dismissed L-1A Case: Apparel

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 07 010 5 1733 Office: VERMONT SERVICE CENTER Date: APR 2 3 ZM)~ 
Petition: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 10 1 (a)(l 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
,Robert P. Wiemann, Chief 
ki" 
drninistrative Appeals Office 
EAC 07 010 51733 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimrnigrant petition seeking to employ the beneficiary in the position of "chief 
marketing and financial officer" to open a new office in the United States as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a limited liability company organized under the laws of the State of 
New Jersey, is allegedly in the apparel business. 
The director denied the petition concluding that the petitioner failed to establish that the United States 
operation will support an executive or managerial position 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 asserts that the petitioner has established 
that the beneficiary will perform qualifying duties within one year of petition approval. In support of the 
appeal, counsel submits a brief, which further addresses the petitioner's future hiring plans and personnel 
structure. 
To establish eligibility for the L-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 4 214.2(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 hidher to perform the intended 
services in the United States; however, the work in the United States need not be the 
EAC 07 010 51733 
Page 3 
same work which the alien performed abroad. 
In addition, the regulation at 8 C.F.R. 4 214.2(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. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 3 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, 
fimctions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
EAC 07 010 51733 
Page 4 
(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. 4 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 primary issue in this matter is whether the intended United States operation, within one year of the approval 
of the petition, will support an executive or managerial position. 
The petitioner describes the proposed United States operation, its proposed personnel structure, and the 
beneficiary's proposed duties in a letter dated October 2, 2006. The petitioner asserts that it will market and 
sell the petitioning organization's products, whch primarily consist of imported garments, in the United 
States. The beneficiary will allegedly be tasked with establishing the "operations of the newly incorporated 
subsidiary" on behalf of the petitioning organization. The petitioner projects that it will need to hire six 
employees "in two or three years," that it will have $200,000.00 in sales in its first year in operation, and that 
it "is anticipating an investment of $100,000.00 to support its development expenses." The petitioner also 
claims that it will receive an initial investment of $35,000.00 and "monthly investments" totaling 
$120,000.00. Finally, the petitioner projects that it will have $276,000.00 in operating expenses during its 
first year in operation, which includes $8,500.00 budgeted for monthly salary obligations in months four 
through twelve. As the beneficiary will be paid $5,000.00 per month, or $60,000.00 per year, the petitioner is 
apparently projecting that it will be paying the other employees $3,500.00 per month in the aggregate at the 
end of its first year in operation. 
The petitioner describes the beneficiary's proposed duties in the October 2,2006 letter as follows: 
To develop pricing strategies, balancing firm objectives and customer satisfaction. 
To identify, develop, and evaluate marketing strategy, based on knowledge of 
establishment objectives, market characteristics, and cost and markup factors. 
To evaluate the financial aspects of product development, such as budgets, 
expenditures, research and development appropriations, and return-on-investment 
and profit-loss projections. 
EAC 07 010 51733 
Page 5 
Formulate, direct and coordinate marketing activities and policies to promote 
products and services. 
Direct the hiring, training, and performance evaluations of marketing and sales staff 
and oversee their daily activities. 
To use sales forecasting and strategic planning to ensure the sale and profitability of 
products, lines, or services, analyzing business developments and monitoring market 
trends. 
Coordinate and direct the financial planning, budgeting, procurement, or investment 
activities of all or part of an organization. 
Develop internal control policies, guidelines, and procedures for activities such as 
budget administration, cash and credit management, and accounting. 
Prepare or direct preparation of financial statements, business activity reports, 
financial position forecasts, annual budgets, andlor reports required by regulatory 
agencies. 
Analyze the financial details of past, present, and expected operations in order to 
identifL development opportunities and areas where improvement is needed. 
Delegate authority for the receipt, disbursement, banking, protection, and custody of 
funds, securities, and financial instruments. 
Evaluate needs for procurement of funds and investment of surpluses, and make 
appropriate recommendations. 
Lead staff training and development in budgeting and financial management areas. 
Maintain current knowledge of organizational policies and procedures, federal and 
state policies and directives, and current accounting standards. 
Supervise employees performing financial reporting, accounting, billing, collections, 
payroll, and budgeting duties. 
The petitioner also claims that it will hire an office administrator, a sales manager, a sales representative, and 
shipping clerks. While the petitioner's organizational chart indicates that the beneficiary will directly 
supervise the office administrator and the sales manager, the chart portrays the office manager as supervising 
the shipping clerks and the sales manager as supervising the sales representative. 
Finally, the petitioner describes the proposed duties of its projected personnel. The office administrator is 
described generally as being responsible for the scheduling, communications, office inventory and equipment, 
receipts and records, accounts payable, and payroll. The sales manager is described generally as directing 
sales related activities by establishing sales territories, quotas, goals, and pricing. It is also claimed that the 
sales manager will plan advertising, prepare budgets, and interact directly with "dealers and distributors." 
On November 29, 2006, the director requested additional evidence. The director requested, inter alia, 
evidence establishing that, within one year of commencing operations, the beneficiary will be relieved fi-om 
performing non-qualifying tasks, and an explanation outlining how the duties of the proposed subordinate 
employees will truly be managerial or will require the services of professionals. 
EAC 07 010 51733 
Page 6 
In response, the petitioner submitted a letter dated December 18, 2006 in which the petitioner explains that 
the beneficiary will primarily manage the proposed subordinates, that only the "sales manager" will be a 
managerial employee, and that the office manager will primarily be a clerical employee. 
On May 2, 2007, the director denied the petition concluding that the petitioner failed to establish that the 
United States operation will support an executive or managerial position within one year. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval. Counsel attempts to supplement the record on appeal by 
providing additional details regarding the qualifications and duties of the proposed subordinate employees 
and by submitting greatly expanded and detailed proposed organizational charts for the United States 
operation. For example, counsel alleges on appeal that the office manager will be a "supervisory" position, 
even though this position was described as being primarily "secretarial" in the response to the Request for 
Evidence, and that, within six to twelve months, the petitioner will hire at least six additional employees 
instead of the four subordinate workers described in the original petition. 
Upon review, the petitioner's and counsel's assertions are not persuasive. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonirnmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 3 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andlor services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target market/prospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
EAC 07 010 51733 
Page 7 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefor. Most importantly, the business plan must be credible. 
Id. 
For several reasons, the petitioner in this matter has failed to establish that the United States operation will 
succeed and rapidly expand as it moves away from the developmental stage to full operations, where there 
would be an actual need for a manager or executive who will primarily perform qualifying duties. The 
petitioner has failed to specifically describe the beneficiary's proposed duties after the petitioner's first year in 
operation; has failed to establish that the beneficiary will be relieved of the need to perform the non- 
qualifying tasks inherent to the operation of the business by a subordinate staff within the petitioner's first 
year in operation; has failed to establish that an investment has been made in the United States operation; and 
has failed to sufficiently describe the nature, scope, organizational structure, and financial goals of the new 
office. 8 C.F.R. 3 214.2(1)(3)(v)(C). 
As a threshold issue, it is noted that counsel's attempt on appeal to describe the petitioner's proposed 
organizational structure as being significantly more complex than what was described in the original petition 
was inappropriate and will not be considered by the AAO. On appeal, a petitioner cannot materially change a 
beneficiary's title, his or her level of authority within the organizational hierarchy, or the organizational 
complexity of the proposed business. The petitioner must establish that the position offered to the beneficiary 
when the petition was filed merits classification as a managerial or executive position. Matter of Michelin 
Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to Citizenship and Immigration Services (CIS) 
requirements. See Matter of Izumrni, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Furthermore, the director 
specifically requested additional evidence pertaining to the organization and staffing of the United States 
operation in the November 29, 2006 Request for Evidence. The petitioner chose not to provide this evidence 
and now submits on appeal. However, the AAO will not consider this evidence for any purpose. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal 
will be adjudicated based on the record of proceeding before the director. 
First, as correctly noted by the director, the record is not persuasive in establishing that the United States 
operation will support an executive of managerial position within one year. The job descriptions for both the 
beneficiary and his proposed subordinate workers fail to credibly establish that the beneficiary will be 
performing primarily "managerial" or "executive" duties afier the petitioner's first year in operation. When 
examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the proposed job duties. See 8 C.F.R. 8 214.2(1)(3)(ii). The petitioner's description 
of the job duties must clearly describe the duties that will be performed by the beneficiary and indicate 
whether such duties will be either in an executive or managerial capacity. Id. 
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis after the petitioner's first year in 
EAC 07 010 51733 
Page 8 
operation. For example, the petitioner states that the beneficiary will formulate, direct, and coordinate 
marketing activities and policies, develop pricing strategies, monitor market trends, and develop internal 
control policies and guidelines pertaining to financial matters. However, the petitioner fails to specifically 
describe these marketing activities, pricing strategies, or internal control policies, or to explain what, exactly, 
the beneficiary will do in performing these duties. The petitioner also fails to explain what the beneficiary 
will do in "monitoring" market trends. Overall, the petitioner has provided so few details regarding its 
proposed garment business that it cannot be discerned what the beneficiary will do on a day-to-day basis in 
performing any of the ascribed duties pertaining to the "management" of the business. The fact that the 
petitioner has given the beneficiary a managerial title and has prepared a vague job description which includes 
inflated duties does not establish that the beneficiary will actually perform managerial duties after the first 
year in operation. Specifics are clearly an important indication of whether a beneficiary's duties will be 
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 California, 14 I&N Dec. 
190 (Reg. Cornrn. 1972). 
Likewise, the record is not persuasive in establishing that the beneficiary will be, after the first year, relieved 
of the need to "primarily" perform the non-qualifying tasks inherent to his duties and to the operation of the 
business in general. While the petitioner claims that the petitioner will hire four employees during its first 
year in business, the petitioner has failed to establish that it will truly be able to hire these workers and, even 
if it could, that these workers will relieve the beneficiary of the need to primarily perform non-qualifying 
tasks. The petitioner's "business plan" vaguely describes the proposed United States operation as a garment 
business which will market and sell the petitioning organization's clothing products. However, the plan and 
associated financial projections are entirely unsupported by any objective evidence. The record does not 
specifically describe the operation's marketing strategy and fails to identify any business relationships or 
potential customers. It is unclear what, exactly, the petitioner will import and in what quantities, where the 
products will be stored, how the products will be transported, and to whom the petitioner will market the 
products in the United States. Finally, the petitioner projects that it will be spending only $3,500.00 on the 
subordinate workforce's salaries in the twelfth month of doing business. It is not credible that the petitioner 
will be able to employ a subordinate workforce, which will relieve the beneficiary of the need to perform 
primarily non-qualifying tasks, for only $3,500.00 per month. 
Accordingly, the petitioner's claim that its newly formed operation will hire four or more workers who will 
relieve the beneficiary of the need to primarily perform non-qualifying tasks is not credible and is not 
supported by any evidence. Once again, 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 
California, 14 I&N Dec. 190. Simply alleging that the petitioner will hire four employees who will perform 
all the non-qualifying tasks inherent to the business does not establish that the United States operation will 
truly grow and mature into an active business organization which will reasonably require the services of a 
beneficiary who will primarily perform managerial or executive duties. Rather, the petitioner must clearly 
define the scope and nature of a United States operation and establish that it has, and will continue to have, 
the financial ability to support the establishment and growth of the business. However, as the record in this 
EAC 07 010 51733 
Page 9 
matter is devoid of any such evidence, the petitioner has failed to establish that the beneficiary will more 
likely than not perform "primarily" qualifying duties after the petitioner's first year in operation. 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; see also Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Furthermore, even assuming that the petitioner will have the ability to hire the workforce proposed in the 
petition, the record is not persuasive in establishing that the beneficiary will supervise and control the work of 
other supervisory, managerial, or professional employees. As asserted in the record, the beneficiary will 
directly supervise an office administrator and a sales manager. The petitioner claims that the office 
administrator will supervise one or more shipping clerks and the sales manager will supervise one or more 
sales representatives. However, the petitioner has failed to establish that either the office administrator or the 
sales manager will truly be a supervisory or managerial employee. To the contrary, the job descriptions 
describe these two proposed employees as performing the tasks necessary to the provision of a service or the 
production of a product, e.g., secretarial and sales related tasks. 
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. Given the size and nature of 
the vaguely described garment business, it is more likely than not that the beneficiary and his proposed 
subordinate employees will all primarily perform the tasks necessary to the operation of the business. See 
generally Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 1313 (9th Cir. 2006). 
Therefore, it appears that the beneficiary will be, at most, a first-line supervisor of non-professional 
employees. A managerial or executive employee must have authority over day-to-day operations beyond the 
level normally vested in a first-line supervisor. See lOl(a)(44) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has failed to establish that the beneficiary will be primarily employed in a 
managerial or executive capacity within one year, and the petition may not be approved for that reason. 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because it failed to establish that a sufficient investment was made in the 
enterprise. 8 C.F.R. 9 214.2(1)(3)(v)(C)(2). In this matter, the petitioner claims that it "is anticipating an 
investment of $100,000.00 to support its development expenses." The petitioner also indicates that it expects 
to receive an initial investment of $35,000.00 and "monthly investments" totaling $120,000.00. However, the 
record is devoid of evidence that the petitioner has ever received any of these investments. Once again, going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Treasure Crap of California, 14 I&N Dec. 190. Absent evidence that 
the foreign entity has made an investment in the United States operation, it cannot be concluded that the 
enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, 
where there would be an actual need for a manager or executive who will primarily perform qualifying duties. 
EAC 07 010 51733 
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Furthermore, the petitioner's "anticipation" that it will receive one or more investments in the future is not 
sufficient to establish eligibility for this visa classification under the regulations. 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; Matter of Katigbak, 14 I&N 
Dec. 45,49 (Comm. 1971). 
Accordingly, as the petitioner has failed to establish that it has received a sufficient investment from the 
foreign entity, the petition may not be approved for this additional reason. 
Third, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner has failed to sufficiently describe the nature, scope, 
and financial goals of the new office. 8 C.F.R. 8 214.2(1)(3)(v)(C)(I). As explained above, the petitioner 
vaguely describes the United States operation as a garment business which will market and sell the petitioning 
organization's clothing products. However, the plan and associated financial projections are entirely 
unsupported by independent, objective evidence. The record does not specifically describe the operation's 
marketing strategy and fails to identify any business relationships or potential customers. It is unclear what, 
exactly, the petitioner will import and in what quantities, where the products will be stored, how the products 
will be transported, and to whom the petitioner will market the products in the United States. The record does 
not contain any independent analysis, contracts, or list of business contacts. Absent a detailed, credible 
description of the petitioner's proposed United States business operation specifically addressing the 
petitioner's proposed products, marketing plan, and customers, it is impossible to conclude that the proposed 
enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, 
where there would be an actual need for a manager or executive who will primarily perform qualifying duties. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. 3 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
Beyond the decision of the director, the petitioner has failed to establish that it has secured sufficient physical 
premises to house the new office. 8 C.F.R. 9 214.2(1)(3)(v)(A). 
In support of its petition, the petitioner submitted a copy of a documented titled "New Jersey Agreement to 
Sublease/SubletW which allegedly governs the petitioner's lease of space at 669 Division Street, Elizabeth, 
New Jersey. This agreement fails to establish that the petitioner has secured sufficient physical premises to 
house its new office for two reasons. First, the agreement specifically incorporates the terms and conditions 
of the "original lease agreement between the sublessor and his lessor." However, the petitioner did not submit 
a copy of this original lease. In the absence of the original lease, it cannot be concluded that the leased space 
will be sufficient to house the new office. Once again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Crafi of California, 14 I&N Dec. 190. Second, the agreement fails to disclose what, exactly, the 
petitioner is claiming to lease from the sublessor. The agreement does not state the square footage, location, 
or nature of the leased space. Absent such detailed information, it cannot be concluded that the leased space 
will be sufficient to house the new office. 
EAC 07 010 51733 
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Accordingly, as the petitioner has failed to establish that it has secured sufficient physical premises to house 
the new office, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been 
"employed" in a primarily managerial or executive capacity with the foreign entity for one year within the 
preceding three years. 8 C.F.R. § 5 2 14.2(1)(3)(iii) and 2 14.2(1)(3)(v)(B). 
First, the record indicates that the beneficiary has not been a full-time employee of the foreign entity in India 
for one year in the past three years. In support of its petition, the petitioner submitted copies of the 
beneficiary's Indian tax returns beginning in 2001. All of the tax returns indicate that the beneficiary did not 
receive a salary from the foreign employer at any time during the past three years. Instead, the returns 
indicate that the beneficiary received distributions from the foreign employer as a partner in the business. 
Accordingly, it does not appear that the beneficiary was actively employed by the foreign entity. In fact, it 
does not appear that the beneficiary has even been residing in India during the past three years. The 
beneficiary arrived in the United States as a visitor for pleasure on July 13, 2006. In traveling to the United 
States, the beneficiary used a nonimmigrant visa issued by the United States Embassy in Botswana on 
November 14,2005, and an Indian passport issued by the Indian High Commission in Botswana on December 
6, 2002. Accordingly, it has not been established that the beneficiary was employed in India by the foreign 
employer for one continuous year in the three years preceding the filing of the petition, and the petition may 
not be approved for this additional reason. 
Second, the petitioner provided a vague and non-specific description of the beneficiary's claimed duties 
abroad which fails to establish what, exactly, the beneficiary did on a day-to-day basis. 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. Suva, 724 F. Supp. 1103, afd, 905 F.2d 41. Furthermore, the petitioner failed to describe the duties of 
the beneficiary's purported subordinates abroad. 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. at 604. 
Accordingly, the petitioner has not established that the beneficiary has been employed 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. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 3 214.2(1)(3)(vii). 
In this matter, the petitioner claims to be 100% owned and controlled by the foreign employer which is partly 
owned by the beneficiary. As a purported owner of the petitioning organization, the petitioner is obligated to 
establish that the beneficiary's services will be used for a temporary period and that he will be transferred to 
an assignment abroad upon completion of the assignment. Id. However, the record is devoid of any evidence 
EAC 07 010 51733 
Page 12 
establishing that the beneficiary's services will be used temporarily. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec, 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are 
qualifying organizations. 
The regulation at 8 C.F.R. 4 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. 4 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing 
business." "Subsidiary" is defined in pertinent part as a limited liability company "of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity." 8 C.F.R. $214.2(1)(l)(ii)(K). 
In this matter, the petitioner claims to be 100% owned by the foreign employer, King Exports. However, in 
su~wort of its vetition. the uetitioner submitted its New Jersev Certificate of Formation. This Certificate lists the 
, L 
members, or owners, as King Exports and 
 an unrelated third party. While the petition 
includes a resolution purporting to authorize the sale of 100 of the petitioner's "shares" to the foreign employer, 
the record does not address Mr. 
 membership, or ownership, interest in the company. The petitioner 
offers no explanation for this inconsistency which undermines its claim to be owned and controlled by the foreign 
employer. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582,591-92 (BIA 1988). 
Accordingly, the petitioner has failed to establish that it and the foreign employer are qualifying 
organizations, and the petition may not be approved for this additional reason. 
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 
EAC 07 010 51733 
Page 13 
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. 4 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.