dismissed L-1A Case: Apparel

idmtiQiqg &ta &Id trr. 
prevent d2fy mwmmtd 
invasion of personal priv~y 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 
 1 10 1 (a)(15)(L) 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
EAC 07 159 53608 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seelung to employ the beneficiary as its vice president of 
marketing and sales as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a limited liability 
company organized under the laws of the State of New York and is allegedly in the apparel business. 
Treating the petitioner as fully formed entity, the director denied the petition concluding that the petitioner did 
not establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. In the alternative, while the director determined that the petitioner did not establish that it is a "new 
office" as defined in the regulations, the director further determined that, even if it were a "new office," the 
petitioner failed to establish that the beneficiary will be employed in a managerial or executive capacity 
within one year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director 
erred, that the petitioner is a "new office," and that the beneficiary's duties will primarily be those of a 
manager within one year. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(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 hirnlher to perform the intended 
EAC 07 159 53608 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
In addition, the regulation at 8 C.F.R. 
 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been 
secured; 
(B) 
 The beneficiary has been employed for one continuous year in the 
three year period preceding the filing of the petition in an executive 
or managerial capacity and that the proposed employment involved 
executive or managerial authority over the new operation; and 
(C) 
 The intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial 
position as defined in paragraphs (l)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial 
ability of the foreign entity to remunerate the beneficiary and 
to commence doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(F) defines a "new office" as: 
[A]n organization which has been doing business in the United States through a parent, 
branch, affiliate, or subsidiary for less then one year. 
Moreover, the regulation at 8 C.F.R. fj 214.2(1)(l)(ii)(H) defines "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods and/or services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
A threshold issue in this matter is whether the petitioner is a "new office" as a defined by the regulations. 8 
C.F.R. fj 2 14.2(1)(l)(ii)(F). 
The instant petition was filed on May 11, 2007. 
 The petitioner asserts in the Form 1-129 that it was 
EAC 07 159 53608 
Page 4 
established in 2005 and that the beneficiary is not coming to the United States to open a "new office." In 
support of the petitioner, the petitioner submitted its 2005 United States tax return indicating that it had 
$53,673.00 in revenue in that year. The petitioner also submitted a copy of correspondence indicating that it 
had opened a bank account in the United States in October 2005. 
In response to the director's Request for Evidence, counsel submitted a letter dated July 5, 2007 in which it 
asserts that the petitioner should be considered to be a "new office" under the regulations. The petitioner 
describes its presence in the United States as follows: 
The petitioner has been established in 2005 to engage in marketing, sales and distribution of 
the products of [the foreign employer] in the United States and Canada. Since its 
establishment, the petitioner has not hired any employees to engage in marketing, sales and 
distribution activities in the United States. Instead, the employer abroad has so far preferred 
to conduct the marketing, sales and distribution of its products in the United States through 
use of independent contractors on a commission basis. 
Through the business strategy of conducting the United States operations through 
independent contractors, the petitioner has been able to make gross sales of $233,594.00 in 
2006. 
The petitioner also submitted a copy of its 2006 United States tax return, which indicates that it had 
$233,594.00 in gross receipts or sales in that year. 
On July 17,2007, the director denied the petition. The director concluded that, because the record establishes 
that the petitioner "has been operational for over a year as of the date of filing of the present petition," the 
petitioner is not a "new office" and, thus, the petitioner must establish that the beneficiary will be employed in 
a primarily managerial or executive position immediately upon petition approval. 
On appeal, counsel argues that the petitioner meets the definition of a "new office" in the regulations. 
Counsel argues in the brief as follows: 
Although, the petitioner has been established in 2005, it has never matured into a fully- 
functional office i.e., no full-time employees other than one independent contractor 
shareholder, no physical premises of its own, and not a U.S. corporate bank account. The 
petitioner has filed corporate (partnership) income tax returns because, although at 
insignificant levels, has had U.S. based trading activities as income [sic]. 
Upon review, counsel's assertions are not persuasive in establishing that the petitioner is a "new office" as 
defined in the regulations. 
As noted above, a "new office" is an organization which has been "doing business" in the United States 
through a parent, branch, affiliate, or subsidiary for less then one year. 8 C.F.R. 4 214.2(1)(l)(ii)(F). "Doing 
EAC 07 159 53608 
Page 5 
business" is, in turn, defined in part as "the regular, systematic, and continuous provision of goods andlor 
services." In this matter, the record establishes that the petitioner has been "doing business" in the United 
States since 2005, which is more than one year prior to the filing of instant petition on May 11, 2007. The 
petitioner has had substantial and continuous revenue since its establishment in the United States and has 
conducted its business through one or more independent contractors, which were compensated on a 
commission basis. Also, contrary to the assertions of counsel on appeal, the record indicates that the 
petitioner established a banking relationship with the New York branch of Dresdner Bank AG in October 
2005. The fact that the petitioner did not have "employees" or a dedicated place of business will not allow a 
petitioner to be classified as a "new office" if the petitioner had otherwise conducted business in a regular, 
systematic, and continuous manner for at least one year. Furthermore, it does not appear that the petitioner's 
business activities amount to being a "mere presence of an agent or office" in the United States. 
Finally, and importantly, the petitioner in this matter did not claim that it was a "new office" until responding 
to the director's Request for Evidence. As noted above, the petitioner specifically averred in the Form 1-129 
that the beneficiary was not coming to the United States to open a new office. The regulation at 8 C.F.R. 5 
103.2(b)(8) defines the scope of a response to a request for evidence. If a director requests additional 
evidence, as the director did in this case, the petitioner may either submit all the requested evidence, submit 
some or none of the evidence and ask for a decision on the record, or withdraw the petition. See 8 C.F.R. tj 
103.2(b)(8)(i)-(iii). In this case, the petitioner essentially sought to materially amend the Form 1-129 by 
claiming that the beneficiary will open a "new office" in the United States. Such an attempted amendment is 
improper and is not permitted by the regulations. If the petitioner had concluded that its petition was 
defective, it should have withdrawn the petition and filed a new petition which it felt was conforming to the 
"new office" regulations. 
Accordingly, as the director correctly determined that the petitioner is not a "new office" as defined by the 
regulations, the primary issue in the present matter is whether the petitioner has established that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 1 101(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 
EAC 07 159 53608 
Page 6 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act, although counsel on appeal appears to limit the beneficiary to the managerial classification. A 
petitioner may not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on 
partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that the 
petitioner is asserting that the beneficiary will be employed as either a manager or an executive and will 
consider both classifications. 
The petitioner describes the beneficiary's proposed duties in a letter dated April 24,2007 as follows: 
[The beneficiary] will fill the position of Vice President of Marketing and Sales at the US 
employer in its New York office located in Levittown, NY. This position is a key 
managerial/executive one within the company, because it is the Vice President of Marketing 
and Sales who brings together the marketing and sales team to develop and work on each 
account, supervises subordinates' work, sets standards for the work and general guidelines for 
each customer account, which must be followed and executed by their account 
representatives. The Vice President will control and supervise that customers' orders on each 
account is serviced adequately and on schedule. He will coordinate the work of outside 
contractors who are engaged to perform marketing and sales related services on existing 
accounts. 
The Vice President of Marketing and Sales will be responsible for account representatives, 
sales persons and support staff to service the US employer's customers. He will have day-to- 
day discretionary authority in coordinating and directing the work of the marketing 
department and is responsible for proper administration of internal operations. He will 
evaluate the performance of marketing and sales department personnel and will be authorized 
EAC 07 159 53608 
Page 7 
to hire and fire of personnel. As the person responsible for marketing, and sales, he will 
spend majority of his time coordinating the work of each professional reviewing quality of 
work performed for conformity to the standards of the employer abroad. Strong managerial 
slulls, understanding of the textile markets, marketing and sales are essential skills needed for 
the important marketing and functions all of which will be performed by the Vice President 
of Marketing and Sales. 
The beneficiary's responsibilities within the US employer will also include the following: 
Planning, directing and coordinating company activities in relation to 
operations, services, and business organization; 
Developing long-term company goals and objectives; 
Conducting reviews of company activities to analyze and determine costs, 
future activities, profits and losses, expenditures, and progress; 
Managing the current employees andlor hiring new employees. 
The petitioner claims in the Form 1-129 to have one employee. 
On May 25, 2007, the director requested additional evidence. 
 The director requested, inter alia, job 
descriptions for all of the employees of the United States operation; an organizational chart for the United 
States operation; copies of all Forms W-2 issued to employees in 2006; copies of quarterly tax returns ending 
in March 2007; and duty descriptions for any independent contractors employed by the petitioner. 
In response, counsel submitted a letter dated July 5, 2007 in which counsel explains that the petitioner does 
not have, and never had, any employees. The foreign employer has instead employed an independent 
contractor, a business entity located in California, to sell products on a commission basis. Counsel asserts 
that: 
As soon as the beneficiary obtains the L-1A visa and starts his employment at the petitioner, 
he will develop his own marketing and sales team. For this purpose, he will initially hire two 
employees to engage in marketing and sales activities for the petitioner. 
The petitioner also submitted a proposed organizational chart indicating that, eventually, the beneficiary will 
supervise both office staff and sales associates. 
On July 17, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, in the context of also arguing that the petitioner is a "new office," counsel asserts that the 
beneficiary's duties will primarily be those of a manager. 
Upon review, counsel's assertions are not persuasive in establishing that the beneficiary will perform 
qualifying duties immediately upon petition approval. 
EAC 07 159 53608 
Page 8 
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. tj 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. As explained above, a petitioner 
may not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial 
sections of the two statutory definitions. 
As a threshold issue, it must be noted that the petitioner, as a fully formed business entity since 2005, must 
establish that the beneficiary will perform qualifying duties immediately upon petition approval. Future 
hiring plans and employees hired after the filing of the instant petition are not relevant to the instant analysis. 
The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition 
may not be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); 
Matter of Katigbak, 14 I&N Dec. 45,49 (Comrn. 1971). If the petitioner cannot establish that the beneficiary 
will be relieved from the need to perform primarily non-qualifying administrative or operational tasks by a 
subordinate staff immediately upon petition approval, the petitioner will not be eligible for the benefit sought. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will plan, direct, and coordinate 
"company activities in relation to operations, services, and business organization" and will develop "long- 
term company goals and objectives." The petitioner also asserts that the beneficiary will spend a "majority" 
of his time coordinating the work of each "professional" under his supervision. However, the petitioner does 
not specifically define any of these company activities, goals, or objectives. Furthermore, the petitioner does 
not explain what, exactly, the beneficiary will do in "coordinating" the work of each subordinate 
"professional" when the record indicates that the petitioner does not yet employ any subordinate workers for 
the beneficiary to supervise and control. Finally, general managerial-sounding duties such as being 
"responsible for proper administration of internal operations" are not probative of the beneficiary actually 
performing qualifying duties. The fact that the petitioner has given the beneficiary a managerial or executive 
title and has prepared a vague job description which includes inflated job duties does not establish that the 
beneficiary will actually perform primarily managerial or executive duties. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting 
the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of Califounia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Likewise, many of the duties ascribed to the beneficiary appear to be non-qualifying administrative or 
operational tasks which will not rise to the level of being managerial or executive in nature, especially in view 
of the petitioner's lack of a subordinate staff. For example, the petitioner asserts that the beneficiary will be 
primarily engaged in performing marketing and sales related duties. However, the record does not establish 
that the beneficiary will be relieved from performing the non-qualifying tasks inherent to these duties by a 
EAC 07 159 53608 
Page 9 
subordinate staff. 
 Sales and marketing tasks are non-qualifying administrative or operational tasks. 
Moreover, even assuming the employment of the proposed clerical, sales, and marketing employees described 
in the record, the petitioner has failed to establish that these employees will be supervisory, managerial, or 
professional (see infra) and that the beneficiary's first-line supervisory functions pertaining to these 
prospective employees will be non-qualifying as well. As the petitioner has indicated that the beneficiary will 
devote most of his time to these non-qualifying tasks, it has not been established that he will be "primarily" 
employed as a manager or an executive. An employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593,604 (Comm. 1988). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
First, as noted above, the beneficiary will be the petitioner's first and only employee. For this reason alone, 
the petitioner has failed to establish that the beneficiary will be employed in a managerial capacity. Second, 
even assuming the employment of the prospective clerical, sales, and marketing employees described in the 
record, these employees have not been described as having supervisory or managerial responsibilities. To the 
contrary, these employees are described as performing sales, marketing, and clerical tasks. In view of the 
above, it appears that the beneficiary will be primarily a first-line supervisor of non-professional workers, the 
provider of actual services, or a combination of both. A managerial employee must have authority over day- 
to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees 
are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N 
Dec. at 604. Moreover, as the petitioner failed to establish the skills required to perform the duties of the 
subordinate positions, the petitioner has not established that the beneficiary will manage professional 
employees.' Therefore, the petitioner has not established that the beneficiary will be employed primarily in a 
managerial capacity.* 
1 
In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 8 1 101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. 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. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written 
EAC 07 159 53608 
Page 10 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce what the beneficiary' will do on a day-to-day basis. 
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line 
supervisor and will perform the tasks necessary to produce a product or to provide a service. Finally, given 
that the beneficiary will report directly to the petitioner's primary owner and company president, it appears 
that any realistic authority to direct the organization will be vested in this individual and not in the 
beneficiary. Therefore, the petitioner has not established that the beneficiary will be employed primarily in an 
executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that Citizenship and Immigration Services (CIS) "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 13 13, 13 16 (9' 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). Furthermore, it is 
appropriate for CIS 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 
-- -- 
job offer that clearly describes 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. 8 214.2(1)(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. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record establishes that the beneficiary will primarily perform non-qualifying administrative or 
operational tasks and, assuming the employment of the proposed subordinate workers, he will be a first-line 
supervisor of non-professional employees. Absent a clear and credible breakdown of the time spent by the 
beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be 
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager. 
See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
EAC 07 159 53608 
Page 11 
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. 200 1). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that rea~on.~ 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad 
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. $8 
2 14.2(1)(3)(iii)-(iv). 
The foreign employer described the beneficiary's duties abroad in a letter dated April 24,2007 as follows: 
The beneficiary has been working with the employer abroad as the Director of Sales since 
May 2004 without any interruptions. In this position, the beneficiary islhas been responsible 
for marketing and international sales of men's and women's sportswear lines Claudio 
Campione and Lisa Campione. The beneficiary ishas been responsible for the coordination 
and supervision of the marketing and sales departments of the employer abroad operations 
3 
It is noted that the director concluded in the alternative that, even if the petitioner had established that it met 
the definition of a "new office" under the regulations, the petitioner failed to establish that the beneficiary will 
be employed in a managerial or executive capacity within one year. 8 C.F.R. 8 214.2(1)(3)(v)(C). The 
director concluded that, even if the proposed workers were eventually hired by the petitioner, the record is 
still not persuasive in establishing that the beneficiary would perform qualifying duties within one year. 
Upon review, the AAO concurs with this alternative determination. Given the beneficiary's vague job 
description and the petitioner's failure to specifically describe the proposed duties of the prospective 
subordinate workers, the record is not persuasive in establishing that the beneficiary will be relieved of the 
need to perform primarily non-qualifying tasks within one year of petition approval. Furthermore, as 
discussed supra, the record is not persuasive in establishing that the prospective clerical, sales, and marketing 
employees will be supervisory, managerial, or professional employees. Therefore, at most, the beneficiary 
will be a first-line supervisor one year after petition approval. As noted above, a managerial or executive 
employee must generally have authority over day-to-day operations beyond the level normally vested in a 
first-line supervisor. See Matter of Church Scientology International, 19 I&N Dec. at 604. 
In addition, the record is not persuasive in establishing that the United States operation will rapidly expand to 
the point where, within one year, there would be an actual need for a manager or executive who will primarily 
perform qualifying duties. 8 C.F.R. 4 214.2(1)(3)(~). For example, as evidence that the petitioner has secured 
sufficient premises to house the claimed "new office," the petitioner submitted a residential lease dated April 
27, 2007 which clearly states in paragraph 7 that "[tlhe demised premises shall be used and occupied by 
Lessee exclusively as a private single family residence, and neither the premises nor any part thereof shall be 
used at any time during the term of this lease by Lessee for the purpose of carrying on any business, 
profession, or trade of any kind." It is not credible that an apartment lease which specifically prohibits the 
petitioner from carrying on its business would permit the United States enterprise to grow to the point where, 
within one year, there would be an actual need for a manager or executive who will primarily perform 
qualifying duties. 8 C.F.R. 8 214.2(1)(3)(v)(A). 
EAC 07 159 53608 
Page 12 
from Istanbul, Turkey. The beneficiary has supervisory control over the recruitment and 
training of marketing and sales staff, over which he exercised hiring and firing authority. He 
has been the driving force within the organization expanding the employer abroad's 
worldwide marketing and sales activities. In this current position as Director of Sales, the 
beneficiary coordinates, directs and supervises the employer abroad's overseas marketing and 
sales operations. He exercises complete day-to-day discretionary authority over the work of 
the marketing and sales divisions of the employer abroad. 
The beneficiary's job duties at the employer abroad also include the following: 
Directing the marketing and sales operations; 
Managing administrative affairs; 
Negotiating contracts and entering into agreements on behalf of the 
company; 
Developing and implementing long-term goals and plans; 
Overseeing the company's policies and strategies; and, 
Coordinating, interviewing, training, and managing managerial and support 
staff. 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
managerial or executive capacity. In support of the petition, the petitioner has submitted a vague and non- 
specific job description which fails to sufficiently describe what the beneficiary did on a day-to-day basis. 
General managerial-sounding duties such as "directing the marketing and sales operations" and "managing 
administrative affairs" are not probative of the beneficiary actually performing qualifying duties. The fact 
that the petitioner has given the beneficiary a managerial or executive title and has prepared a vague job 
description which includes inflated job duties does not establish that the beneficiary actually performed 
managerial or executive duties. Specifics are clearly an important indication of whether a beneficiary's duties 
were primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter 
of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. 
Furthermore, the petitioner failed to describe the duties of the beneficiary's purported subordinates abroad, if 
any. Absent detailed descriptions of the duties of both the beneficiary and his purported subordinates, it is 
impossible for CIS to discern whether the beneficiary was "primarily" engaged in performing managerial or 
executive duties abroad. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). It is also impossible to discern whether the beneficiary 
supervised and controlled the work of other supervisory, managerial, or professional employees, or managed 
an essential function of the organization. As noted above, a managerial or executive employee must generally 
have authority over day-to-day operations beyond the level normally vested in a first-line supervisor. See 
Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary was employed abroad in a primarily 
managerial or executive capacity for one continuous year in the three years preceding the filing of the 
petition, and the petition may not be approved for this reason. 
EAC 07 159 53608 
Page 13 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.