dismissed L-1A Case: Apparel Retail

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PhlsLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 08 153 53858 Office: VERMONT SERVICE CENTER Date: OCT 0 5 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
()Perry Rhew 
Chief, Administrative Appeals Office 
' EAC 08 153 53858 
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 nonimmigrant petition seeking to employ the beneficiary 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. 4 1101(a)(15)(L). The petitioner is an Alabama limited liability company established in 2008. It 
. . - 
claims ti be an affiliate of, located in ~umbai, India. The petitioner seeks to 
employ the beneficiary as the chief executive officer of its new office in the United States for a period of one 
year. 
The director denied the petition concluding that the petitioner failed to establish that the intended U.S. 
operation, within one year, will support an executive or managerial position. In denying the petition, the 
director determined that the petitioner altered its business plans subsequent to the filing of the petition and 
had failed to establish eligibility as of the date of filing. 
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 petitioner's 
statements at the time of filing accurately reflected the petitioner's intentions and goals, and that the U.S. 
company is not barred from pursuing other business opportunities. Counsel submits a brief and additional 
evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 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. 
EAC 08 153 53858 
Page 3 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(~) further provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive of managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the foreign 
entity to remunerate the beneficiary and to commence doing business in the 
United States; and 
(3) The organizational structure of the foreign entity. 
The sole issue addressed by the director is whether the petitioner established that the intended U.S. operation 
will support an executive or managerial position within one year. 
The nonimmigrant petition was filed on April 30, 2008. In a letter dated April 24, 2008, the petitioner stated 
that the "mission of [the petitioner] is to engage in the business of importing women's apparel and accessories 
from the parent company in India as well as to retail its products." The petitioner indicated that the company 
would establish a retail location in the Hoover, Alabama area. The petitioner stated that the beneficiary would 
be responsible for the following duties as the petitioner's chief executive officer: 
3 0% 
Profit & Loss responsibility for US market 
Execution of proprietary business plan and revenue delivery 
Implement the proprietary strategic goals and objectives of the organization 
EAC 08 153 53858 
Page 4 
Give direction and leadership toward the achievement of [the petitioner's] philosophy, 
mission, strategy, and its annual goals and objectives 
3 0% 
Interface between staff, Product and Service Delivery - Oversee design, marketing, 
promotion, delivery and quality of products and services 
Financial, Tax, Risk and Facilities Management - Develop and implement yearly 
revenue and gross and net profit targets and prudently manage the company's 
resources. Strategize to ensure systems are in place to provide high quality customer 
service to customers, and ensure completion and monitor results of all required 
customer satisfaction surveys, Manage High Level activities and communications 
between the Managers. Public Relations - assure the company and its mission, 
programs, products, and services, are consistently presented in strong, positive image 
to relevant parties 
10% 
Human Resources Management - Effectively manage the human resources of the 
company according to authorized personnel policies and procedures that fully conform 
to current laws and regulations. Direct management of Team Leaders both Commercial 
and Technical. Mentor members of the company and assist in the development of 
technical and business talents 
Hold ultimate authority to hire and fire subordinates in all areas. 
3 0% 
Establish and execute a joint sales and reference proprietary account plan designed to 
achieve revenue objectives 
Develop and coordinate with Marketing Director execution of a set of joint marketing 
programs design to support achievement of established revenue objectives 
Design and coordinate execution of all required sales 
Oversee the production of custom presentations and products as they apply to the 
customer/prospect problems and needs 
Be an acknowledge expert on competitive products 
Help define, develop and manage reference sites through high quality technical 
performance and client relationships. 
The petitioner stated that the beneficiary would initially be responsible for directly supervising an 
administrative support staff. 
The petitioner submitted copies of bank statements showing that the company had approximately $28,500 in 
its U.S. accounts as of April 2008, and submitted a copy of a commercial lease for a premises to be used as a 
"business office." 
EAC 08 153 53858 
Page 5 
The petitioner also submitted a proposed organizational chart for the U.S. company. The chart indicates that 
the beneficiary would directly supervise an import manager and a retail manager. The chart shows that the 
import manager would supervise an administrative assistant, while the retail manager would supervise an 
assistant manager, three salespeople and a tailor. 
The director issued a request for additional evidence (WE) on June 27, 2008, in which he requested that the 
petitioner provide additional evidence to establish how the new company will grow to be of sufficient size to 
support a managerial or executive position within one year. Specifically, the director instructed the petitioner 
to provide: (1) a detailed description of the type of business to be conducted, including the type and location 
of prospective customers, the services to be rendered and the products to be sold; (2) a copy of the petitioner's 
business plan for commencing operations in the United States, including a timetable for each proposed action, 
for the next two years; (3) evidence to establish the size of the U.S. investment; and (4) a description of the 
proposed staff of the new office, including the number of employees to be hired, their job titles, and the duties 
to be performed. 
Former counsel for the petitioner submitted a letter dated September 18, 2008. In response to the director's 
request that the petitioner describe in detail the type of business to be conducted, counsel stated that the 
petitioner entered into three agreements to operate convenience stores and gas stations located in the 
Birmingham, Alabama area. Counsel stated that the agreements are effective on July 1, 2008, September 15, 
2008 and October 1, 2008, respectively, and that the petitioner had invested a total of $133,282 in these 
business ventures. 
Counsel further stated: 
[The petitioner's] goal is to import ready to wear Indian garments and accessories from its 
parent company in India and to set up retail locations in the United States. The retail stores in 
the United States would take in custom orders for weddings and other celebrations and the 
parent company in India would fill those custom orders. [The petitioner] is searching for 
locations in the United States . . . . 
Counsel stated that the petitioner had nine employees as of September 18, 2008. Specifically, the petitioner 
stated that two of the gas stations/convenience stores each employ one manager and one cashier, while the 
third store employs one manager and three cashiers. Counsel indicated that the petitioner would hire a general 
manager "in the near future" and would hire an import manager, import assistant, retail manager, salespersons 
and tailor for each location once the import and clothing retail operations are underway. 
Counsel stated that the managers perform the following duties: 
Managing staff, preparing work schedules and assigning specific duties, 10 hours per 
week. 
Directing and coordinating activities of business concerned with production, pricing, 
and sales. 20 hours per week. 
Inventory Management. 5 hours per week. 
EAC 08 153 53858 
Page 6 
Handling customer services issues. 2 hours per week. 
Store Manager is responsible for notifying [the beneficiary] of any inventory needs, 
suggestions, and improvements. 3 hours per week. 
As evidence of wages paid to employees, the petitioner submitted a copy of a "check register" indicating 
checks issued to the two employees of the ' between July 31 and August 31, 2008. The 
petitioner entered the agreement to manage this retail location on July 1, 2008. The petitioner also submitted 
copies of IRS Forms W-4, Employees' Withholding Allowance Certificate, completed by the two employees. 
The Forms W-4 do not identify the name of the employer. 
The petitioner submitted a one-page "business plan" which indicates that the petitioner anticipates that it will 
open its first ethnic clothing retail store in April 2009 and its second store in July 2009. The business plan 
does not address the petitioner's financial goals or hiring plan. The AAO notes that the petitioner submitted 
copies of only two of the three management agreements referenced in counsel's letter. The petitioner did not 
submit a copy of its agreement to manage the business known as " located at-1 
in Hoover, Alabama, which counsel claims was signed on September 15, 2008. The AAO further 
notes that the petitioner's lease agreement, submitted at the time of filing, indicated that the petitioner's 
"business office" was at this location. The petitioner submitted a revised lease in response to the RFE 
indicating that the petitioner's portion of the premises is 175 square feet in area. 
The director denied the petition on November 7, 2008, concluding that the petitioner failed to establish that 
the intended U.S. operation will support an executive or managerial position within one year of approval of 
the petition. In denying the petition, the director noted that the petitioner originally stated that it intends to 
engage in the import and retail sale of women's apparel, yet subsequently submitted evidence that it intends to 
operate gas stations and convenience stores. The director noted that "the facts and evidence for your petition 
must be true and accurate at the time of filing." 
The director further found that, even if the petitioner had initially indicated that the new office would be 
engaged in the management of gas stations/convenience stores, the terms of the submitted management 
agreements suggested that the owners of the gas stations would maintain managerial control over the 
businesses. The director determined that, as such, the beneficiary would not have managerial or executive 
authority over the business. 
On appeal, counsel for the petitioner asserts that, at the time of filing, the petition intended to engage in the 
import of Indian designer clothing from its parent company, and anticipated setting up a retail location in the 
Hoover, Alabama area. Counsel further asserts that the petitioner submitted a commercial lease agreement 
and evidence of funding to support the petition. 
Counsel contends that, while the petitioner entered into agreements to manage gas stations/convenience stores 
while the petition was pending, it also clearly stated in response to the RFE that the company's goal remained 
to engage in the import and retail sale of clothing from India. Counsel asserts that the petitioner "is not barred 
from pursuing another business opportunity" while it continues to "research and develop its import business." 
EAC 08 153 53858 
Page 7 
With respect to the petitioner's management agreements with the owners of the gas stations, counsel asserts 
that the terms of the agreements do not control how the beneficiary operates the business. Counsel asserts that 
the beneficiary "is responsible for overseeing the company's front and back-end operations and does not 
report to any higher authority" and that he "makes any and all operations decisions, financial decisions goals 
and policies." In support of the appeal, the petitioner submits its "Business and Financial Plan for a Gas 
Station and Convenience Store." 
Counsel asserts that the beneficiary will be employed in a primarily managerial capacity, performing the 
following duties: 
[The beneficiary] manages the proprietary operations, financial, marketing, purchasing, sales 
activities and inventory, all of which are essential functions within the organization. He 
oversees sales of the company's product, including customer service and satisfaction. He 
negotiates the purchasing prices with suppliers and ensures that the products for retail sales 
are purchased on time. [The beneficiary] oversees inventory and purchasing. His three 
Managers direct and coordinate activities of the retail stores with pricing, sales, managing 
staff, inventory and customer service. 
The petitioner further stated that the beneficiary has the authority to hire and fire employees, manage all 
essential functions within the organization, establish the goals and policies of the company, and will exercise 
the ultimate authority in deciding the company's marketing, sales, purchasing and personnel operations 
activities. 
Upon review, and for the reasons discussed herein, the petitioner has not established through the submission 
of relevant, probative evidence that the new office would support a managerial or executive position within 
one year of approval of the petition. 
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
U.S. Citizenship and Immigration Services (USCIS) regulation, that allows for a more lenient treatment of 
managers or executives that are entering the United States to open a new office. When a new business is first 
established and commences operations, the regulations recognize that a designated manager or executive 
responsible for setting up operations will be engaged in a variety of low level activities not normally 
performed by employees at the executive or managerial level and that often the full range of managerial 
responsibility cannot be performed in that first year. In an accommodation that is more lenient than the strict 
language of the statute, the "new office" regulations allow a newly established petitioner one year to develop 
to a point that it can support the employment of an alien in a primarily managerial or executive position. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is prepared to commence doing business immediately upon approval so that it will support 
a manager or executive within the one-year timeframe. 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. See generally, 8 C.F.R. ij 214.2(1)(3)(~). The petitioner must describe the nature of 
EAC 08 153 53858 
Page 8 
its business, its proposed organizational structure and financial goals, and submit evidence to show that it has 
the financial ability to remunerate the beneficiary and commence doing business in the United States. Id. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, 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 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefore. Most importantly, the business plan must be credible. 
Id. 
As noted by the director, the petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Here, the petitioner unambiguously stated at the time of filing that the new U.S. company intended to engage 
in the import and retail sale of women's clothing and outlined a proposed staffing arrangement that was 
consistent with the planned business activities. The petitioner did not, however, submit any supporting 
evidence to substantiate its claims that the company would realistically be able to support the proposed 
staffing levels within one year, or evidence that the premises secured were sufficient for the operation of an 
importhetail business. 
In response to the director's request for additional evidence regarding the petitioner's proposed import and 
retail business, the petitioner submitted evidence that related almost exclusively to the petitioner's 
management of gas stations, accompanied by a one-page "business plan" indicating that the petitioner 
anticipated opening its first ethnic clothing store in April 2009, nearly one year after the petition was filed. 
The AAO acknowledges the petitioner's assertion that the company has opted to pursue other business 
opportunities while developing its import and retail business. However, the petitioner must still establish that 
EAC 08 153 53858 
Page 9 
it had a viable plan for a new office, in compliance with the regulatory requirements at 8 C.F.R. 9 
2 14.2(1)(3)(~), as of the date the petition was filed. 
While it is correct to say that the petitioner has consistently maintained its claim that the U.S. company will 
engage in the import and retail sale of Indian apparel, the record remains devoid of any evidence that the 
petitioner ever had any concrete plan in place to commence doing business as a clothing importer and retailer. 
As noted above, the petitioner submitted no business plan with the initial petition. In response to the RFE, the 
petitioner submitted a one-page "business plan" in response to the WE which indicated that the company did 
not even intend to conduct a market study for the "Ethnic Clothes Line of Business" until November 2008, 
seven months after the petition was filed. A market study would typically be conducted in connection with 
preparing a business plan for a new office, and as such is an activity that would reasonably be completed prior 
to filing a new office petition. The petitioner also did not submit any evidence of the company's financial 
objectives, did not identify the company's anticipated start-up expenses for the import and retail operations, 
and did not provide adequate evidence of the size of the investment in the U.S. entity as of the date of filing. 
See generally, 8 C.F.R. 9 214.2(1)(3)(v)(C). 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 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Furthermore, the AAO notes that the lengthy job description for the beneficiary submitted at the time of 
filing, did not appear to be consistent with the petitioner's claim that the U.S. company will operate a retail 
apparel business. As the foreign entity is engaged in the same line of business, it would be reasonable for the 
beneficiary to perform duties that are similar to his role with the foreign entity; however, the position 
description for the beneficiary's U.S. position bears no resemblance to the description submitted for his 
overseas position. For example, the petitioner indicates that the beneficiary will be managing technical and 
commercial team leaders and a marketing director. The petitioner has not otherwise stated that it intends to 
hire staff for these positions or described what duties they would perform within the context of a clothing 
store or convenience store. 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. at 591-92. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 3 103.2(b)(8). When responding to a request for evidence, a 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, or its associated job responsibilities. 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). 
Here, the evidence submitted with regard to the petitioner's originally intended business did not support a 
finding that the petitioner would support the beneficiary in a managerial or executive position within one year. 
For this reason, the appeal will be dismissed. 
EAC 08 153 53858 
Page 10 
Furthermore, the petitioner did not submit evidence that it had secured adequate physical premises to house 
the new office as of the date of filing, as required by 8 C.F.R. 5 2 14.2(1)(3)(v)(A). At the time of filing, the 
petitioner submitted a commercial lease for the premises located at - in Hoover, 
Alabama. The lease indicated that the petitioner would use this space as a "business office." The petitioner 
later submitted a revised lease indicating that the petitioner is leasing a portion of this space consisting of an 
area of approximately 175 square feet. 
In response to the RFE. the petitioner also submitted photographs of one of the gas stationlconvenience store 
- 
businlsses that it claims to manage. The address of thk ' gas station is -~ 
Hoover, Alabama. The AAO finds it reasonable to question how the petitioner intended to operate an import 
and retail business from a small portion of a convenience store, or whether there is even a "business office" 
available for the petitioner to use in such a store. Furthermore, the fact that the petitioner has leased only a 
175 square foot area in the store undermines the petitioner's claim that it is actually managing the - 
The petitioner has not submitted a copy of the management agreement for this store. Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Regardless, the petitioner has repeatedly stated that it is continuing to search for a suitable retail location for 
its clothing store. Therefore, the petitioner has not established that it had secured sufficient premises to house 
the new office as of the date the petition was filed. For this additional reason, the petition cannot be 
approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); 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). 
Although the appeal will be dismissed, the AAO will nevertheless briefly address the petitioner's claim that 
the U.S. company's gas station and convenience store operations would support a managerial or executive 
position within one year, as the director discussed this issue in the notice of denial. 
The petitioner claims that it has signed management contracts with three gas stations/convenience stores, but 
has submitted copies of only two of these contracts. There is no evidence in the record to establish that the 
petitioner has an agreement to manage the 
 gas station. Again, 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. at 165. The AAO does not fully concur with the director's finding 
that the terms of the management agreement are unduly restrictive or that they would substantially interfere 
with the beneficiary's authority to manage the U.S. company. 
However, upon review of the record, the petitioner has not submitted evidence to establish that the beneficiary 
would supervise a subordinate staff sufficient to relieve him from performing primarily non-managerial 
duties. First, the petitioner has not substantiated its claim that the U.S. company had nine employees as of 
EAC 08 153 53858 
Page 11 
September 18, 2008 when it replied to the WE. The petitioner claimed that the company employed three 
managers and five cashiers as of that date. 
The petitioner did submit a "check register" purported1 showin checks issued to workers and copies of IRS 
Forms W-4 for the two claimed employees of the YR' The petitioner has also submitted 
evidence that it has obtained the required licenses in its own name for the operation of this business. 
However, the petitioner has not indicated that it intends to hire any additional employees to staff this location, 
nor has it explained how one manager and one cashier would be sufficient to staff a business that is likely 
open at least 12 hours daily. 
Similarly, the petitioner claims that it employs one manager and three cashiers at the '" but has 
not provided any documentary evidence to corroborate this claim. The petitioner has not identified these 
employees by name or submitted evidence of their employment. Pursuant to its agreement with the owner of 
this store, the petitioner is required to keep the store open for business 24 hours per day or 168 hours per 
week. Again, the petitioner has not indicated that the petitioner will hire additional workers, and the staff of 
four people, even if working full-time, would not be sufficient to even staff the store during its operating 
hours. 
Finally, as noted above, the petitioner has not submitted evidence of its management agreement with the 
owner of the "Hoover Shell" store, and thus its claim that it employs the store's two workers is unpersuasive. 
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 5 101(a)(44)(C) of the Act, 
8 U.S.C. 5 1101(a)(44)(C). In reviewing the relevance of the number of employees a petitioner has, federal 
courts have generally agreed that USCIS "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 (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)). However, 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). The size of a 
company may be especially relevant when USCIS notes discrepancies in the record and fails to believe that 
the facts asserted are true. Id. 
Absent persuasive evidence that the petitioner has the intention and the financial ability to increase the 
staffing levels of the two stores it claims to manage, the evidence of record does not establish that the 
beneficiary would be relieved from involvement in the day-to-day non-managerial operations of operating 
convenience stores within one year. 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 
EAC 08 153 53 858 
Page 12 
enumerated managerial or executive duties); see also Matter of Church Scientology Intn 'l., 19 I&N Dec. 593, 
604 (Comm. 1988). 
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 he or she shows that the AAO abused its discretion with respect to all of the 
AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.