dismissed L-1A Case: Automobile Export

illentieing data deleted to 
prevent clearly unwmm@d 
,. invasion of persod privwj 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflee ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
File: EAC 08 136 52730 Office: VERMONT SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101(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. 9 103.5 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). 
\pert-- Rhew 
Chief, Administrative Appeals Office 
EAC 08 136 52730 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-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 Florida limited liability company, intends to purchase and export 
luxury automobiles to Russia. It claims to be an affiliate of located in Russia. The 
petitioner seeks to employ the beneficiary as president of its new office in the United States for a period of 
one year. 
The director denied the petition based on three independent and alternative grounds, concluding that the 
petitioner did not establish: (1) that it had secured sufficient physical premises to house the new office; (2) 
that the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity 
for at least one year within the three years preceding the filing of the petition; and (3) that the beneficiary 
would exercise managerial or executive authority over the U.S. entity and that the U.S. entity would support a 
managerial or executive 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 for the petitioner asserts that the director 
unreasonably disregarded evidence submitted in response to the request for evidence and also "demanded 
unreasonable proof' that cannot be produced by a petitioner that is opening a new office. Counsel submits a 
lengthy brief in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 1 Ol(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. 5 214.2(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 08 136 52730 
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 himher 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. tj 214.2(1)(3)(v) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall 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 involves executive or managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in 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 first issue to be addressed is whether the petitioner established that it has secured sufficient physical 
premises to house the new office in the United States. See 8 C.F.R. 3 214.2(1)(3)(v)(A). 
The petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, that the address at which the 
beneficiary will work is - in Riverview, Florida. The petitioner submitted a lease 
agreement made between the petitioner and, which agreed to lease to the petitioning 
company one office within the building located at the above address for a one year period 
March 10,2008. The petitioner submitted two photographs of the exterior of the building located at 
- 
On May 19, 2008, the director issued a request for additional evidence in which he requested, inter alia, the 
following additional documentation with respect to the petitioner's leased premises: (1) a layout of the leased 
office space which clearly depicts the square footage of the petitioner's leased office space, the total square 
footage of the building, the total square footage of - leased property within the 
EAC 08 136 52730 
Page 4 
building, and the total square footage of any common areas used by both the petitioner and - 
(2) an original letter fromlessor, on original letterhead, that acknowledges 
the petitioner's subleasing of office space within the space occupied by, (3) 
documentary evidence to demonstrate that the leased space is of sufficient size to conduct an import/export 
international trade business, including additional lease agreements for warehouse space; and (4) photographs 
of the interior and exterior of all of the premises secured for the United States entity which clearly depict the 
organization and operation of the entity. 
the petitioner submitted an amended lease agreement between the petitioner and 
., dated June 24, 2008, which contains the following paragraph: 
- agrees to lease to [the petitioning company] one office (144 sf of total 
5000 sf in which occupies 400 sf and common areas of 468 sf is 
) within the building at- 
The petitioner also submitted six photographs of a computer workstation located in an office, with basic 
office furniture and equipment. Counsel for the petitioner explained that the U.S. company is primarily doing 
business through the Internet and through direct purchase of automobiles for export only, and has no need for 
a warehouse or larger office space at present. The petitioner also submitted its business plan for the new 
office, which indicates that, for the first year, the beneficiary would be the company's only employee. 
The director denied the petition on January 28, 2009, concluding that the petitioner had failed to establish that 
it secured sufficient physical premises to house the new office. In denying the petition, the director 
acknowledged the evidence submitted noting that "no address markings or business identification markings 
were evident within the photos" and thus it was not clear that the photographs depicted the office space 
belonging to the petitioning company. The director further observed that the petitioner did not establish that 
the leased premises were of a sufficient size to conduct an international trade business. 
On appeal, counsel asserts that "the petitioner enclosed a photo of the office and the office equipment in his 
rented space exactly per the instructions of the RFE." Counsel contends that the director did not indicate in 
the RFE that the photos must have "some clear identifying office number or name on the door or on the desk." 
Counsel notes that "in the normal course of business the petitioner did not make such name branding in his 
interior office." Counsel further contends that the response to the RFE clearly explained why a small office is 
sufficient to house the new office, and why no warehouse, storage or shipping facility is necessary for the 
operation of the business. 
Upon review, the AAO concurs with the director's conclusion that the petitioner failed to establish that it has 
secured sufficient physical premises to house the new office. 
The AAO notes, however, that the petitioner has established that a small office would be sufficient to house 
the petitioner's business during its first year of operations, in light of the petitioner's business plan, which 
indicates that the beneficiary would be the sole employee. The petitioner has also adequately explained why it 
does not require a warehouse at this time. 
EAC 08 136 52730 
Page 5 
The AAO also acknowledges counsel's argument that it is unreasonable to expect the petitioner to have a 
company sign or other identifying marks within its small office, in which the beneficiary is the only occupant. 
However, the director did not merely request photographs and an amended lease agreement in the request for 
evidence. The director specifically requested that the petitioner submit an original letter from - 
landlord that acknowledges the petitioner's sublease of an office within leased 
space, as well as a layout showing the square footage of the petitioner's leased space, of - 
leased space, and of the square footage of the entire building. The petitioner failed to provide any of this 
evidence in response to the RFE, and did not explain why such evidence would be unavailable. This evidence, 
combined with the photographs submitted, would have established that the petitioner is actually occupying 
the premises as stated in the lease agreement with Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). 
With respect to the interior photographs submitted, the AAO concurs with the director's conclusion that such 
photographs submitted could have been taken anywhere. The petitioner did not, for example, submit 
photographs depicting the operation of with which it claims to share a 400 square foot 
office, or photographs depicting how the space is shared between the two companies. Other probative 
photographic evidence might include a photograph of a building directory listing the petitioner and m 
as occupants. The exterior photographs of the building depict the address of the building, but fail to 
identify any company signs or names of any type. The front door to the building lists operating hours and a 
single telephone number, which suggests that it may have a single occupant. 
As the petitioner has opted not to supplement the record on appeal, the AAO concurs with the director's 
conclusion that the petitioner failed to establish that the petitioner has secured sufficient physical premises to 
house the new office. Accordingly, the appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner established that 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 by the foreign entity. See 8 C.F.R. fj 214.2(1)(3)(v)(B). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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 08 136 52730 
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 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(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 stated on the Form 1-129, Petition for a Nonimmigrant Worker, that the beneficiary has been 
employed as General Director (President) of the foreign entity since October 2003. The petitioner stated that 
the beneficiary "[dlirects, plans and implements policies, and objectives for the organization," and "[pllans 
procedures, assigns responsibilities, and coordinates company's activities. 
In a letter dated March 26, 2008, the petitioner indicated that the foreign entity employs eight workers and is 
engaged in the sales and marketing of construction materials. The petitioner emphasized the beneficiary's role 
as majority shareholder and general director, but did not further elaborate upon his duties, other than noting 
that the beneficiary "concentrates his efforts on [the foreign entity's] activities in Russia as well as on its 
international development, and leads our company towards reaching its financial goals.'' 
The petitioner submitted an organizational chart for the foreign entity, which depicts the beneficiary as 
general director. The other company employees include a deputy general director, a chief accountant, an 
economistJfinancia1 officer, a maintenance technician, a clerk, an energy technician, and a technician. The 
petitioner also provided copies of the foreign entity's monthly payroll records for the first nine months of 
2007. 
In the request for evidence dated May 19, 2008, the director requested a detailed explanation and 
documentary evidence describing the foreign entity's business activities, products andlor services, and 
additional evidence to establish that the beneficiary was employed by the foreign entity for one continuous 
year within the three years preceding the filing of the petition on April 1 1,2008. 
The director also instructed the petitioner to submit a complete position description for the beneficiary and for 
each employee who was managed by the beneficiary, including a breakdown of the number of hours devoted 
EAC 08 136 52730 
Page 7 
to specific duties on a weekly basis. Finally, the director instructed the petitioner to submit an organizational 
chart for the foreign entity. 
In a response received on August 15, 2008, counsel for the petitioner stated that the petitioner was submitting 
job duties which "reflect what is standard language of the DOT and O*NET because that is what are his job 
duties." Counsel stated that "any other description would go over the boundaries of what is acceptable job 
duties and may then not be acceptable as meeting the immigration laws and regulations." Counsel added that 
it is "unreasonable for the Service to ask for a detailed job duties [sic] but not allow an acceptable and 
standard explanation in the English language to reflect what is written in the dictionary of occupational titles 
as an acceptable listing of job duties for the title and position." The petitioner submitted U.S. Department of 
Labor O*Net Online job descriptions for the occupations of chief executive, general and operations managers, 
financial managers, treasurers and controllers, accountants, and electricians. 
The petitioner also provided a revised organizational chart for the foreign entity which identifies the 
beneficiary as chaiman of the board of directors, supervising the board of directors, who in turn supervise the 
general director, the job title previously assigned to the beneficiary. The chart shows that the general director 
supervises a deputy, a financial director (the beneficiary), and a chief accountant. The deputy of the general 
director, whose name did not appear on the previous organizational chart, supervises an electrician and two 
technicians, and the chief accountant supervises an accountant (previously identified as a clerk) and an 
economist. The petitioner attached very brief descriptions for each position, noting that the chaiman of the 
board of directors is responsible: "to organize the work of the Board of Directors," "to undertake duties to 
further effective work of the company and to increase profit," and "to develop long-term plans of company's 
activities, placing shares." The petitioner further indicates that the financial director's role is to "define 
financial policy," "to develop and carry out a maintenance of financial stability," and "to undertake duties on 
maintenance of solvency." 
In a separate statement, the petitioner sought to explain the type of business operated by the foreign entity, 
noting that the foreign entity "does extensive advertising in Krasnoyarsk and Krasnoyarsk region, and also 
opens the website 'Purchases of automobiles from USA with the name of [the petitioning company]." The 
petitioner explained how the foreign entity and U.S. entity work together to match U.S. luxury cars with 
Russian buyers. According to the petitioner, only three of the foreign entity's employees, the director, a 
secretary and the chief accountant are involved in this process. The petitioner did not explain in what other 
business activities the foreign entity is involved, nor did it further describe the duties the beneficiary 
performed during his tenure with the foreign entity. Rather, the petitioner noted that the beneficiary is 
responsible for "all business activities" for the United States company. 
Finally, the petitioner submitted a statement from the beneficiary titled "Description ofjob duties as executive 
officer of [the foreign entity] in Russia." He states that he created the foreign entity for the management of 
real estate in 2003. The foreign entity began renting warehouse space to various firms in 2004 and 2005 after 
purchasing the warehouses and making necessary repairs and improvements. Specifically, the beneficiary 
stated: 
EAC 08 136 52730 
Page 8 
In 2004, I had repaired the parts of heat and water supplies. Then I concluded the contract on 
tenancy of an excise warehouse. . . . In the same year, 2004, I have taken in my warehouses a 
large firm of a ceramic tile sale. They are still renting building from me. 
In 2005, I had updated electric mains and had put the new transformer [sic]. It is the big work 
in Russia to be connected with coordination. Coordination had taken from 3 to 4 months of 
time. In same year, I had altered input of water on the base. In parallel, I was engaged in 
tenancy of the remained [sic] premises, advertising, and personal meetings with the 
companies. I was created [sic] better conditions of rent to tenants. 
In the year of 2006, I started business of export/import with China. I started to buy ceramic 
tiles and artificial granite for selling in Krasnoyarsk. 
In 2007,I had transferred this business to shareholder of [the foreign entity] He 
is taking care of this business up to present days. The profit of this business is 10-15% of the 
investment. 
Since 2006, - is a Director of [the foreign entity] instead of me. 
Now, I am a Financial Director in [the foreign entity] and Chairman of Board of Directors as 
well. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary has been 
employed by the foreign entity in a primarily managerial or executive capacity. The director observed that the 
petitioner failed to describe the managerial responsibilities the beneficiary performed abroad, or the duties 
performed by his subordinates. The director also determined that the petitioner had failed to submit sufficient 
evidence that the beneficiary was employed by the foreign entity for one continuous year during the three 
years preceding the filing of the petition. 
On appeal, counsel for the petitioner asserts that the petitioner did in fact submit payroll records for the entire 
staff, including the beneficiary, for the period January 2006 through January 2007, as well as corporate 
records detailing the compensation paid to the beneficiary, and yearly records of payment of income tax 
returns for the beneficiary by the foreign entity, which counsel states are the equivalent of an IRS Form W-2 
in the United States. 
With respect to the beneficiary's role in the foreign entity, counsel states: 
[The beneficiary] was not the person in charge of supervising the employees on a day to day 
basis. The Petitioner was the Chairman of the Board of Directors, and the Chief Financial 
Officer, as well as the Majority Shareholder. He was the Executive and had only executive 
duties and responsibilities, not managerial. Executive duties and managerial duties are very 
different in the Russian system and as was stated by the Petitioner and explained in his 
personal description of his duties as the executive of the Russian company. 
EAC 08 136 52730 
Page 9 
[The beneficiary] has been involved in the company from its inception, and continues to 
make the major decisions for both the Russian and U.S. entities. . . . [The foreign entity] has 
professionals who are in charge of the repairs done to the properties they purchase. Most of 
the repairs are the work of engineers and electrician. There is an accountant and a financial 
director. They are supervised on a daily basis by the Director (in the U.S. his title would be 
the president) who supervises the three other directors. [The beneficiary] as 
the dop [sic] executive makes all the financial and business decisions, and therefore is in 
charge of the entire operation. He is also personally responsible to the Russian Government 
for complying with all the government requirements when it comes to construction and 
maintenance of the properties he owns and leases, although of course he does not do the 
paper work himself, but his secretary or another employee prepares the work and he reviews 
and signs it. He was also devoting time to the development of the importlexport trade, which 
started and grew into the business now in the U.S. 
Upon review, the petitioner has not established that the beneficiary has been employed by the foreign entity in 
a primarily managerial or executive capacity. However, the AAO finds sufficient evidence in the record to 
establish that the beneficiary has been employed by the foreign entity for at least one continuous year in the 
three years preceding the filing of the petition. The director's finding to the contrary will be withdrawn. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the beneficiary's job duties. See 8 C.F.R. 6 214.2(1)(3)(ii). The petitioner's 
description of the job duties must clearly describe the duties performed by the beneficiary and indicate 
whether such duties were in either an executive or managerial capacity. Id. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). Here, while the evidence of record indicates that the beneficiary 
exercised executive-level authority over the foreign entity as its majority shareholder and chairman of the 
board of directors, the petitioner has failed to establish that the beneficiary's day-to-day responsibilities were 
primarily executive in nature. 
As noted by the director, the petitioner has failed to provide a detailed description of the beneficiary's duties 
with the foreign entity sufficient to establish that he was acting in a primarily managerial or executive 
capacity. At the time of filing, the petitioner indicated that the beneficiary, as General Director (President), 
"directs, plans and implements policies and objectives for the organization," and "plans procedures, assigns 
responsibilities, and "coordinates the company's activities." This description is vague, non-specific, and 
essentially paraphrases portions of the statutory definition of executive capacity. Conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd v. Suva, 724 F. 
Supp. 1 103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). 
EAC 08 136 52730 
Page 10 
Thus, the director clearly and explicitly requested a detailed description of the beneficiary's actual duties and 
the amount of time the beneficiary devotes to specific duties, as well as complete position descriptions for all 
of the beneficiary's subordinate employees. While the petitioner submitted a voluminous response to the 
WE, the petitioner's response failed to provide any additional insight into the nature of the beneficiary's day- 
to-day duties, and in fact further obscured the beneficiary's role by assigning him a different job title. The 
petitioner stated at the time of filing that the beneficiary's role in the company is that of general director 
(president). In response to the RFE, the beneficiary stated that he gave up this role to in 2006, 
two years before the petition was filed, and since that time has served as financial director and chairman of 
the board. 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). 
Rather than submitting the requested detailed description of the beneficiary's duties and those of his 
subordinate employees, the petitioner submitted generic job descriptions obtained from the U.S. Department 
of Labor's Occupational Information Network, O*Net. Generic job descriptions compiled by the U.S. 
Department of Labor have no bearing on an assessment of this beneficiary's duties within the context of the 
foreign entity's business, and the petitioner cannot satisfy its burden of proof by paraphrasing or wholly 
repeating such descriptions; the regulations require the petitioner to submit a detailed description of the 
beneficiary's actual duties. See 8 C.F.R. 5 214.2(1)(3)(ii). Counsel's explanation that the O*Net job 
descriptions were being provided because "any other description would go over the boundaries of what is 
acceptable job duties," suggests that the beneficiary has in fact been performing some duties that do not fall 
under the statutory definitions of managerial or executive capacity. Therefore, based on the current record, 
the AAO is unable to determine whether the claimed executive duties constituted the majority of the 
beneficiary's duties, or whether the beneficiary primarily performed non-executive administrative or 
operational duties. Although specifically requested by the director, the petitioner's vague descriptions of the 
beneficiary's job duties do not establish what proportion of the beneficiary's duties is executive or managerial 
in nature, and what proportion is actually non-executive or non-managerial. See Republic of Transkei v. INS, 
923 F.2d 175, 177 (D.C. Cir. 1991). Any failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
While counsel asserts that the beneficiary also described his position with the foreign entity "in his own 
words" the beneficiary's summary of his job duties reads as a brief overview of the foreign company's 
business activities, rather than as a job description. The beneficiary mentions renting warehouse space, 
making building repairs and improvements, advertising the company's properties to'potential tenants, meeting 
with tenants, and starting an import and export business, but offers little insight into what his day-to-day 
responsibilities were or how he accomplished his objectives. This description, like the O*Net job 
descriptions, fell significantly short of responding to the director's request for a complete description of the 
beneficiary's duties and a breakdown of the amount of time he devoted to specific duties. The fact that the 
beneficiary manages a business does not necessarily establish eligibility for classification as an intracompany 
transferee in a managerial or executive capacity within the meaning of sections 101(a)(15)(L) of the Act. See 
52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Pursuant to the strict statutory definitions, section 101(a)(15)(L) of 
the Act does not include any and every type of "manager" or "executive," such as staff officers or specialists, 
self-employed persons who perform the management activities involved in practicing a profession or trade, or 
EAC 08 136 52730 
Page 11 
a first-line supervisor of non-professional employees. See section 10 1 (a)(44)(A)(iv) of the Act; see also 52 
Fed. Reg. 5738, 5740 (February 26, 1987)(available at 1987 WL 127799). 
Counsel attempts to further describe the beneficiary's duties on appeal, noting that the beneficiary "makes all 
the financial and business decisions, and therefore is in charge of the entire operations," "is personally 
responsible to the Russian Government," and "was devoting his time to development of the importlexport 
trade," such statements are insufficient to establish the nature of the beneficiary's day-to-day duties. Reciting 
the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations 
require a detailed description of the beneficiary's daily job duties. The petitioner has failed to provide any 
detail or explanation of the beneficiary's activities in the course of his daily routine. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the company's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. 
Here, the petitioner has not submitted a clear and consistent description of the nature of the business operated 
by the foreign entity, nor has it provided the requested detailed position descriptions for the beneficiary's 
subordinates as requested by the director. At the time of filing, the petitioner stated that the foreign entity 
specializes in the sales and marketing of construction materials. In response to the WE, the petitioner 
indicated that the foreign entity was created for "the management of real estate," and is engaged in property 
renovation and rentals, import of ceramic tile and impodexport of various goods with China, and import of 
luxury automobiles from the United States. While it is possible that the foreign entity is engaged in multiple 
areas of business, it is not clear how its staff, based on the duties as minimally described, have been able to 
relieve the beneficiary from involvement in the day-to-day operations. As noted above, the foreign entity 
claims to employ two to three technicianslelectricians primarily responsible for maintaining "power 
equipment" and "thermal equipment," a deputy general director who provides "performance of fire-prevention 
actions," several accounting and finance employees, including a financial director, chief accountant, 
economist and accountant, and a general director who fulfills "treaty obligations" and approves prices and 
tariffs. None of the employees appear to be engaged in any sales, marketing, import, export, warehousing or 
other operational duties that would be associated with a company engaged in international trade, sales and 
marketing activities, and it remains unclear exactly what the foreign entity does or how it operates with a staff 
comprised primarily of accountants and technicians. 
In light of the deficiencies discussed above with respect to the beneficiary's duties, the duties of his 
subordinate employees, and the nature of the business, the petitioner has not established that the beneficiary 
has been employed abroad in a primarily managerial or executive capacity, notwithstanding his executive job 
title. 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 top managerial employee. A beneficiary's 
"control," management or direction over a company cannot be assumed or considered "inherent" to his 
position merely on the basis of his job title and broadly-cast job responsibilities. 
EAC 08 136 52730 
Page 12 
While the AAO is prepared to conclude that some of the beneficiary's tasks have been qualifying, the 
petitioner has the burden of establishing that a majority of his tasks have been managerial or executive in 
nature. This determination cannot be based on the beneficiary's oversight of subordinates, the beneficiary's 
job title or salary, or a job description that fails to identify any specific daily tasks. Again, the actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Accordingly, the appeal will be dismissed. 
The third and final issue addressed by the director is whether the petitioner established that the beneficiary 
will be employed by the U.S. entity in a primarily managerial or executive capacity within one year of the 
approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). 
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 nonimmigrant 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. fj 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. The petitioner must also establish that 
the beneficiary will have managerial or executive authority over the new operation. See 8 C.F.R. $ 
2 14.2(1)(3)(v)(B). 
In its letter dated March 26, 2008, the petitioner stated that the U.S. company will export luxury automobiles, 
yachts, automobile supplies and equipment from the United States to Russia. The petitioner described the 
beneficiary's proposed role as follows: 
Acting as the head of our company, [the beneficiary's] main function will be directing the 
company's importlexport activity. He will conduct the marketing and development strategy, 
as well as establishing the international business reputation and credit of our company in the 
United States, as well as supervising the export operation. [The beneficiary] will be 
responsible for planning, development and establishing policies of our subsidiary in 
accordance with board directives. He will plan the objectives and co-ordinate functions 
between the U.S. and the Russian companies. He will hire employees, and establish 
responsibilities and procedures for attaining the company's objectives and will plan in 
accordance with current conditions. He will also evaluate performance of all employees for 
compliance with established policies of [the foreign entity] and [the U.S. petitioner], and their 
contributions in attaining objectives. . . . [The beneficiary] will have discretion to hire and fire 
employees for [the petitioner] in the United States. Through his responsibility, [the 
beneficiary] will in effect direct activities of [the company]. 
The petitioner also submitted a separate description for the position of "president - manager," in which it 
indicated that the beneficiary would perform the following duties: 
EAC 08 136 52730 
Page 13 
Directs, plans, and implements policies and objectives of organization or business. 
Hires and fires all personnel for the U.S. entity; 
Directs activities of the organization to plan procedures, establish responsibilities and 
coordinate the transfer of merchandise from the U.S. to Russia, and later on from 
Russia to the United States; 
Analyzes operations to evaluate performance of company and staff to determine areas 
of cost reduction and program improvement. 
Confers with staff to establish policies and formulate business plans. 
Assigns and delegates responsibilities to subordinates; 
Establishes internal control procedures. 
Plan, direct and supervise all activities concerned with the purchase, transportation and 
export of cars and boats to Russia. 
In a letter dated March 26, 2008, counsel for the petitioner stated that the U.S. company has already 
purchased and exported two luxury vehicles to Russia, and that the beneficiary "has already started 
negotiating numerous agreements for purchase and export of additional automobiles and sail boats." With 
respect to the anticipated staffing of the U.S. company, counsel stated: 
[Tlhe company will start economically with plans of hiring a clerical, managerial and 
technical staff to assist [the beneficiary] with his business efforts. Initially, the company does 
not need to hire a set number of employees, as the company has not yet extended its business 
operation and will, for the time being, pay for all the U.S. expenses from abroad. However, 
the corporation has determined that after each fiscal quarter an evaluation will be conducted 
by [the beneficiary] in order to determine whether the company is within its financial goals to 
warrant employment of additional staff and increase of its corporate budget. 
After evaluating the first year, the company plans on the United States business activity to 
fully support at least one executive position, two managers positions, one secretarial position, 
and two additional divisions, the Marketing and the ImportIExport Divisions, as well as 
hiring an Accountant to comply with all the IRS, U.S. Customs export controls, and local 
government regulations. 
The petitioner submitted a proposed organizational chart for the U.S. company, which depicts the beneficiary 
as presidedmanager, and open positions for an office manager, a marketing division, an export officer, a 
financial officer/accountant, and a secretary. 
In the request for evidence issued on May 19, 2008, the director requested, inter alia: (1) a detailed business 
plan for commencing the start-up company in the United States, including specific dates for each proposed 
action for the next two years; (2) a more detailed description of the beneficiary's proposed duties; and (3) an 
organizational chart for the U.S. company and complete position descriptions for all proposed employees. 
In response, counsel for the petitioner further described the beneficiary's duties as the following: 
EAC 08 136 52730 
Page 14 
[The beneficiary] is the person in charge of all aspects of the business in the organizational 
stage for the company. He has been in charge of negotiating the contracts, purchase the 
supplies, leasing the office space, and has until now been in charge of all aspects of the 
company organization. He has broad authority to determine the company's goals and carry 
out the company's objectives. He has been negotiating all contracts for purchase of motor 
vehicles and equipment, he has finalized the purchase, and entrusted the shipping and 
customs procedures to International Trade Alliance, an established U.S. corporation 
specializing in this trade activities. 
The petitioner also submitted a statement from the beneficiary regarding his activities in the United States and 
his reasons for establishing the U.S. office. The beneficiary indicates that he was in contact with two U.S.- 
based salespeople, but did not hire them because they did not understand technical and mechanical aspects of 
purchasing quality vehicles and would not be able to conduct a thorough test drive and visual inspection, and 
because they could not be trusted with the funds to make payments for the cars. The beneficiary states that he 
decided to come to the United States personally to start the business because he has a U.S. drivers license and 
"understand very good the mechanical problems of the buying cars." 
The petitioner's response to the RFE included a business plan for the U.S. company. According to the 
business plan, the beneficiary, as director, would be the sole employee during the first year of operations, with 
a secretary and salesperson being hired during the second year, and a second salesperson hired during the 
third year. The business plan indicates that the beneficiary will be responsible for the entire operation, 
including financial operations, accounts payable, accounts receivables, interaction with auditors, sales, 
marketing, human resources and future hiring. The business plan includes a financial plan for the first three 
year of operation which confirms that the anticipated U.S. staffing level throughout the first year of operation 
is one person. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would 
exercise managerial or executive authority over the new office, or that the petitioner would grow to the point 
where it would require the services of a managerial or executive employee within one year. In denying the 
petition, the director found that the petitioner did not establish that the beneficiary would function at a senior 
level within the organizational hierarchy within one year, other than in position title, or that he would be 
involved in the supervision and control of the work of a subordinate staff of supervisory, professional or 
managerial personnel who could provide relief from performing the services of the U.S. company. The 
director also found that the petitioner submitted insufficient information and documentation regarding the size 
of the United States business and the financial ability of the foreign entity to commence doing business in the 
United States. The director's determination was based on the net income figures reflected on the foreign 
entity's tax returns, noting that the amounts indicated are "hardly enough funds to support an executive or 
managerial position." 
On appeal, counsel asserts that the director placed undue emphasize on the proposed size of the U.S. 
enterprise and failed to consider that "the chances of success of such an enterprise are high, based on the 
submitted proof of purchase and the estimated profits anticipated in the Business Plan." Counsel contends that 
the director requested unreasonable proof of the beneficiary's projected duties which cannot be provided. In 
EAC 08 136 52730 
Page 15 
addition, counsel emphasizes that "the Petitioner has shown that he intends to hire additional personnel as 
soon as the company is granted status in the U.S." Counsel also notes that the foreign entity's personnel will 
be engaged in the distribution of the exported automobiles and boats, and will be responsible for transporting, 
maintaining, storing and delivering the merchandise to Russian customers. 
With respect to the size of the financial investment and the ability of the foreign entity to commence business 
operations in the United States, counsel states that the director misinterpreted the foreign entity's tax 
documentation and did not analyze the financial information properly. 
Counsel concludes by noting that "the petitioner has not even been given the chance of conducting business 
unimpeded for one year," and suggests that a reasonable evaluation of the beneficiary's qualifications for L- 
1A status can only be made based on the company's development or lack of development after the first year. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the beneficiary 
would be employed in a primarily managerial or executive capacity within one year. 
Although the appeal will be dismissed for this reason, the AAO notes that the petitioner has established that 
the beneficiary's employment will involve executive or managerial level authority over the new operation. 
While the petitioner has not established that the beneficiary's duties would be primarily managerial or 
executive in nature within one year of commencing operations, the evidence of record is sufficient to establish 
that the beneficiary would be responsible for establishing the U.S. company's objectives and policies and 
would have overall decision-making authority for the company's activities. The AAO is also satisfied that the 
petitioner will have sufficient funding from the foreign entity and its customers to engage in the type of 
transactions planned for the first year of operations. Given the nature of the business, the petitioner has shown 
that it will not require a large investment, as it can operate from a one-person office, and is not responsible for 
directly providing the funds needed for purchasing and exporting cars. 
However, the petitioner has not established that the U.S. company will grow to point where it will have a need 
the beneficiary to perform primarily managerial or executive duties within one year of commencing 
operations. Specifically, the petitioner has not established that it will hire any subordinate staff within the first 
year of operations to relieve the beneficiary from personally performing the services of the corporation. In 
this regard, the AAO notes that there are substantial inconsistencies between counsel's assertions regarding 
the company's project staffing levels, and the petitioner's own business plan. Counsel indicated at the time of 
filing that the company will support an executive, two managers, one secretarial position, a marketing 
division, an import/export division and an accountant, and maintains on appeal that the beneficiary would 
begin hiring staff as soon as the petition is approved. However, the petitioner's business plan clearly indicates 
that the beneficiary will be the sole employee throughout the first year of operation. While it appears that the 
beneficiary would later add a secretary and salesperson some time during the second full year of operations, 
there is nothing in the business plan to support a finding that the company would support the organizational 
structure projected by counsel. Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 
(BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
EAC 08 136 52730 
Page 16 
Counsel suggests on appeal that USCIS cannot properly evaluate the beneficiary's managerial or executive 
capacity until he has been given one year to develop the company, and suggests that the director failed to 
consider the petitioner's business plan. However, the director correctly concluded that, based on the business 
plan, the petitioner failed to establish that the beneficiary, within one year, would be relieved from performing 
the non-qualifl-ing duties associated with the day-to-day operations of the petitioner's business. If a petitioner 
indicates that a beneficiary is coming to the United States to open a "new office," it must show that it is 
prepared to commence doing business immediately upon approval so that it will support a manager or 
executive within the one-year timeframe. See generally, 8 C.F.R. tj 214.2(1)(3)(~). At the time of filing the 
petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired sufficient 
physical premises to house the new office and that it will support the beneficiary in a managerial or executive 
position within one year of approval. Specifically, the petitioner must describe the nature of its business, its 
proposed organizational structure and financial goals, and submit evidence to show that it has the financial 
ability to remunerate the beneficiary and commence doing business in the United States. Id. The petitioner's 
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. 
USCIS is not compelled to grant the beneficiary one year to establish the new office simply because the 
petitioner complied with the evidentiary requirements at 8 C.F.R. tj 2 14.2(1)(3)(v)(C). While the petitioner has 
already commenced business operations and has submitted a business plan indicating that it expects the 
company to be profitable during the first year of operations, it also indicates that it will rely on the beneficiary 
to perform all functions associated with the U.S. component of the business, including non-qualifying duties 
such as researching cars for possible purchase, personally testing driving and inspecting cars, purchasing cars 
to fill customer orders, and arranging for the cars' export to Russia. In addition, as the only employee of the 
U.S. company, the beneficiary would also reasonably be expected to perform administrative and clerical 
functions associated with operating the U.S. business. 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 
Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
Given that the record indicates that the beneficiary would more likely than not be performing primarily non- 
qualifying duties within one year of the approval of the petition, rather than primarily directing the 
management of the organization, managing an essential function of the organization, or supervising a 
subordinate staff of managers, supervisors or professionals, or any other staff who could relieve him from 
performing the services of the company, the AAO is not compelled to conclude that the U.S. company will 
support a managerial or executive capacity within one year. For this additional reason, the petition cannot be 
approved. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d at 1043. 
EAC 08 136 52730 
Page 17 
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.