dismissed L-1A Case: Automotive Manufacturing

identifying data deleted to 
prevent clea;. 
 - - - ananted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Sec~rrity 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LINO5246 51978 Office: NEBRASKA SERVICE CENTER Date: NOV 2 8 20% 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 9 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. 
/ sob& P. Wlemann, Chief 
Administrative Appeals Office 
LIN 05 246 51978 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner claims to be a branch office olocated in South Korea, and it is authorized to 
conduct business in the state of Michigan. The petitioner states that the United States entity is engaged in 
the business of automotive component manufacturing, sales and distribution. Accordingly, the United 
States entity petitioned Citizenship and Immigration Services (CIS) to classifL the beneficiary as a 
nonimmigrant intracompany transferee (L-1A) pursuant to section 101(a)(15)(L) of the Act (the Act), 8 
U.S.C. 9 1101(a)(15)(L). The petitioner seeks to employ the beneficiary as branch manager for a period of 
one year to open a new office in the United States. 
On October 6, 2005 the director denied the petiti~n, concluding that the record contains insufficient 
evidence to demonstrate: (1) that sufficient physical premises to house the new office have been secured; (2) 
that the intended United States operation, within one year of the approval of the petition, will support an 
executive or managerial position; and, (3) that the petitioner will be doing business in the United States as 
required by the regulations. 
On October 24, 2005, the petitioner's counsel timely filed the instant appeal. On appeal, counsel for the 
petitioner asserts that the petitioner has met the requirements for a "new office" petition. In particular, the 
petitioner asserts that sufficient physical premises have been secured as the petitioner maintains an office 
within a separate company's office space. Counsel for the petitioner further asserts that the petitioner is 
not merely an agent of the foreign company in the United States. Furthermore, counsel for the petitioner 
asserts that the beneficiary will be employed in a managerial capacity in the United States since the 
beneficiary will be "managing a 'function."' Counsel submits a brief and additional documentation in 
support of the appeal. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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. 9 214.2(1)(3) further 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. 
LIN 05 246 5 1978 
Page 3 
(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. 
In addition, the regulation at 8 C.F.R. 9 214.2(1)(3)(v) 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 in the 
United States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new operation; 
and 
(C) The intended United States operation, withn one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) or (C) 
of this section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the foreign 
entity to remunerate the beneficiary and to commence doing business in the United 
States; and 
(3) The organizational structure of the foreign entity. 
The first issue in this proceeding is whether the petitioner has secured sufficient physical premises to 
house the new office in the United States as required under the regulations 8 C.F.R. 9 214.2(1)(3)(~). 
At the time of filing the original petition, the petitioner submitted a letter dated June 14, 2005, from the 
president of H.C. Olsen & Associates, Inc. confirming that the petitioner maintains an office at H.C. 
Olsen & Associates, Inc. The letter stated the following: 
[The petitioner] is a sub-supplier and their presence is required to provide U.S.A. 
customers with adequate technical support for ongoing projects and is not required to pay 
rent. We will support their office space requirements as long as necessary. 
LIN 05 246 5 1978 
Page 4 
On September 1, 2005, the director requested a copy of the lease agreement establishing that the 
petitioner secured sufficient physical premises for the new office. In the response, the petitioner 
resubmitted the above-mentioned letter indicating that the petitioner is utilizing the office space of a client 
company. 
In the denial decision, the director noted that the petitioner did not submit evidence "as to how long the 
petitioner expects this arrangement to last." In addition, the director noted that it appears the petitioner is 
not starting a new business but "merely needs an office to serve as a conduit for its foreign office." The 
director stated that the use of an office for an unspecified period of time does not satisfy the requirement 
of obtaining premises "sufficient" to house a company. 
On appeal, counsel for the petitioner asserts that the petitioner has acquired sufficient physical premises 
for the new office in the United States. Counsel for the petitioner states that the petitioner has an 
agreement with H.C. Olsen & Associates to utilize office space from them and the term is "as long as is 
required." Counsel for the petitioner asserts that the petitioner has opened a branch office since this is the 
petitioner's "first formal endeavor in the United States," and according to the regulations, a branch 
qualifies for an intracompany transferee. 
Upon review, the petitioner has not established that it secured sufficient physical premises to house the 
new office. Although requested by the director, the petitioner did not submit the lease agreement for H.C. 
Olsen & Associates, Inc. to establish that the company has secured office space and to establish the terms 
and length of the lease agreement. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Moreover, the petitioner has not described its anticipated space requirements for the new business, and 
the petitioner did not submit a lease or documentation to specify the amount or type of space secured. 
Based on the insufficiency of the information furnished, it cannot be concluded that the petitioner had 
secured sufficient space to house the new office. For this additional reason, the appeal is dismissed. 
The second issue to be addressed in this proceeding is whether the petitioner has established that the 
beneficiary would be employed in a primarily managerial or executive capacity within one year of the 
approval of the petition, as required by 8 C.F.R. 8 2 14.2(1)(3)(v)(C). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 
 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment withn an organization in whch the employee 
prirnarily- 
(i) 
 manages the organization, or a department, subdivision, function, or component of the 
organization; 
LIN 05 246 5 1978 
Page 5 
(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 withn 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 
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. § 1 lOl(a)(44)(B), provides: 
The term "executive capacity" means an assignment withn an organization in which the employee 
primarily- 
(i) 
 directs the management of the organization or a major component or hction of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The nonirnrnigrant petition was filed on August 23, 2005. The Form 1-129 indicates that the beneficiary will 
be employed in the position of branch manager. In the letter of support dated August 22,2005, the petitioner 
described the duties to be performed by the beneficiary as the following: 
[The beneficiary's] position will be General Branch Manager. [The beneficiary] will be 
reporting directly to the Senior Managng Director, Hee Tae Oh and worlang with our 
different departments to make sure that all customers' needs are being meet [sic]. Further, 
[the beneficiary] will be essentially the executive committee with regards to our U.S. 
activities.. .. There are several main objectives of ths new U.S. function: 1) to establish and 
maintain effective communication channels with our current customers; 2) providing much 
needed technical and engineering support; 3) managing and overseeing that quality standards 
(QS9000) and procedures are being complied with; and 4) recruiting and training employees 
to effectively carry-out new function of the U.S. office. 
The candidate must have worlung knowledge of both [the foreign company] and our 
ongoing U.S. accounts to effectively carry out the duties and responsibilities of this position. 
LIN0524651978 
Page 6 
The position will require that the candidate be able to exercise decision malung with 
minimal guidance from headquarters. The candidate must have a history of malng 
appropriate decisions, and must be results orientated [sic]. The candidate must also be able 
to support the ongoing processes from order placement, to delivery, and supporting 
commercial issues (price, deliver, quality, technology) in accordance with [the petitioner's] 
long-term objectives. The candidate must be able to deal with emergency situations and 
oversee technical and testing issues. The success of [the petitioner] relies on effective 
management and resolution of technical and quality issues. The timely resolution of 
technical issues and response to customer demand is crucial to the success of the company. 
Any delay in resolution of quality issues regarding our components or systems can affect the 
manufacturing line. If the manufacturing line is shut down or delayed, our company loses 
hundreds of millions of dollars. 
The position also required that the candidate effectively deal with all related quality control 
issues, which requires knowledge of all on-going programs and appropriate personnel in 
Korea. The most important function of the General Branch Manager will be to assure 
quality and technical support matters are handled effectively and immediately, in order to 
ensure that our product meets our customers' established time line. Specially, this position 
and the main function of the US. ofice will be to communicate and coordinate with all 
departments. In this position and at this time in our U.S. development ("'new office"), [the 
beneficiary] will not be directly managing subordinates at our U.S. branch; however, he will 
be delegating to his subordinate at [the foreign company]. In the coming year, we plan to 
hire domestic personnel for our U.S. branch; including, an Accounting Manager, Quality 
Control personnel, and Logstics Staff. ..As aforementioned, [the beneficiary] will be 
spending more than 70% of his time coordinating with [the foreign company] and our 
customers and customer representatives in meeting his objectives. The main reason for this 
position is threefold: 1) to provide sales, technical, and engineering support; 2) to maintain 
quality and technology standards; and 3) to establish a formal presence in the U.S. 
The balance of [the beneficiary's] time will be utilized in bringing the U.S. branch to full 
operational mode; approximately 15% will be attributed to reporting and communication 
with executive at headquarters; and 15% will be attributed to the other duties as outlined 
above such as establishing budgets for the operations of the U.S. branch, hiring and 
managng required personnel, and handling "new office" related matters. 
In addition, the petitioner submitted a proposed organizational chart for the U.S. branch. According to the 
organizational chart, the petitioner will be the "head official" who will then supervise an accounting manager, 
a quality staff and a logstics staff The organizational chart states that the petitioner plans to hire the 
accounting manager in 2005, the quality staff in 2006 and the logistics staff in 2007. 
On September 1, 2005, the director requested additional evidence to establish that the intended U.S. 
operation, within one year of operation, will support an executive or managerial position. In part, the 
director requested: the proposed nature of the office describing the scope of the entity, its organizational 
structure, and its financial goals, including the proposed number of employees, their job titles and duties; 
the size of the U.S. investment and the financial ability of the foreign entity to remunerate the beneficiary; 
LIN 05 246 5 1978 
Page 7 
and, the organizational structure of the foreign entity including the number of employees, their job titles 
and duties. Finally, the director noted that the petitioner was authorized to commence business in 2004 
and requested that the petitioner explain the delays in the start-up of the new business. 
In the response, the petitioner submitted the following details of the beneficiary's position in the United 
States: 
Establishing procedures and processes, bringing our U.S. office to full operational 
status: making sure all customer accounts are being handled appropriately, 
negotiating new supply agreements for new production orders.. . negotiating new 
contracts with warehousing and distribution centers, freight forwarders, and carriers. 
Recruiting and hiring appropriate staff for U.S. operations; meeting with and 
engaging appropriate professional personnel, such as corporation attorney and CPAs, 
working with legal to make sure that supply contracts are duly awarded and executed; 
Establishing budgets and forecasts for the U.S. office and reporting same to 
headquarters; 
Recommending long-term targets and objective to executives; 
Making sure that product and processes are compliant with industry, government, and 
South Korean quality standards and mandates; 
Meeting with customers' management with regards to ongoing programs and 
requirements; 
Establishing new quoting and response procedures with regards to new business; 
Worlung with headquarters to ensure that proper procedures and processes are 
established at [the petitioner]; and 
Reviewing subordinates' (in Korea) reports and making determinations with regard 
to required action. 
In addition, the petitioner indicated that the U.S. entity plans to "hire two to three additional employees by 
the year 2007 according to current awarded business." Furthermore, the petitioner indicated that the 
initial investment made to the U.S. branch office is $30,000 and the petitioner "has allocated $150,000 of 
its budget for 2006 for the U.S. branch," which included the salary for a proposed quality control 
specialist. The petitioner also submitted a revised proposed organizational chart which indicates that the 
company intends to hire "quality staff' in 2006, and an accounting manager and logistics staff in 2007. 
The director denied the petition on October 6, 2005 stating that the submitted evidence is not persuasive 
in establishing that the beneficiary's proposed position is in a capacity that is managerial or executive in 
nature. The director noted that the U.S. office does not appear to be a branch but "but merely an agent." 
The director noted that the beneficiary "will be merely taking order in the rent-free office space, and 
ensure their shipment to the U.S. customers." The director concluded that the petitioner has not 
demonstrated that the duties to be performed by the beneficiary will be primarily those of an executive or 
managerial nature. 
On appeal, counsel for the petitioner asserts that the beneficiary's proposed position involves "providing 
sales, technical, and engineering support; and maintaining quality and technology standards per our 
LIN 05 246 5 1978 
Page 8 
customers' demands." Counsel for the petitioner further asserts that the beneficiary will be employed in a 
managerial capacity, as he will be managing a function. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary will be 
employed in a managerial or executive capacity. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 9 
214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. 
In addition, 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). 
In the instant matter, the job description submitted by the petitioner provides little insight into the true 
nature of the tasks the beneficiary will spend on various duties. While the petitioner has provided a 
breakdown of the percentage of time the beneficiary will spend on various duties, the petitioner has not 
articulated whether each duty is managerial or executive. Thus, the AAO must attempt to glean the 
nature of the beneficiary's proposed duties from the vague descriptions submitted. 
The petitioner indicated in a support letter dated August 22, 2005, and counsel for the petitioner further 
reiterated the same on appeal, that the beneficiary will spend 70 percent of his time "coordinating with 
[the foreign company] and our customers and customer representatives in meeting his objectives. The 
main reason for this position is threefold: 1) to provide sales, technical, and engineering support; 2) to 
maintain quality and technology standards; and 3) to establish a formal presence in the U.S." According 
to the proposed U.S. organizational chart, it does not appear that the U.S. company plans to hire a sales 
manager to develop and manage the sales and marketing operation, or an engineering staff to handle the 
technical support. Thus, it appears that the beneficiary will be developing and implementing the sales 
functions and providing the technical and engineering support to customers, rather then supervising the 
work prepared by subordinate employees. The lack of employees for the beneficiary to direct and 
coordinate raises questions as to whether the beneficiary will be managing these activities or actually 
performing the petitioner's sales, marketing and technical support duties. Thus, it appears the beneficiary 
will spend a majority of his time performing non-managerial duties associated with sales and technical 
support. 
The petitioner further states that the beneficiary will spend 15 percent of his time "bringing the U.S. 
branch to full operational mode." As noted above, the proposed U.S. organizational chart indicates that 
the petitioner plans to hire an accounting manager in 2005, a quality staff in 2006 and a logistics staff in 
2007. Since the U.S. company plans to only hire an accounting manager within the first year of 
operation, it can be reasonably assumed that the beneficiary will perform several non-qualifying duties 
such as purchasing inventory, negotiating contracts, contacting new clients, researching the potential 
market, and preparing the budget. In addition, without additional clarification from the petitioner 
regarding the managerial or executive duties involved, the AAO cannot distinguish this vague 
LIN 05 246 51978 
Page 9 
responsibility from routine administrative tasks. These duties have not been shown to be managerial or 
executive in nature. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, the petitioner states that the beneficiary will spend 15 percent of his time "to the other duties 
as outlined above such as establishing budgets for the operation of the U.S. branch, hiring and managing 
required personnel, and handling "new office" related matters." As noted above, since the U.S. company 
only plans to hire an accounting manager within the first year of operation, it appears that the beneficiary 
will be performing the public relations and human resources operations and the day-to-day tasks in 
running a business and directly be providing the services of the business rather than directing such 
activities through subordinate employees. 
The beneficiary's position description is too general and broad to establish that the preponderance of his 
duties will be managerial or executive in nature. The beneficiary's job description also includes vague 
duties such as the beneficiary will be responsible for "establishing procedures and processes, bringing our 
U.S. office to full operational status," "establishing budgets and forecasts for the U.S. office and reporting 
same to headquarters," and "recommending long-term targets and objective to executives." 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), affd, 905 F.2d 41 (2d. Cir. 1990). The petitioner's descriptions of 
the beneficiary's position do not identify the actual duties to be performed, such that they could be 
classified as managerial or executive in nature. 
In addition, in the petitioner's response to the director's request for further evidence dated September 27, 
2005, the petitioner expanded the beneficiary's duties, adding items such as: the beneficiary will be 
responsible for "recruiting and hiring appropriate staff for the U.S. operations," "making sure all customer 
accounts are being handled appropriately, negotiating new supply agreements for new production order.. . 
negotiate new contracts with warehousing and distribution centers, freight forwarders, and carriers," 
"meeting with and engaging appropriate professional personnel, such as corporation attorney and CPAs, 
working with legal to make sure that supply contracts are duly awarded and executed," "making sure that 
product and processes are compliant with industry, government, and South Korean quality standards and 
mandates," "meeting with customers' management with regards to ongoing programs and requirements," 
and "establishing new quoting and response procedures with regards to new business." In sum, the initial 
description appeared to have the beneficiary doing more of the actual work, while the second iteration of 
the job has the beneficiary managing more of the actual work done in the petitioner's operation. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for 
the benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). When responding to a request for 
evidence, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or its associated job responsibilities. The 
petitioner must establish that the position offered to the beneficiary when the petition was filed merits 
classification as a managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 
LIN0524651978 
Page 10 
(Reg. Comm. 1978). If significant changes are made to the initial request for approval, the petitioner must 
file a new petition rather than seek approval of a petition that is not supported by the facts in the record. 
The information provided by the petitioner in its response to the director's request for further evidence did 
not clarify or provide more specificity to the original duties of the position, but rather added new generic 
duties to the job description. Therefore, the analysis of this criterion will be based on the job description 
submitted with the initial petition. 
On appeal, counsel for the petitioner indicates that the beneficiary is a functional manager. However, the 
petitioner has not established that the beneficiary will be managing an essential function of the U.S. 
company. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 101 (a)(44)(A)(ii) of the Act, 8 U.S.C. 3 1 101 (a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that clearly 
describes the duties to be performed in managing the essential function, i.e. identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential function. See 8 C.F.R. 3 214.2(1)(3)(ii). In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. An employee who primarily performs the 
tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this 
matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
As discussed above, the beneficiary's job description included primarily non-qualifying duties associated 
with the petitioner's day-to-day functions, and the petitioner has not identified any other employees within 
the petitioner's organization, subordinate to the beneficiary, who would relieve the beneficiary from 
performing routine duties inherent to operating the business within one year. The fact that the beneficiary 
has been given a managerial job title and general oversight authority over the business is insufficient to 
elevate his position to that of a "function manager" as contemplated by the governing statute and 
regulations. 
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. 5 214.2(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. 
LIN0524651978 
Page 11 
Furthermore, as contemplated by the regulations, a comprehensive business plan should contain, at a 
minimum, a description of the business, its products and/or services, and its objectives. See Matter of Ho, 
22 I&N Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory 
requirements for the alien entrepreneur immigrant visa classification, Matter of Ho is instructive as to the 
contents of an acceptable business plan: 
The plan should contain a market analysis, including the names of competing businesses 
and their relative strengths and weaknesses, a comparison of the competition's products 
and pricing structures, and a description of the target 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 and/or the distribution of products. It should discuss the 
marketing strategy of the business, including pricing, advertising, and servicing. The plan 
should set forth the business's organizational structure and its personnel's experience. It 
should explain the business's staffing requirements and contain a timetable for hiring, as 
well as job descriptions for all positions. It should contain sales, cost, and income 
projections and detail the bases therefore. Most importantly, the business plan must be 
credible. 
Id. 
The petitioner submitted a one page "Business Master Plan" that includes a vague time-line of the new 
business development of the U.S. entity. The petitioner did not submit a business plan that outlines how 
the U.S. entity will reach the listed goals and plans and if it is financially feasible to do so as requested by 
the director. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
Finally, on review, the record as presently constituted is not persuasive in demonstrating that the 
beneficiary will be employed in a primarily managerial or executive capacity. The petitioner has not 
submitted an adequate business plan or otherwise demonstrated that the U.S. company will hire additional 
employees after one year of operation who would relieve the beneficiary from performing primarily non- 
qualifying duties associated with operating a 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. at 604. The regulations at 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of the petition to support an 
executive or managerial position. In the instant matter, the petitioner has not established that it will 
employ the beneficiary in a predominantly managerial or executive position after one year of operation. 
Accordingly, the appeal will be dismissed. 
The third issue to be addressed in this proceeding is whether the petitioner will be doing business for the 
first year of operation as required by 8 C.F.R. 5 214.2(1)(14)(ii)(B). 
LIN0524651978 
Page 12 
The regulations at 8 C.F.R. fj 214.2(1)(l)(ii)(G) state: 
Qualzfiing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) 
 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; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one 
other country directly or through a parent, branch, affiliate, or 
subsidiary for the duration of the alien's stay in the United States as 
an intracompany transferee; and 
(3) 
 Otherwise meets the requirements of section 101(a)(15)(L) of the 
Act. 
The regulations at 8 C.F.R. fj 214.2(1)(l)(ii)(H) state: 
Doing business means the regular, systematic, and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent 
or office of the qualifying organization in the United States and abroad. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows the intended United States operation one year within 
the date of approval of the petition to establish the new office. Furthermore, at the time the petitioner 
seeks an extension of the new office petition, the regulations at 8 C.F.R. fj 214.2(1)(14)(ii)(B) requires the 
petitioner to demonstrate that it has been doing business for the previous year. The term "doing business" 
is defined in the regulations as "the regular, systematic, and continuous provision of goods and/or services 
by a qualifying organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad." 8 C.F.R. fj 214,2(1)(l)(ii)(H). 
The director in the decision stated the following: 
With regard to the petitioner actually "doing business," the Service does not consider the 
United States entity to be a qualifving organization because it does not appear the 
petitioner will actually be "doing business," as defined by Part 214.2(1)(l)(ii)W). The 
petitioner has stated it will be acting as an agent or administrative conduit for arranging 
material transfers between its parent organization, and US businesses. The petitioner will 
not be providing a regular, systematic and continuous provision of goods and/or services, 
as is required by regulations, and therefore does not meet this criterion. 
On appeal, counsel for the petitioner states that since this is a "new office" petition rather than an 
extension petition, the petitioner must only establish that the size of the United Sates investment and the 
financial ability of the foreign entity to remunerate the beneficiary in order to commence doing business 
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in the United States. Counsel for the petitioner further asserts that the branch office in the United States 
has been established and thus falls under the regulations as an acceptable qualifying relationship with the 
foreign company. Counsel asserts that the petitioner was established to support and provide direct 
services to the company's customers, including technical services. Counsel emphasizes that the U.S. 
office "will be directly providing products and services." 
In defining the nonimmigrant classification, the regulations specifically provide for the temporary 
admission of an intracompany transferee "to the United States to be employed by a parent, branch, 
affiliate, or subsidiary of [the foreign firm, corporation, or other legal entity]." 8 C.F.R. 8 214.2(1)(1)(i) 
(emphasis added). The regulations define the term "branch" as "an operating division or office of the 
same organization housed in a different location." 8 C.F.R. 214.2(1)(l)(ii)(J). CIS has recognized that 
the branch office of a foreign corporation may file a nonimrnigrant petition for an intracompany 
transferee. See Matter of Kloetti, 18 I&N Dec. 295 (Reg. Comm. 198 1); Matter of Leblanc, 13 I&N Dec. 
816 (Reg. Comm. 1971); Matter of Schick, 13 I&N Dec. 647 (Reg. Comm. 1970); see also Matter of 
Penner, 18 I&N Dec. 49, 54 (Comm. 1982)(stating that a Canadian corporation may not petition for L-1B 
employees who are directly employed by the Canadian office rather than a United States office). When a 
foreign company establishes a branch in the United States, that branch is bound to the parent company 
through common ownership and management. A branch that is authorized to do business under United 
States law becomes, in effect, part of the national industry. Matter of Schick, supra at 649-50. 
Upon review of the documents submitted on appeal, the petitioner has established that the United States 
entity is a qualifying branch office of the foreign company which will be doing business in the United 
States. The petitioner submitted a letter from the Michigan Department of Consumer and Industry 
Services indicating that the state endorsed the foreign company's application for certificate of authority, 
and a letter from the state of Michigan confirming that the petitioner is authorized to transact business in 
Michigan. 
The director erred in basing her decision on the fact that the majority of the revenue derives from the 
parent company. The regulations do not limit a corporation from doing business with its parent company. 
Therefore, the fact that a petitioner is engaged in business transactions with a related foreign entity should 
not be the determinative factor in deciding whether the company is doing business. A representative 
office is not specifically excluded by the definition of "doing business," provided that it shows that it is 
engaged in the provision of goods and services, albeit on behalf of a related foreign entity. Therefore, the 
petitioner has established that it is doing business as defined by 8 C.F.R. 5 214.2(1)(l)(ii)(H). The 
director's decision with respect to this issue is withdrawn. 
In addition, on appeal, counsel requests oral argument before the AAO and suggests that the director's 
adjudication of the petition was unfair. The petitioner has not demonstrated any error by the director in 
conducting its review of the petition. Nor has the petitioner demonstrated any resultant prejudice such as 
would constitute a due process violation. See Vides-Vides v. INS, 783 F.2d 1463, 1469-70 (9th Cir. 
1986); Nicholas v. INS, 590 F.2d 802, 809-10 (9th Cir. 1979); Martin-Mendoza v. INS, 499 F.2d 918,922 
(9th Cir. 1974), cert. denied, 419 U.S. 1 113 (1975). 
Furthermore, the regulations provide that the requesting party must explain in writing why oral argument 
is necessary. 
 Pursuant to 8 C.F.R. 
 103.3(b), Citizenship and Immigration Services has the sole 
LIN 05 246 5 1978 
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authority to grant or deny a request for oral argument and will grant argument only in cases involving 
unique factors or issues of law that cannot be adequately addressed in writing. In this instance, counsel 
identified no unique factors or issues of law to be resolved. In fact, counsel set forth no specific reasons 
why oral argument should be held. Moreover, the written record of proceedings fully represents the facts 
and issues in this matter. Consequently, the request for oral argument is denied. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as 
an independent and alternative basis for denial. 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. tj 
136 1. Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.