dismissed L-1A Case: Beachwear And Sportswear

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p- COPY: 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 11 0 1 (a)(lS)(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. 
~obeh P. Wiemann, ~&f 
dministrative Appeals Office 
EAC 07 055 51698 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
petitioner filed a motion to reconsider. The director granted the motion and affirmed his prior decision to 
deny the petition. The matter is now before the Administrative Appeals Office (MO) on appeal. The MO 
will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of general 
manager 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. § 
I 10 1 (a)(15)(L). The petitioner, a corporation organized under the laws of the State of Florida, is allegedly in 
the beachwear and sportswear business. 
The director denied the petition concluding that the petitioner failed to establish that the United States 
operation will support an executive or managerial position within one year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the petitioner has established 
that the beneficiary will perform qualifying duties within one year of petition approval. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(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 hider to perfonn the intended 
services in the United States; however, the work in the United States need not be the 
EAC 07 055 51698 
Page 3 
same work which the alien performed abroad. 
In addition, the regulation at 8 C.F.R. $ 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been 
secured; 
(B) 
 The beneficiary has been employed for one continuous year in the 
three year period preceding the filing of the petition in an executive 
or managerial capacity and that the proposed employment involved 
executive or managerial authority over the new operation; and 
(C) The intended United States operation, within one year of the 
approval .of the petition, will support an executive or managerial 
position as defined in paragraphs (l)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial 
ability of the foreign entity to remunerate the beneficiary and 
to commence doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 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 07 055 5 1698 
Page 4 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The primary issue in this matter is whether the intended United States operation, within one year of the approval 
of the petition, will support an executive or managerial position. 
The petitioner claims that the United States operation will market and distribute sportswear and beachwear 
manufactured and imported by the foreign employer in Venezuela. The petitioner submitted a letter from 
Bank of America dated November 16, 2005, which is over one year prior to the filing of the instant petition, 
indicating that the petitioner's account had a balance of $20,000.00 at that time. The petitioner also submitted 
a bank statement pertaining to the beneficiary's personal bank account indicating that, in 2001, the beneficiary 
had approximately $29,000.00 in a United States bank account. 
On December 27, 2006, the director requested additional evidence. 
 The director requested, inter alia, 
evidence that the beneficiary, within one year of commencing operations, will be relieved from performing 
non-qualifying tasks; an organizational chart for the proposed United States operation; and job descriptions 
for the beneficiary's proposed subordinates in the United States, including breakdowns of the number of hours 
devoted to each of the employees' duties on a weekly basis. 
In response, counsel submitted a letter dated March 1, 2007 in which she described the beneficiary's proposed 
duties as follows: 
Delegate and coordinate activities of the organization to ensure optimum efficiency 
and economy of operations and maximize resources and profit. 
Plan and develop organizational policies and procedures, and implement the pursuit 
of set corporate objectives through subordinate administrative personnel. 
EAC 07 055 5 1698 
Page 5 
a Coordinate activities of divisions and departments, such as operations, 
manufacturing, planning, sales, and product development, to streamline process for 
ultimate productivity. 
a 
 Direct and coordinate the promotion of products manufactured to develop new 
markets, increase marketshare, and secure competitive position within the industry. 
a 
 Analyze the organization's budget to identify key areas in which reductions can be 
made, and allocate operating budget. 
a 
 Confer with administrative personnel, and review activity, operating, and sales 
reports to determine changes in programs or operations required. 
a 
 Oversee preparation of directives for organization outlining policy, program, or 
operations changes to be implemented. 
a 
 Promote recognition of the organization within the industry and manufacturingltrade 
associations by leading key outreach activities as the face of the US entity. 
Counsel also described the petitioner's proposed hiring plan as follows: 
Within one year of operation, it is anticipated that the beneficiary will be relieved from 
performing the non-managerial, day-to-day operations involved in producing a product or 
providing a service. Initially, an administrative assistant will be hired to support the General 
Manager. Within the next few months or operation, the General Manager will hire Sales 
Representatives, a Distribution Manager, and Delivery Personnel. As operations increase, a 
SalesIOperations Manager, experienced in the company's wholesale market will be hired to 
further relieve the General Manager of any non-managerial duties. 
Finally, counsel described the anticipated duties of the seven subordinate employees which the petitioner 
projects it will hire within one year. As these job descriptions are in the record, they will not be repeated here 
verbatim. Generally, the sales/operations manager position is described as requiring a bachelor's degree and 
as administering sales matters. The sales representative positions are described as performing sales tasks and 
as reporting to the sales/operations manager. The distribution manager position is generally described as 
administering the "distribution warehouse" and the associated receipt and shipment of goods. The delivery 
personnel are described as performing delivery tasks, and the administrative assistant is described as 
performing clerical duties. An attached organizational chart also indicates that the beneficiary will directly 
supervise the administrative assistant, the sales/operations manager, and the distribution manager. The sales 
representatives and the delivery personnel will be supervised by the subordinate "managers." 
The petitioner also submitted a document dated February 2007 titled "business plan." The plan explains that 
the proposed United States operation will "fill a void" which exists in South Florida by offering "high quality 
and affordable swimwear to the South Florida market." The petitioner describes its marketing strategy as 
follows: 
To fulfill our projections management will be using an aggressive direct marketing technique 
to represent a complete line of top quality products in terms of both material and 
EAC 07 055 5 1698 
Page 6 
craftsmanship. Sales representatives will contact local swimwear retail stores and develop a 
network that will augment our market penetration. 
The corporation will employ well established sales and marketing individuals that will [be] 
able to market our product while visiting all South Florida non-national chains. We have 
developed an initial list of area businesses to which we direct [sic] our marketing strategy. 
This marketing strategy as mentioned before will offer the highest quality swimwear for an 
accessible price that will appeal to all fashion sectors. 
The plan also generally indicates that the petitioner will promote and advertise its products. 
Finally, the business plan projects first year operating expenses and cost of goods to be approximately 
$1 11,000.00. The plan also projects first year revenues of $150,000.00 and claims that an initial start-up 
investment of $20,000.00 "will be sufficient to cany the enterprise for the first four months of business." 
On April 2, 2007, the director denied the petition concluding that the petitioner failed to establish that the 
United States operation will support an executive or managerial position within one year. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval. Counsel also argues that the director's decision is "inconsistent" 
with a decision pertaining to the denial of a similar "new office" petition previously filed by the same 
petitioner on behalf of the same beneficiary (SRC 06 00 50983). In that decision, the director denied the 
petition because the petitioner failed to establish that the foreign employer funded the start-up of the United 
States operation. Counsel argues that, because the director did not address the petitioner's ability to support a 
managerial or executive position within one year, it can be concluded "that the Petitioner met its burden of 
proof when establishing [the beneficiary's] capacities as General Manager, the bona fide nature of the Foreign 
Company and its desire to open its business in the U.S." 
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. tj 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. 
EAC 07 055 5 1698 
Page 7 
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 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 
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. 
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. tj 214.2(1)(3)(v)(C). 
As a threshold issue, counsel's argument that the director's decision was erroneous because it is allegedly 
"inconsistent" with an earlier decision pertaining to the same petitioner and beneficiary is without merit. As 
noted above, counsel argues that the director's denial of an earlier petition (SRC 06 060 50983) on the basis 
that the petitioner failed to establish that the foreign employer funded the start-up of the United States 
operation is inconsistent with the reasoning in the instant petition. Counsel argues that, because the director 
did not address the petitioner's ability to support a managerial or executive position within one year in the 
previous decision, it can be concluded "that the Petitioner met its burden of proof when establishing [the 
beneficiary's] capacities as General Manager, the bona fide nature of the Foreign Company and its desire to 
open its business in the U.S." Accordingly, counsel insinuates that the director's denial of the instant petition 
on this basis was erroneous since it has been already implicitly decided by the director that the petitioner had 
met its burden of proof on this issue. However, this argument is without merit. First, the regulations do not 
require the director to list every deficiency in a petition before issuing a denial. The regulations only require 
that the director explain the specific reasons for the denial. 8 C.F.R. tj 103.3(a)(l)(i); see also 8 C.F.R. tj 
214.2(1)(8)(ii). Just because the director fails to list a certain deficiency as a specific reason for the denial 
EAC 07 055 5 1698 
Page 8 
does not mean that it can be assumed that the director has determined that the petitioner successfully carried 
its burden of proof on this issue. Absent a specific statement by the director in his or her decision, there is 
simply no authority to support this conclusion. Second, even if the director had approved the earlier petition 
or had expressly stated that the petitioner had met its burden of proof on this issue, which he did not, 
Citizenship and Immigration Services (CIS) would not be required to approve the instant petition if eligibility 
has not been demonstrated in this case merely because of prior approvals or statements that may have been 
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Cornm. 1988). It 
would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent. 
Sussex Engr. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).' 
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 
look first to the petitioner's description of the proposed 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 that will be performed by the 
beneficiary and indicate whether such duties will be either in an executive or managerial capacity. Id. 
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis after the petitioner's first year in 
operation. For example, the petitioner states that the beneficiary will develop organizational policies, 
programs, procedures, and objectives; coordinate operations and sales; and direct product promotions. 
However, the petitioner fails to specifically describe these policies, programs, procedures, and objectives, or 
to explain what, exactly, the beneficiary will do to direct and coordinate operations, sales, and promotions. 
Overall, the petitioner has provided so few details regarding its proposed swimwear 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 
1 
It must be noted that the AAO ultimately dismissed the petitioner's appeal pertaining to the director's denial 
of the previously filed petition (SRC 06 060 50983) and, importantly, determined beyond the decision of the 
director that the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year. An application or petition that fails to comply with the technical 
requirements of the law may be denied by the AAO even if the Service Center does not identify all of the 
grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 
1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 
(2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). Therefore, contrary to counsel's 
assertions, CIS has determined for all practical purposes that the previously filed petition failed to establish 
both that an investment was made in the United States operation by the foreign employer and that the 
petitioner will support an executive or managerial position within one year. 
EAC 07 055 5 1698 
Page 9 
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 seven additional employees during its first 
year in business, the petitioner has failed to establish that it will truly be able to hire these workers and, even 
if it could, that these workers will relieve the beneficiary of the need to primarily perform non-qualifying 
tasks. The petitioner's "business plan" vaguely describes the proposed United States operation as a swimwear 
business which will market, sell, and distribute the petitioning organization's products. However, the plan and 
associated financial projections are entirely unsupported by evidence. The record does not specifically 
describe the operation's marketing strategy and fails to identify any business relationships or potential 
customers other than a single letter of interest from Toka International, LLC, a purported swimwear 
distributor. The record does not contain any purchase orders or contracts, and the only evidence addressing 
its assets is a one-year-old letter indicating that the petitioner had, at that time, $20,000.00 in a bank account. 
Finally, the business plan does not clearly explain what, exactly, the petitioner will import and in what 
quantities, where the products will be stored, how the products will be transported, and to whom the petitioner 
will market the products in the United States. 
Accordingly, the petitioner's claim that its newly formed operation will hire seven or more workers who will 
relieve the beneficiary of the need to primarily perform non-qualifying tasks is not credible and is not 
supported by any evidence. Once again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190. Simply alleging that the petitioner will hire seven 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. at 604. 
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 an administrative assistant, a sales/operations manager, and a 
distribution manager. The sales/operations manager will, in turn, supervise the sales representatives, and the 
EAC 07 055 5 1698 
Page 10 
distribution manager will, in turn, supervise the delivery workers. However, the petitioner has failed to 
establish that either the salesloperations manager or the distribution manager will truly be a supervisory or 
managerial employee. To the contrary, the job descriptions describe these two proposed employees as 
performing the tasks necessary to the provision of a service or the production of a product, e.g., warehousing 
and sales related tasks. An employee will not be considered to be a supervisor simply because of a job title, 
because he or she is arbitrarily placed on an organizational chart in a position superior to another employee, 
or even because he or she supervises daily work activities and assignments. Rather, the employee must be 
shown to possess some significant degree of control or authority over the employment of subordinates. Given 
the size and nature of the vaguely described swimwear 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. U.S. Citizenship and Immigration Services, 469 F.3d 13 13 (9th 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 the employment of a subordinate tier 
of managers or supervisors who will ultimately be 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.2 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.~ 
2 
In evaluating whether the beneficiary will manage professional employees, the MO 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. fj 1 101(a)(32), states that "[tlhe term profession 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. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the MO 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 is 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 is actually necessary to perform the duties of the salesloperations 
manager. 
3 
On appeal, counsel argues in the alternative that the petitioner will manage an essential function of the 
organization. However, upon review, the record does not support this position. 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. 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. fj 214.2(1)(3)(ii). In 
EAC 07 055 5 1698 
Page 11 
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 rea~on.~ 
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)(2). In this matter, the petitioner claims to have received a $20,000.00 
investment and that these funds will be sufficient to carry the operation for four months. In support of this 
assertion, the petitioner submits a letter from Bank of America dated over one year prior to the filing of the 
petition indicating that, at that time, the petitioner had a bank account balance of $20,000.00. However, the 
record is not persuasive in establishing that the petitioner has received a sufficient investment to support the 
start-up of the new office. First, the record is devoid of evidence establishing that the petitioner presently has 
any assets. A letter from 13 months prior to the filing of the petition is not persuasive in establishing that the 
petitioner currently has these funds available. Once again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190. Absent evidence that the petitioner currently has funds 
available, it cannot be concluded that the enterprise will succeed and rapidly expand as it moves away from 
the developmental stage to full operations, where there would be an actual need for a manager or executive 
who will primarily perform qualifying duties. Second, even if the funds were available, it is not credible that 
$20,000.00 will be sufficient to establish the swimwear enterprise vaguely described in the petition. As noted 
above, the petitioner projects $1 11,000.00 in expenses and cost of goods for the first year. However, the 
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. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial after one year. Also, 
as explained above, the record establishes that the beneficiary will primarily be a first-line supervisor of non- 
professional employees andlor will perform non-qualifying operational or administrative tasks. Absent a 
clear and credible breakdown of the time spent by the beneficiary performing his duties, the AAO cannot 
determine what proportion of his duties will be managerial after one year, nor can it deduce whether the 
beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
4 
It is noted that counsel cites the unpublished opinion in Matter of Harrison Pacific Inc., WAC 92 192 5 11 84 
(AAO Feb. 16, 1994), in support of his contention that the beneficiary is primarily employed as a function 
manager. However, counsel's reliance on this decision is misplaced. First, counsel has furnished no evidence 
to establish that the facts of the instant petition are analogous to those in the unpublished decision. Second, 
while 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. Third, as explained above, the 
petitioner has not established that the beneficiary will primarily be employed in a managerial capacity after 
one year. This is paramount to the analysis, and a beneficiary may not be classified as a manager if he or she 
will not primarily perform managerial duties regardless of the number of people employed by the petitioning 
organization. Therefore, as the petitioner has not established this essential element, the decision in Matter of 
Harrison PaczJic Inc. would be irrelevant even if it were binding or analogous. 
EAC 07 055 5 1698 
Page 12 
record is devoid of any evidence that the petitioner will be able to generate any significant revenue after it 
begins doing business. The record does not contain any purchase orders, contracts, or other evidence that the 
petitioner will generate revenues to both meet its basic expenses and to begin growing. 
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. fj 214.2(1)(3)(v)(C)(I). As explained above, the petitioner 
vaguely describes the United States operation as a swimwear business which will market and sell the 
petitioning organization's clothing products. However, the plan and associated financial projections are 
entirely unsupported by evidence. The record does not specifically describe the operation's marketing 
strategy, and the petitioner fails to submit evidence of having established any business relationships or 
identified any potential customers other than submitting a single letter of interest. It is unclear what, exactly, 
the petitioner will import and in what quantities, where the products will be stored, how the products will be 
transported, and to whom the petitioner will market the products in the United States. The record does not 
contain any independent analysis, contracts, or list of business contacts. Absent a detailed, credible 
description of the petitioner's proposed United States business operation specifically addressing the 
petitioner's proposed products, marketing plan, and customers, it is impossible to conclude that the proposed 
enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, 
where there would be an actual need for a manager or executive who will primarily perform qualifying duties. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. fj 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
Beyond the decision of the director, the petitioner has failed to establish that it has secured sufficient physical 
premises to house the new office. 8 C.F.R. 214.2(1)(3)(v)(A). 
In support of its petition, the petitioner submitted a copy of a documented titled "Lease Agreement" which 
indicates that the petitioner has leased 380 square feet of space at 6955 N.W. 77~ Ave., Miami, Florida, for 
the purpose of "importation of apparel." However, the petitioner describes its proposed United States 
operation as importing and selling swimwear, and indicates in the proposed job description for the 
"distribution manager" that this employee will devote much of his time to directing and coordinating the 
"distribution warehouse." The record is devoid of evidence establishing that the petitioner has secured 
warehouse space or that the 380 square feet already secured will sufficiently house both the administrative 
and warehousing functions of the enterprise. Once again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190. 
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. 
EAC 07 055 5 1698 
Page 13 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been 
employed in a primarily managerial or executive capacity with the foreign entity for one year within the 
preceding three years. 8 C.F.R. 4s 214.2(1)(3)(iii) and 214.2(1)(3)(v)(B). 
In support of the petition, counsel described the beneficiary's duties abroad in the letter dated December 15, 
2006, as follows: 
As the Financial Manager abroad, the Beneficiary serves in an executive capacity. He clearly 
meets the above criteria in that he directs the financial component of the organization as a 
whole. He exercises wide latitude of discretionary decision making authority, managing and 
developing the financial goals and objectives for the company. Finally, he functions at a 
senior level reporting directly to the Board of Directors. Generally, as Financial Manager, 
[the beneficiary] is imbued with power to make decisions regarding policy, budgets, 
personnel, and other matters of importance. 
The petitioner also submitted an organizational chart for the foreign employer. 
 The chart portrays the 
beneficiary as supervising an "administrator" and a "sales" worker. 
Upon review, 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. Specifics are clearly an important indication of whether a beneficiary's 
duties were primarily executive or managerial in nature; otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. 
Furthermore, the petitioner failed to describe the duties of the beneficiary's two 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. Finally, given that the beneficiary appears to have supervised 
a single sales worker and a single administrative employee, it is more likely than not that the beneficiary was, 
at most, a first-line supervisor of non-professional workers. As noted above, 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 not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. § 2 14.2(1)(3)(vii). 
EAC 07 055 5 1698 
Page 14 
In this matter, the petitioner claims that it is primarily owned and controlled by the foreign employer which is 
partly owned by the beneficiary. As a purported owner of the petitioning organization, the petitioner is 
obligated to establish that the beneficiary's services will be used for a temporary period and that he will be 
transferred to an assignment abroad upon completion of the assignment. Id. However, the record is devoid of 
any evidence establishing that the beneficiary's services will be used temporarily. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
As noted above, 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 at 1043, afd, 345 F.3d 683; see 
also Dor v. INS, 891 F.2d at 1002 n. 9 (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. 
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. 9 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.