dismissed L-1A Case: Automobile Services

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: EAC 07 053 52104 Office: VERMONT SERVICE CENTER Date: my 2 0 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1101(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. 
Rpbert P. Wiemann, C 
- 
8 
inistrative Appeals Office 
EAC 07 053 52104 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnrnigrant 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 in the position of president 
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 corporation organized under the laws of the State of Texas, is allegedly in the automobile 
services business. 
The director denied the petition concluding that the petitioner failed to establish: (1) that the United States 
operation will support an executive or managerial position within one year; or (2) that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the petitioner has established 
that the beneficiary primarily performed, and will perform, qualifying duties. 
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. tj 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 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. 
EAC 07 053 52 104 
Page 3 
In addition, the regulation at 8 C.F.R. 5 214.2(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 (I)(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. 
 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 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
EAC 07 053 52104 
Page 4 
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 first 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 described the beneficiary's duties in establishing the proposed automobile service business in a 
letter dated December 14, 2006 as follows: 
[The beneficiary] will direct the overall operation of the company. 
 He will hire, train, 
supervise and fire all managers, who in turn, will perform the same functions with respect to 
lower echelon employees. He will establish our financial relations and be responsible for all 
tax and other required reports. 
He will report directly to the parent company. 
 Our company has delegated to [the 
beneficiary] a wide discretionary authority to make decisions concerning directions and 
operations of the U.S. subsidiary. 
On January 17, 2007, the director requested additional evidence. The director requested, inter alia, evidence 
that the beneficiary, within one year of operation, will be relieved from performing non-qualifying tasks; a 
description of the beneficiary's proposed duties, including a breakdown of the number of hours devoted to 
each of the beneficiary's proposed duties on a weekly basis; a description of the petitioner's personnel 
structure; descriptions of the job duties of any subordinate supervisors; an organizational chart for the 
proposed United States operation; and a copy of the petitioner's business plan. 
In response, the petitioner further described the beneficiary's proposed job duties as follows: 
Responsibilities include defining the objectives of the company and directing the overall 
operations of the U.S. Company. Responsible for initiating and implementing expansion 
EAC 07 053 52 104 
Page 5 
plans for the company as well as establishing and maintaining budgets, meeting profitability 
levels, and ensuring the overall growth of the company. Time spend on duties 100%[.] 
[The beneficiary] is in charge of overseeing a company that operates an automotive repair 
shop. It is necessary that he has [sic] extensive management, automotive repair knowledge 
and business experience to oversee operations. 
Management - 60% 
Responsible for overseeing the management of the company; Recruiting and terminating 
managerial and subordinate employees where the need arises; Liaising with General Manager 
to oversee daily activities of the company and establishment of procedures and policies. 
Contract Negotiations [--I 20% 
In charge of final approval of contracts with vendors and large customer orders; He has the 
authority to use his discretion in binding the company in contractual obligations. 
Financials [--I 20% 
Sets financial goals & budgets for company restoration projects. Approve all accounting, 
financing & investment activities; 
Cost management; setting bidding policies; arrangement for loans for customers from lending 
institutions; Will oversee company profitability; Will set financial policies and goals of the 
company[.] 
As President, he holds the highest position in the company. Initially, [the beneficiary] will 
directly oversee a management staff of three. He will be responsible for hiring a subordinate 
staff which will include a shop manager, who will be in charge of overseeing subordinate 
employees which will include a senior mechanic, mechanics, body man, electrician, painter. 
In addition, the company will establish a sales department which will be led by a manager 
and sales staff. 
The petitioner also submitted a proposed organizational chart for the United States operation and job 
descriptions for the three proposed subordinate supervisors. The chart shows the beneficiary at the top of the 
organization directly supervising a "vice presidenttgeneral manager" who, in turn, is portrayed as supervising 
a secretary, a shop manager, and a sales manager. The shop manager and sales manager are both, in turn, 
portrayed as supervising subordinate staff. As the petitioner's descriptions of the proposed duties of the vice 
president/general manager, shop manager, and sales manager are in the record, these descriptions will not be 
repeated here. Generally, these proposed employees are described as supervising subordinate workers, and 
operating the business in general, within a four-tiered management hierarchy with the beneficiary serving at 
the top of the organization. 
EAC 07 053 52104 
Page 6 
The petitioner also submitted a "plan" further describing the proposed United States operation. The plan 
describes the proposed operation as a "quality, full-service Auto Repair and Auto Sales business" which will 
offer oil changes, wrecker services, pre-purchase inspections, and other repair services. The petitioner 
projects start-up expenses of $55,000.00 and 2007 sales of $260,000.00. 
On July 20, 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 also claims that the petitioner is now planning to open 
two locations and hire 19 or 20 employees instead of operating the single-location, 8 or 9-employee 
organization, originally described. Consequently, the petitioner asserts that the beneficiary will directly 
manage 5 supervisors instead of the 3 described in the business plan. The petitioner also submits a bank letter 
dated August 13, 2007 indicating that the petitioner has $14,500.00 in its checking account and a "letter of 
intent" vaguely describing the petitioner's "partnership" with a third party for its claimed second location. 
Upon review, 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 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. 
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, 2 13 (Assoc. Cornrn. 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 marketlprospective 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 andlor 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 07 053 52104 
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 a sufficient 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. § 214.2(1)(3)(v)(C). 
As a threshold issue, the petitioner's attempt on appeal to expand the scope and nature of the proposed United 
States operation from one to two locations, thus doubling the size of the proposed staff, was inappropriate and 
will not be considered by the AAO. On appeal, 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 the 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). 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 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Furthermore, the director specifically requested evidence that the beneficiary, within one year of operation, 
will be relieved from performing non-qualifying tasks, a description of the petitioner's personnel structure, 
descriptions of the job duties of any subordinate supervisors, an organizational chart for the proposed United 
States operation, and a copy of the petitioner's business plan. However, in response to the Request for 
Evidence, counsel failed to address the "second location." Where, as here, a petitioner has been put on notice 
of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO will 
not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); 
see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Under the circumstances, the AAO need not 
and does not consider the sufficiency of the evidence submitted on appeal, and the appeal will be adjudicated 
based on the record of proceeding before the director. 
In view of the above, and 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 after the petitioner's first year in 
operation. When examining the proposed executive or managerial capacity of the beneficiary, the AAO will 
EAC 07 053 52104 
Page 8 
look first to the petitioner's description of the proposed job duties. See 8 C.F.R. § 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. ~d.' 
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 
operation. For example, the petitioner states that the beneficiary will devote 60% of his time to "overseeing 
the management of the company" which will consist of hiring and firing workers, "liaising" with a 
subordinate supervisor, and establishing "procedures and policies." However, the petitioner fails to 
specifically describe these procedures and policies, or to explain what, exactly, the beneficiary will do to on a 
day-to-day basis. Overall, the petitioner has provided so few details regarding its proposed automobile 
service 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 or executive 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. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 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. Comm. 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 it will hire eight or nine additional employees, including 
three supervisors, 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 "quality, full-service Auto Repair and Auto Sales business" which will offer oil 
changes, wrecker services, pre-purchase inspections, and other repair services. The petitioner projects start- 
up expenses of $55,000.00 and 2007 sales of $260,000.00. However, the plan and associated financial 
projections are entirely unsupported by evidence. The record does not specifically describe the operation's 
marketing strategy, location, pricing, licensing requirements, competitors, business relationships, or potential 
customers. The record does not contain any purchase orders or contracts, and the only evidence addressing its 
assets is a letter indicating that the petitioner has $14,500.00 in a bank account. 
'It is noted that, while counsel appears to limit the beneficiary to the managerial classification on appeal, 
counsel describes the beneficiary's position as "executive" in her letter dated December 14, 2006. Likewise, 
counsel describes the beneficiary's foreign position as "managerial or executive" in the December 14, 2006 
letter. Given the lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary has 
been and will be employed in either a managerial or executive position and will consider both classifications. 
EAC 07 053 52104 
Page 9 
Accordingly, the petitioner's claim that its newly formed operation will hire eight 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. at 190. Simply alleging that the petitioner will hire eight or nine 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 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, after the first year in 
operation, the beneficiary will directly supervise a "vice presidentlgeneral manager" who, in turn will 
supervise a secretary, a shop manager, and a sales manager. The shop manager and sales manager will both, 
in turn, supervise subordinate staff. However, the petitioner has failed to establish that any of these proposed 
workers will truly be a supervisory or managerial employee. 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 automotive service 
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 13 13 (9" Cir. 2006). It is not credible that a business, such as 
the petitioner's proposed United States operation, will develop an organizational complexity within one year 
which will require a four-tiered management hierarchy ultimately supervised and controlled by a primarily 
executive or managerial employee. Therefore, it appears that the beneficiary will be, at most, a first-line 
supervisor of non-professional employees. See id. A managerial or executive employee must have authority 
'1t should be noted that, even if the AAO considered the expanded, two-location description of the business 
submitted on appeal, the petition could still not be approved. As explained above, the petitioner has failed to 
credibly establish that it will be able to employ eight or nine employees during its first year in operation and 
commence doing business as an automobile service business. The petitioner's claim on appeal that it will 
employ nineteen or twenty employees at two locations is even more incredible. The petitioner failed to 
disclose the address of either location, and the petition is devoid of any independent evidence establishing that 
the petitioner will be able to employ any workers. 
EAC 07 053 52104 
Page 10 
over day-to-day operations beyond the level normally vested in a first-line supervisor. See 101(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. 5 214.2(1)(3)(v)(C)(Z). In this matter, the petitioner claims to have $14,500.00 in a 
checking account. However, as the petitioner projects start-up costs of $25,000.00 and asserts that "[aln 
additional amount of $30,000 will be required as start-up assets," it has not been established that it has 
received an investment which will pennit the establishment and operation of the United States operation. 
Furthermore, the record is devoid of any evidence that the petitioner will be able to generate any significant 
revenue after it begins doing business. 
Accordingly, as the petitioner has failed to establish that it has received a sufficient investment, 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. 4 214.2(1)(3)(v)(C)(I). As explained above, the petitioner 
vaguely describes the United States operation as a "quality, full-service Auto Repair and Auto Sales business" 
which will offer oil changes, wrecker services, pre-purchase inspections, and other repair services. The 
petitioner projects start-up expenses of $55,000.00 and 2007 sales of $260,000.00. However, the plan and 
associated financial projections are entirely unsupported by evidence. The record does not specifically 
describe the operation's marketing strategy, location, pricing, licensing requirements, competitors, business 
relationships, or potential customers. The record does not contain any purchase orders or contracts, and the 
only evidence addressing its assets is a letter indicating that the petitioner has $14,500.00 in a bank account. 
The record does not contain any independent analysis and fails to address fundamental issues essential to 
establishing that the proposed business is viable. 
For example, the petitioner asserts that it will provide "wrecker services." However, the record fails to 
explain how this service will be provided and with what equipment. The petitioner also fails to establish 
where, exactly, the United States operation will do business. As noted infra, the petitioner's place of business 
appears to be a residential apartment. Absent a detailed, credible description of the petitioner's proposed 
United States business operation specifically addressing the petitioner's proposed services, pricing, marketing 
plan, competitors, 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. 4 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
EAC 07 053 52 104 
Page 11 
The second issue in the present matter is whether the petitioner has established that the beneficiary was 
employed in a primarily managerial or executive capacity with the foreign entity for one year within the 
preceding three years. 8 C.F.R. $5 214.2(1)(3)(iii) and 214.2(1)(3)(v)(B). 
The foreign employer describes the beneficiary's duties abroad in a letter dated June 27,2006 as follows: 
[I]n June 2004, after two year of so absence [the beneficiary] rejoined our company as 
Managing Director in charge of overseeing our management staff and marketing. His duties 
as [managing director] have included implementation of company goals and procedures; 
formulating business strategies; negotiating and entering into contracts with transport 
companies and auto insurance companies; establishing policies and procedures for stafc 
conducting quality assurance checks; and handling of all major customer service issues. On 
the marketing side, [the beneficiary's] responsibilities included contacting and entertaining 
auto dealership executives, potential buyers of luxury/recreational vehicles and insurance 
company senior-level personnel; formulation of marketing strategies; corresponding with 
overseas exporters of used!damaged/salvaged vehicles for purchase. 
On July 20, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was employed abroad in a primarily managerial or executive position. 
On appeal, counsel asserts that the director erred and that the beneficiary performed qualifying duties abroad. 
In support, counsel submitted an organizational chart of the foreign employer showing the beneficiary 
supervising directly or indirectly 22 subordinate workers, including three subordinate supervisors. Counsel, 
however, did not describe any of the job duties of these subordinate workers. 
Upon review, counsel's assertions are not persuasive. 
As noted above, when examining the executive or managerial capacity of the beneficiary, the MO will look 
first to the description of the job duties. See 8 C.F.R. $5 214.2(1)(3)(ii)-(iv). The petitioner's description of 
the job duties must clearly describe the duties that were performed by the beneficiary and indicate whether 
such duties were either in an executive or managerial capacity. Id. 
In this matter, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. In support of the petition, 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. For example, the foreign employer claims that beneficiary established 
goals, procedures, strategies, and policies. However, the petitioner failed to specifically define these goals, 
procedures, strategies, and policies, and did not explain what, exactly, the beneficiary did to "oversee" the 
management of the business. Specifics are clearly an important indication of whether a beneficiary's duties 
were primarily executive or managerial in nature; othenvise 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. 
EAC 07 053 52104 
Page 12 
Furthermore, the petitioner failed to describe the duties of the beneficiary's 22 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. The petitioner also failed to establish that any of the 
subordinate "supervisors" was truly a managerial, supervisory, or professional employee. In view of the 
above, it appears that the beneficiary was more likely than not primarily a first-line supervisor of non- 
professional workers. A managerial or executive employee must have authority over day-to-day operations 
beyond the level normally vested in a first-line supervisor. See 101(a)(44) 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 failed to establish that it has secured sufficient physical 
premises to house the new office. 8 C.F.R. 4 214.2(1)(3)(v)(A). 
In support of its petition, the petitioner submitted a copy of a documented titled "real estate lease" which 
indicates that the petitioner has leased "500 sq. ft. office s ace with small lobby and, a small office" located 
at . The landlord, , is also the person who signed 
the Form 1-129 and the December 14, 2006 support letter as the petitioner's "vice president." However, it is 
not credible that 500 square feet of office space would sufficiently house the automotive service business 
vaguely described in the business plan. Furthermore, it does not appear that the "real estate lease" is a bona 
fide lease for office space. It appears that this lease concerns a residential property occupied by the landlord, 
the beneficiary, or both of them. The evidence is not credible and will not be given any weight in this 
proceeding. If CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact. Section 
204(b) of the Act, 8 U.S.C. 5 1 154(b); see also Anetekhai v. INS., 876 F.2d 121 8, 1220 (5th Cir.1989); Lu- 
3 
In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 110l(a)(32), states that "[tlhe termprofession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shirt, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by subordinate employee. The possession of a bachelor's 
degree by a subordinate employee does not automatically lead to the conclusion that an employee was 
employed in a professional capacity as that term is defined above. In the instant case, the petitioner has not, 
in fact, established that a bachelor's degree was actually necessary to perform the duties of any of the claimed 
subordinate supervisors. 
EAC 07 053 52104 
Page 13 
Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 
7, 15 (D.D.C. 2001). 
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 it and the foreign employer are 
qualifying organizations. 
The regulation at 8 C.F.R. fj 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. tj 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 corporation "of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity." 8 C.F.R. tj 214.2(1)(l)(ii)(K). 
In this matter, the petitioner asserts in the Form 1-129 that it is 51% owned by the foreign employer located in the 
United Arab Emirates. In support of this assertion, the petitioner submitted a copy of a stock certificate issuing 
510 shares to the foreign employer. However, in response to the Request for Evidence, counsel asserts in her 
March 16, 2007 letter that the foreign employer controls 100% of the petitioner. The petitioner offers no 
explanation for this inconsistency in the record. 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). 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. Id. at 591. 
Accordingly, as CIS cannot discern whether the petitioner and the foreign employer share common ownership 
and control due to the unresolved inconsistencies in the record, 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), afp, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
EAC 07 053 52104 
Page 14 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 
 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.