the instant petition on April 8, 2009 to request a two-year extension of the beneficiary's status. 
The director initially approved the petition and granted the requested extension of status on June 1,2009. 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(I)(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 determined that the petitioner failed to establish: (1) 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 qualitying 
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 identity any material error, substantial change in 
circumstances, or new material information that adversely impacts the petitioner's or beneficiary's eligibility. 
Counsel submits a lengthy brief in support of the appeal. 
I. The Law 
To establish eligibility for the L-I nonimmigrant visa classification, the petltlOner must meet the criteria 
outlined in section IOI(a)(15)(L) of the Act. Specifically, a qualitying organization must have employed the 
beneficiary in a qualitying 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 
, The approval of the original petition ( ••••••• ) was also revoked on February 18,2010, and the 
revocation decision has been appealed to the AAO. 
Page 3 
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 (1)(l)(ii)(G) of this 
section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services 
to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing 
of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the alien's 
prior 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)(14)(ii) also provides that a visa petition, which involved the opening 
of a new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (I)(I)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined In 
paragraph (1)(1 )(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and 
the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
Page 4 
Under U.S. Citizenship and Immigration Services (USClS) regulations, the approval of an L-IA petition may 
be revoked on notice under six specific circumstances. 8 C.F.R. § 214.2(1)(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(1)(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 term has a 
juristic ring to it, "gross error" is not a commonly used legal term and has no basis in jurisprudence. See 
Black's Law Dictionary 562, 710 (7th Ed. 1999)(defining the types of legal "error" and legal terms 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 term "gross error" was first used in the 
regulations relating to the revocation of a nonimmigrant L-l petition. In the 1986 proposed rule, an L-I 
revocation would be permitted 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-l 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. 
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 USClS 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 qualifYing relationship with the beneficiary's foreign employer; (2) that it the U.S. 
Page 5 
company is doing business as defined in the regulations; and (3) that the beneficiary has been and will be 
employed in the United States in a qualifying managerial or executive capacity. The AAO will address these 
issues separately below. 
A. Qualifying Organization 
The regulation at 8 C.F.R. § 214.2(1)(I)(ii)(G) defines the term "qualifying organization" as a United States or 
foreign firm, corporation, or other legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (I)(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)(l5)(L) of the Act. 
Therefore, in order for a petitioner to establish that it is a "qualifying 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)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on April 8, 2009. On the L 
Classification Supplement to Form 1-129, the petitioner identified the beneficiary'S last foreign employer, 
from May 2004 until December 2008, The petitioner further described 
the corporate relationship as follows: 
[The petitioner 1 is 100% owned by ~ is 100% owned by 
which is 8~ •••• , which is 100% owned by 
The petitioner reiterated this description of the _ structure in a letter dated March 24, 2009. As 
further evidence of the claimed qualifying relationship, the petitioner submitted a declaration from _ 
~!I!!I!~', who states that he is counsel for the petitioner, and _ 
states: 
Page 6 
[The petitioner 1 is a wholly owned subsidiary 
wholly owned subsidiary ofJ •••••••• jj 
•• '1 •• which in its tum is a wholly owned subsidiary 
The petItIOner also submitted a corporate organizational chart depicting 
which is a 
owned by • 
approximately 45 subsidiaries, which depicts the above-described ownership of the U.S. company. 
and its 
The director issued a request for additional evidence ("RFE") on April 13,2009. The petitioner's response to 
the RFE included a copy of the petitioner's 2008 IRS Form 1120, U.S. Corporation Income Tax Return. 
Schedule K of the Form 1 120 identifies the petitioner's 100 percent shareholder ., 
and also indicates that directly or indirectly owns 81.83% of the company's voting stock. _ 
••• according to the accompanying Form 5472, Information Return of a 25% Foreign-Owned U.S. 
Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business, is the "ultimate indirect foreign 
shareholder." Schedule L of the petitioner's 2008 IRS Form 1120 indicates that the value of the petitioner's 
common stock is $1.00. 
As noted above, the director initially approved the petition on June 1, 2009. 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 advised the petitioner in the notice of intent to revoke that USCIS had also reviewed evidence 
that was submitted with the initial new office petition. The AAO notes that the evidence submitted in support 
of the initial petition, which, as noted above is also before the AAO on appeal of a revocation, included: (1) 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 Consent of Sole Director in Lieu of Meeting dated May 22, 2008, which indicates that 
100 shares of the petitioner's stock were issued in exchange for 
consideration of $100,000. 
aclkn,)wle(lge:d 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 information 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. 
Finally, the director observed that the peltiti')ll("'s 2008 Form 1120 does not identify the claimed parent 
company, 
wholly-o,wn,ed 
explanation 
assertions. 
as the petitioner's owner, but rather indicates that the company is 
majority-owned The director requested an 
screpancy regarding ownership and evidence to support the petitioner's 
Page 7 
In a letter dated December 1, 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, priorto the filing of the initial L-IA petition. 
The petitioner submitted a copy of its executed stock certificate # 1 indicating that 100 shares of the 
company's stock were issued to ~~~~:~~:::::~loln~May 22, 2008. The petitioner also 
submitted a copy of its stock ledger indicating that is the owner of stock certificate #1 
and that it provided consideration in the amount of$100,000. The date of the transaction is not provided. 
With respect to the petitioner's 2008 tax returns, the petitioner indicated that the information 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, 2009 from its 
accounting firm further explaining the tax election the information provided on 
the petitioner's tax return. The accountant explains is an indirect owner of 81.83% of the 
U.S. company based on his 98% ownership The petitioner also provided an IRS Form 
8832, Entity Classification Election, in which it elected to be "disregarded as a 
separate entity" and nam"o 
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 confirms that $156,242.16 in obligations incurred by •••••••• 
_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 conforms 
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 
determine." Specifically, the resolution explicitly acknowledges 
_ incurring financial obligations on behalf of [the petitioner] will be considered 
adequate consideration for the shares of stock. 
petition'~r submitted copies of two invoices issued to 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. 
Page 8 
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 USCIS 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 ofthe 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 1 120, 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 
ore,vicled evidence that it ultimately accepted $156,242.16 in financial obligations incurred by_ 
on 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 ultimate parent company, in which 
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 confirm 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 
Page 9 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). [n 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 determine 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, wholly-owned subsidiary 
•• ill and an indirect wholly or majority-owned subsidiary of ••••••••• liiiiiiiiiiiiiiiii 
and There is no evidence in the record of proceeding that would suggest that the company 
has any other owner. 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 of the 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 initial 
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 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 
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 bona fide 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 for ~hich further support a finding 
that the petitioner is an company, including a "Balance des camptes genereaux" prepared for the 
petitioner by the group's consolidated financial statements. 
Page 10 
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 and/or services by a qualitying organization and does not include the mere presence of an 
agent or office of the qualitying organization in the United States and abroad. ld. 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 "qualitying organization" unless it can 
establish that it is doing business as a subsidiary of the foreign entity. 8 C.F.R. § 2l4.2(l)(2)(G). 
As the instant petition is a request for an extension of a new office petition pursuant to 8 C.F.R. 
214.2(l)(14)(ii), additional considerations must be made in determining whether the petitioner is "doing 
business." If a petition indicates that a beneficiary is coming to the United States to open a "new office," it 
must show that it is ready to commence doing business immediately upon approval. 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 commence business, that it has the financial ability to commence doing business in the 
United States, and that it will support the beneficiary in a managerial or executive position within one year of 
approval. See generally, 8 C.F.R. § 214.2(l)(3)(v). 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(l)(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. If the business is not sufficiently 
operational after one year, the petitioner is ineligible by regulation for an extension. 
Upon review of the current petition, it is apparent that the petitioner was not prepared to do business upon 
approval of its initial new office petition, and in fact has never commenced the proposed business activities 
which formed the basis ofthe initial new office petition. Moreover, the record does not support a finding that 
the petitioner has been doing business for the previous year. For these reasons, the AAO concurs with the 
director's determination that the petition was approved in error and finds that the approval of the petition was 
properly revoked. 
The petitioner has submitted in support of this petition a copy of its initial business plan as of May 2008. 
According to this business plan, had made an initial investment of $100,000 in the U.S. 
company in order to establish it as "an alcoholic beverage importer and supplier of the _ current 
and future owned brands." The business plan explains that the _ products 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: 
Page 11 
It is the intent of [the petitioner] to acquire the Basic Permit 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 permits 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 permitted 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. 
In response to the director's request for evidence in the instant matter, the petitioner advised USCIS that the 
_ "took a decision in late 2008 to contract to a third party the main functions that [the petitioner] was 
formed to perform." The petitioner explained that "distribution and marketing efforts, which we intended to 
perform in-house, were contracted to a third party after the received the financial analysis and 
recommendations of [the beneficiary]." The petitioner acknowledged that, in establishing the U.S. company, 
_ intended to assign [the petitioner] the responsibility of managing the 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 
distributorship network." 
The petitioner indicated that the beneficiary spent several months "direct[ing] the financial analysis into the 
efficacy of establishing a distribution center in the United States" and "recommended to the _ board 
that it was not financially viable or advantageous for_to establish its own distribution network from the 
ground up." The petitioner indicated that the ultimately signed a $50 million "Supply Distribution 
and Brand Management" contract with a third-party, . The petitioner is not a party to 
that contract, which went into effect on November 7, 2008, nor is it named in the contract in any capacity. 
Effective January 1, 2009, the petitioner entered an agreement to serve as "Marketing Research Consultant" in 
the U.S. market for Under the terms of the agreement, the petitioner "shall provide 
such services to_ 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 I to 
this Agreement." The petitioner agreed that "it is not entitled either to provide services as an Agent of_ 
or soliciting and/or concluding any agreement on behalf 
Page 12 
on the territory of the USA." Under the tenns of the agreement, the petitioner is required to submit a monthly 
report . and is compensated at a rate of $15,000 per month. 
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 tenns of the petitioner's agreement with indicate that the petitioner's services 
will include: advertising and promoting "name, 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 
contracted out t~ 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 contract. The petitioner also provided a list of marketing 
services performed by. 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. 
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 penn anent business 
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 bel1etici,ary 
_ 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." 
Page 13 
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 
prem ises 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 that [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" th~ the provision of "marketing consulting 
and financial management services" to the foreign entity and _ 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." 
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 the "is not a mere agent or office as it is providing the marketing and financial 
management services to is engaged in the daily direction of the work of 
_ under its contract with foreign offices." Counsel contended that, given that the petitioner is 
involved in "daily decision making 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 assembly facilities. Counsel stated that 
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 reality 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. 
Page 14 
The director also denied the petition, in part, based on the petitioner's failure to submit the requested copy of 
its IRS Form 1120, U.S. Corporation Income Tax Return, for 2008 in response to the notice of intent to 
revoke. The AAO notes that this document was submitted prior to the adjudication of the petition and was 
already in the record when the director requested it. Therefore, the director's adverse finding with respect to 
the petitioner's failure to submit it will be withdrawn. 
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 0 in the United 
States; evidence of marketing events and materials for the_ brand in 2008 and 2009; sample emails 
showing the beneficiary's daily communication with. 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 asserts that the director improperly discounted or disregarded much of the evidence because it post­
dated the filing of the petition, but failed to acknowledge evidence that was dated prior to or contemporaneous 
with the filing of the petition. Counsel further contends that evidence that post-dates the filing of the petition 
remains "entirely probative of whether Petitioner is actively doing business in the United States." Counsel 
states that the petitioner "met the requirements for approval of its L-I A petition on behalf of [the beneficiary 1 
at the time of filing" as evidenced by the approval ofthe petition, and "did not make any 'material changes' to 
the petition after it was filed in April 2009" and approved in June 2009. 
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 and at the time the instant 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 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 WGS 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 1 
existence. n 
Counsel concludes by stating that the petitioner has sufficient funds to pay its sole employee and that the 
_ employees who provide marketing and distribution services to "are employed by_ 
and work pursuant to that company's contract with 
Page 15 
Upon review, the AAO concurs with the director's detennination that the petitioner failed to demonstrate that 
the U.S. company is doing business as required by the regulations. 
As a preliminary matter, as the instant petition was filed to request an extension of a petition that involved a 
new office, the petitioner is required to establish that it has been doing business as defined at 8 C.F.R. § 
214.2(1)(2)(H) for the previous year. Again, 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. 8 C.F.R. § 214.2(J)(3)(v). 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 
Here, 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 current petition, it is apparent that the petitioner was not prepared to commence doing 
business upon approval of its initial new office petition. The petitioner did not have capital in the fonn 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 penn its needed to operate the type of 
business it claimed it would operate. As noted above, the approval of the initial new office petition has also 
been revoked. 
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 penn its 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. 
The extension of the new office petition hinges on the petitioner's ability to demonstrate that it has been doing 
business as defined in the regulations, and as proposed in the business plan that formed the basis of the new 
office approval, for the previous year. Here, the petitioner has documented no business activities in 2008, 
despite the fact that the beneficiary'S L-IA classification petition was 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 uscrs when the initial petition was filed. For the reasons discussed above, this is not a 
Page 16 
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 has not satisfied the regulatory requirement to establish that it has been doing business for the 
previous year pursuant to 8 C.F.R. § 214.2(l)(l4)(ii)(B). Accordingly, the approval of the petition involved 
gross error, and the petition approval was properly revoked pursuant to 8 C.F.R. § 214.2(l)(9)(iii)(5). 
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. Given the substantial and material 
changes made to the petitioner's original business plan, the filing of a new L-l petition would have been more 
appropriate than seeking an extension of a petition involving a "new office" that never materialized. 
The director also addressed whether the petitioner was doing business at the time of filing the instant petition 
requesting an extension of the beneficiary's L-IA status. 
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 _taff "under the 
contract between_and [the petitioner]." Counsel also asserts that the petitioner exists due to "the need for 
local, daily management of the_ brand 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 and_ and is not named in that contract. If there 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 The agreement gives 
the petitioner no specific management authority over _ no 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 t~ 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 "SPI") 
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 and/or provide approvals and make material decisions on behalf of 
SPI; (ii) solicit, negotiate, conclude, authorize any sales, display, storage or maintenance of 
products o. or (iii) represent itself or through its employees as agents or employees of 
SPI. 
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. 
Page 17 
§ 214.2(l)(I)(ii)(H). The U.S. company, in its current configuration, and pursuant to the terms of its 
agreement with_ 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. [d. 
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 IOI(a)(44)(A) of the Act, 8 V.S.c. § 1 10 1 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) supervises and controls the work of other supervISOry, professional, or 
managerial employees, or manages an essential function within the organization, 
or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority 
to hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly 
supervised, functions at a senior level within the organizational hierarchy or with 
respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section IOI(a)(44)(B) of the Act, 8 V.S.C. § 1 10 1 (a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of 
the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
Page 18 
(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. 
As this petition seeks to extend a petition which involved the opening of a new office, the petitioner is 
required to submit a statement of the duties performed by the beneficiary for the previous year and the duties 
the beneficiary will perform under the extended petition. The petitioner is also required to submit a statement 
describing the staffing of the new operation, including the number of employees and types of positions held 
accompanied by evidence of wages paid to employees when the beneficiary will be employed in a managerial 
or executive capacity. 8 C.F.R. §§ 214.2(l)(14)(ii)(C) and (D). 
In its letter dated March 24, 2009, the petitioner described the beneficiary's position as Director of Finance and 
Marketing as a managerial position, specifically a "financial management" position. The petitioner indicated that 
the beneficiary's responsibilities include the following: 
• 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 SPI Group's 
budgetary outlines; 
• Present [the petitioner's] performance to SPI Group's 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 continue to supervise the preparation of [the petitioner's] fmancial 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 _ continued interest in the US market, which is one of our most profitable 
markets, and its revenue expectations for [the petitioner], [the beneficiary] will continue 
directing [the petitioner's] financial balance sheet and reporting upon the progress of [the 
petitioner] to_directors on a regular basis. She will also be closely monitoring the 
Group's capitalization in [the petitioner] and evaluating the need for further investments into the 
company .... [The beneficiary] will be strategizing on [the petitioner's] ability to generate 
revenue, its potential areas of profitability, and possible business alliances. 
Page 19 
The petitioner indicated the focus of the u.s. company is to provide "auxiliary marketing services for_ 
in the US on marketing of ' Specifically, the petitioner stated that the petitioner will "fulfill 
the whole range of auxiliary marketing services for ••• iI •••••• IIIII!~~ 
company of the holding engaged in supply and distribution of the nn)lilllc.t, 
USA through the exclusive distributor on this territory[,] 
that these auxiliary marketing services would include the following: 
on the territory of the 
The petitioner indicated 
• Advertising and promoting ••••• name, brands and business through advertising 
agencies, media and other means 
• Market research on the US Territory, including focus group studies, demand and preferences 
of consumes [sic], category fluctuations (consumption decline/increase), brands recognition 
research in comparison to several different territories and other services, 
• Provision of assistance to the distribution company of the holding in relation to 
merchandising and marketing strategies on different markets 
• Services related to organizing andlor participation in promotional events to promote and 
advertise the products o~ (trade fairs, exhibitions, etc.) including the same on 
different territories besides the territory of the USA 
• Provision of marketing support services such as preparing and filing the documents for 
advertising and promotional events which may cover other territories besides the territory of 
the USA 
• Collecting relevant data and reporting on the marketing strategies, advertising and 
promotional events and products of the competitors, including the same on different 
territories besides the territory of the USA 
In support of the petition, and further to the petitioner's provision of "auxiliary marketing services," the petitioner 
submitted a copy of an agreement between the petitioner, as "Marketing Research Consultant," and •••• 
under which the petitioner agrees to provide the above-referenced services. Although the 
are affiliated parties, the agreement provides that the petitioner "is not entitled 
either to as an of Recipient_ or soliciting and/or concluding any agreement on 
behalf of the Recipient related to marketing, sales and distribution of products of Recipient on the territory of the 
USA." Under the terms of the agreement, the petitioner is to provide the or upon 
request" The agreement indicates that is to provide the 
petitioner ' necessary to carry out the SerVl(:es. 
In the RFE issued on April 13,2009, the director requested that the petitioner submit, inter alia, the following: (1) 
evidence of the staffing of the U.S. entity, including the number of employees, the duties performed by each 
employee, and the management and personnel structure of the company; (2) a breakdown of the number of hours 
devoted to each of the beneficiary'S proposed job duties on a weekly basis; (3) an organizational chart for the U.S. 
entity, as well as complete job descriptions for all U.S. employees; (4) a comprehensive description of the 
beneficiary's position identifYing how the position qualifies as managerial or executive in nature; and (5) 
complete copies of the petitioner IRS Forms 941, Employer's Quarterly Federal Tax Return, for 2008. 
In response to the RFE, the petitioner explained that the beneficiary "oversees all finance and marketing efforts in 
the United States." In response to the director's request for an organizational chart and evidence of the petitioner's 
staffing levels, the petitioner stated: 
Page 20 
We wish to acknowledge that [the petitioner] does not have direct staffing in the U.S., but that 
[the beneficiary] nonetheless manages the work of financial and marketing professionals who are 
direct employees of other organizations. This is because _ ... took a decision in late 
2008 to contract to a third party the main functions that [the petitioner] was formed to perform. 
Specifically, distribution and marketing efforts, which we intended to perform in-house, were 
contracted to a third party after the received the financial analysis and 
recommendation of [the beneficiary]. Thus, instead of establishing a large organization to 
distribute our products in the USA ... we have an independent distributor for that 
purpose. The . has assigned six marketing managers, 
including a Vice President Commercial Strategy, Stolichnaya, to work on 
distribution and marketing exclusively for_ ... Given that the U.S. is our biggest market, it 
is essential that we have a talented financial manager like [the beneficiary] on the ground to 
directly monitor the efforts of _ behalf. 
The petitioner stated that, in addition to supervising the. personnel, the beneficiary "relies upon the efforts of 
our accounting team in Cyprus to provide her with critical financial data." The petitioner indicated that, based on 
the availability of the _ personnel and the parent company's accounting staff, the U.S. company "does not 
have the need for an extensive U.S. operation." 
The petitioner submitted a copy of the "Supply, Distribution and Brand Management Agreement" between_ 
••••••••••••••••••••••••. As discussed above, the petitioning entity is not a 
party to the agreement, nor is it mentioned in the agreement. The contract provides that. is "solely 
responsible for the management, direction, control, supervision and compensation of its own employees." The 
petitioner also provided a letter from of_confirming that his company has designated six full-
time professionals to work exclusively on _ contract with _ These include a 1IfII1III1III1III1III1II!!I 
position's general function. 
The petitioner explained that, as. acts as distributor and is responsible for marketing, advertising and 
promotion of the group's products, Cle of the petitioning company is to "monitor our relationship with_' 
In this regard, the petitioner stated: 
Given the size of our contract with_ and the importance to the _ there are several 
components ofthe contract with_that contain key financial provisions that must continue to 
be overseen by [the petitioner] and more specifically, [the beneficiary]. The analysis of the 
performance and financial data is essential to determine the success of our efforts in the U.S. 
market. 
The petitioner emphasized that the _ contract with. requires. to keep complete and accurate 
books and records documenting and substantiating its expenditures; to prepare monthly and quarterly reports 
regarding net sales and value of shipments of products by product and sub-distributor, by state; and to provide 
written forecasts and purchase orders for products to facilitate the efficient manufacture and shipment of products. 
The petitioner further stated: 
Page 21 
• is responsible for monitoring and supervising the sales strategy developed and carried out by 
_ providing advice regarding the price strategy developed by supervising the volume 
budget and objectives developed by _; supervising, controlling and monitoring distributor 
performance standards; and monitoring inventol)' control; and advising on the sales and 
operations processes. [The beneficiary] is designated by.to oversee_ compliance with 
these provisions and to ensure performance under the contract. _ provides financial and 
marketing data to. and [the beneficiary] directs the preparation of analysis and reports that 
she uses to make recommendations to our Board regarding the performance of that key contract. 
The petitioner further indicated that it has assigned certain marketing services, which are identical to those listed 
in the petitioner's marketing consultant agreement with its parent company, to _ and that the provision of 
such services is directed by the beneficiary. The petitioner submitted copies of e-mail correspondence that the 
beneficiary has exchanged with _ marketing staff "to show her regular involvement in major marketing 
initiatives," and "the close supervision that [the beneficiary] provides to the marketing professionals at _." 
The petitioner indicated that the e-mails show that the beneficiary "is intimately involved in the 
strategies produced by _" and overseeing a major advertising campaign for the company's 
The petitioner emphasized that the beneficiary does not design marketing materials, but rather oversees marketing 
and publicity efforts. 
On October 30, 2009, the director issued a Notice of Intent to Revoke, in which the director noted that, pursuant 
to telephone interviews with the beneficial)' and the petitioner's director, the beneficiary's duties appear to be 
limited to overseeing the contract between despite the fact that the petitioning entity is not a 
party to that contract. The director requested additional evidence to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity, including: (1) 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 of IRS 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 financial performance of~nd _ under the distribution and marketing 
contract and to direct _ marketing efforts on behalf of ~ .... [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 VIII of the _ 
contracts contains several provisions that govern the volume and price for purchases of 
•••••. 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 - I S% 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] revIews investment 
opportunities for [the petitioner] as well as for the _ The is diversified 
into a variety of sectors other than vodka such as agriculture, wine, hospitality, retail and 
real estate. As investment opportunities arise, [the beneficiary] evaluates them financially 
and reports to corporate headquarters her opinions regarding whether. will invest. S% 
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 advisers. [The petitioner] works 
with several professional service finns .... [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] perfonnance to the _ directors. [The beneficiary] 
reports regularly to the corporate directors regarding the financial perfonnance of the U.S. 
operations. She is [in] daily contact with. 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 perfonnance of U.S. operations. [The beneficiary] is 
responsible for overseeing perfonnance in the U.S., where _ expects that the greatest 
growth in _ market share -. has set a target of doubling the volume of sales 
Page 23 
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 1 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, 
three new labels, and 
beneficiary] has managed the U.S. rollout of each of these brands and the development of 
brand recognition. As the [attached emails] show, [the beneficiary] is in daily 
communication with_ about branding and marketing opportunities for new brands. As 
the emails show, the brand managers and marketing professionals seeks the approval of_ 
for marketing initiatives. The oversight and obtaining approval of 
marketing initiatives In the Group's most important market is 
performed by [the beneficiary]. This effort occupies at least 20% of her time. 
• 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 
daily effort. [The 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 _ professionals who are dedicated to the.account." 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 will be employed in a primarily managerial or executive capacity under the extended petition. The 
director observed that the petitioner's statements regarding the beneficiary's duties identifY "general managerial 
functions" and fail to specifY what the beneficiary will be doing to qualifY 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." 
Page 24 
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 of _ under the terms of its contract with the _ 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 the_ [the beneficiary] oversees distribution and 
manages the marketing efforts of _ in the company's most important and profitable 
market, the United States. And although 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 
Stolichnaya account. 
Counsel refers to the e-mail exchanges between the beneficiary and the _ 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 that the e-mail evidence demonstrates that 
the beneficiary "has authority to demand personnel actions." 
Counsel further contends that the director based his decision, in part, on the small size of the pelltlOning 
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 that, 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 the 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 the 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, the petitioner asserts that the 
beneficiary "does not perform the marketing duties, but makes decisions about marketing initiatives designed and 
developed b~ marketing professionals, including how to spen~ marketing budget and how to position 
StoliChniia 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 that the beneficiary is clearly charged 
with managing this essential function. 
Upon review, and for the reasons discussed below, counsel's assertions are not persuasive. The petitioner has not 
established that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Therefore, the director properly revoked the approval of the petition pursuant to 8 C.F.R. § 
214.2(1)(9)(iii)(5), in that the initial approval of the petition constituted "gross error." As discussed above, 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. 
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 
Page 25 
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 will be primarily managerial or executive in nature. 
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, signed just three months before the petition was 
filed and presumably still in effect, 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, 
merchandising and marketing strategies, performing services related to 
planning, arranging and/or participation in promotional events, provision of market support services, and 
collecting relevant data regarding the marketing and events of the 
petitioner'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 
WGS contract are not persuasive. 
Therefore, while the petitioner claims that_ intended for the U.S. company, through the beneficiary, 
to provide overall marketing and financial oversight of its contract with _ it has not explained why such 
management functions are not included in the agreement between the parties. 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, 59 I -92 (BrA 1988). 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 pelltlOner has "tremendous 
responsibilities to the _" and that the company is charged with managing "the financial performance 
and marketing activities of _in the United States." As noted above, 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 agents or employees of •. As the beneficiary is represented 
to .as an employee of the petitioner, and not., it follows that her authority is similarly limited. Given 
Page 26 
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 
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 spends more than 50 percent of her time 
on 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 
that the _ "brand managers and marketing professionals seek the approval o~ 
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 10 I (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter o/Church Scientology Intn '/., 19 I&N Dec. 593,604 (Comm. 1988). 
In light of the above, the record does not support a conclusion that the beneficiary's duties are primarily 
managerial or executive in nature. The fact that the beneficiary manages a business, regardless of its size, 
does not necessarily establish eligibility for classification as an intracompany transferee in a managerial or 
executive capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 
(Feb. 26, 1987). 
Page 27 
Beyond the required description of the job duties, U ,S, Citizenship and Immigration Services (USerS) 
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. § IIOI(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(l)(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(l)(1)(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 the _ account. While the beneficiary frequently interacts with 
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 of •. 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 (ED. Tenn. 
2003) (Cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (ED. Tex. Jan. 11,2007)). The 
petitioner has not established that the beneficiary possesses a significant degree of control or authority over 
any_ staff. In fact, it does not appear that possesses this level of authority over _ 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 andlor personal composition of_ 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 petitioning company'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. § IIOI(a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
Page 28 
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 over _ 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 management responsibility over the financial and marketing performance of 
_ under its agreement with the _ overseas. The beneficiary appears to act as a liaison between 
the and _, but does 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 the 
_ for all of North America is simply not supported by the evidence for the reasons already discussed. 
The AAO acknowledges counsel's assertions that a company's size alone, without taking into account the 
reasonable needs of the organization, may not be the determining factor in denying a visa to a multinational 
manager or executive. See § 101 (a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, in reviewing the 
relevance of the number of employees a petitioner has, federal courts have generally agreed that USClS "may 
properly consider an organization's small size as one factor in assessing whether its operations are substantial 
enough to support a manager." Family Inc. v. Us. Citizenship and Immigration Services 469 F. 3d 1313, 1316 
(9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin 
Bros. Co. v. Sava. 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting. Inc. v. INS, 293 F. Supp. 
2d 25, 29 (D.D.C. 2003)). It is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees 
who would perform the non-managerial or non-executive operations of the company, or a "shell company" 
that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. 
Supp. 2d 7,15 (D.D.C. 2001). 
Furthermore, in the present matter, the regulations provide strict evidentiary requirements for the extension of 
a "new office" petition and require USClS to examine the organizational structure and staffing levels of the 
petitioner. See 8 C.F.R. § 214.2(l)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new 
office" operation one year within the date of approval of the petition to support an executive or managerial 
position, pursuant to the plans presented in support of the new office petition. There is no provision in USClS 
regulations that allows for an extension of this one-year period. If the business does not have sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and administrative 
tasks, the petitioner is ineligible by regulation for an extension. Again, the petitioner acknowledged that it 
intended at the time it filed the new office petition to hire "an extensive workforce," and is instead operating a 
one-person marketing consulting business with one client. In the instant matter, the petitioner has not reached 
the point that it can employ the beneficiary in a predominantly managerial or executive position. 
Accordingly, the appeal will be dismissed. 
Page 29 
III. 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. Accordingly, the appeal will be dismissed. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. [n visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 29 [ of the Act, 8 V.S.c. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.