dismissed L-1A Case: Bee Industry

U.S. Department of Homeland Security 
U.S. Citizenship & Immigration Services 
Of$ce of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
File: EAC 07 098 50455 Office: VERMONT SERVICE CENTER Date: 
 JUL 2 3 2009 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
cting Chief, Administrative Appeals Office 
EAC 07 098 50455 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition and the 
Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal in a decision dated 
October 29, 2008. The matter is now before the AAO on a motion to reconsider. The AAO will grant the 
petitioner's motion and affirm its previous decision. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. tj 1101(a)(15)(L). The petitioner, a California corporation, states that it intends to engage in the "bee 
industry." The petitioner claims to be a subsidiary of Po Sang Yuen Bee Farm (HK) Ltd., located in Hong 
Kong. The petitioner seeks to employ the beneficiary as the sales manager of its new office in the United 
States. 
The director denied the petition concluding that the petitioner failed to establish: (1) that the beneficiary has 
been employed by the foreign entity in a primarily managerial or executive capacity; and (2) that the 
beneficiary would be employed by the U.S. company in a primarily managerial or executive capacity within 
one year. 
The AAO dismissed the petitioner's subsequent appeal and found that the director had correctly denied the 
petition on both grounds stated above. The AAO found that the petitioner had not adequately described the 
beneficiary's duties while employed by the foreign entity, the staffing structure of the foreign entity, the 
beneficiary's proposed duties in the United States, or the petitioner's anticipated organizational structure 
within one year of commencing operations. Based on these deficiencies, the AAO concluded that the 
petitioner had not established that the beneficiary has been or would be employed in a primarily managerial or 
executive capacity. 
On motion, counsel for the petitioner asserts that the AAO erroneously ignored evidence submitted on appeal, 
and in doing so, improperly relied on two Board of Immigration Appeals (BIA) decisions, Matter of Soriano, 
19 I&N Dec. 764 (BIA 1988) and Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Counsel emphasizes 
that the AAO, unlike the BIA, reviews all cases de novo, is not restricted to the original record, and has 
"typically" accepted and considered new documents or other evidence submitted by appellants. Counsel 
asserts that since the AA0"s standards for accepting or refusing evidence are not published in any statutes or 
regulations, the appellant did not have fair notice of this "change in procedure." Counsel contends that the 
excluded evidence in question "goes to the core of the AAO dismissal." 
Counsel's second argument relates to the AAO's determination that the petitioner did not establish that the 
beneficiary would be employed in a primarily managerial or executive capacity within one year. Counsel 
asserts that the AAO ignored the evidence submitted and improperly relied upon a case involving an alien 
entrepreneur in determining what constitutes an appropriate business plan. Counsel further objects to the 
AAO's statement that the regulations "'contemplate' a certain kind of evidence." Counsel contends that 
"basing a decision on something as vague as what the reviewing officer thinks a regulation 'contemplates' is 
merely an abuse of discretion and a violation of the appellant's right to due process." 
The regulation at 8 C.F.R. tj 103.5(a)(3) states: 
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A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or [U.S. Citizenship and Immigration Services (USCIS)] policy. A motion 
to reconsider a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. 
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. 3 214.2(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. 
The regulation at 8 C.F.R. $ 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
EAC 07 098 50455 
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(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The first issue raised by counsel on motion is whether the AAO improperly excluded evidence submitted on 
appeal with respect to the beneficiary's job duties with the foreign entity. In dismissing the appeal, the AAO 
noted that the petitioner's description of the beneficiary's position, based on the record of proceeding before the 
director, consisted of only two sentences. The AAO noted that such description offered no insight into what 
specific duties he performed on a day-to-day basis in his position as sales manager. The AAO also emphasized 
that the director, in a request for evidence issued on April 30, 2007, had requested the petitioner to provide a 
"complete position description for all of the foreign entity's employees." The AAO noted that the director had 
further requested information regarding how much of the beneficiary's time is allotted to managerial or 
executive duties versus non-managerial duties, and information regarding the degree of discretionary 
authority the beneficiary has over day-to-day operations in his foreign position. The AAO found that, given 
these specific requests, the petitioner's reply that the beneficiary is responsible for "all the contracting and 
market development, promotion works," was not responsive to the director's inquiries. Any failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
5 103.2(b)(14). 
The AAO acknowledged that the petitioner submitted a somewhat lengthier description of the beneficiary's 
duties on appeal. The AAO emphasized that the petitioner had been put on notice of required evidence and 
given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. Citing to 
Matter of Soriano, 19 I&N Dec. 764 (BIA 1988) and Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988), 
the AAO declined to consider the evidence submitted for the first time on appeal, and adjudicated the petition 
based on the record of proceeding before the director. 
On motion, counsel for the petitioner asserts that the AAO had no authority to rely on the cited BIA precedent 
decisions, and that such decision are only relevant to the BIA. 
The AAO notes that such authority is set forth in the regulations at 8 C.F.R. 5 1003.l(g), which states, in 
relevant part: 
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Decisions as precedents. Except as Board decisions may be modified or overruled by the 
Board or the Attorney General, decisions of the Board, and decisions of the Attorney General, 
shall be binding on all officers and employees of the Department of Homeland Security or 
immigration judges in the administration of the immigration laws of the United States. 
Neither Matter of Soriano nor Matter of Obaigbena have been modified or overruled, and thus they remain 
binding on AAO personnel as employees of the Department of Homeland Security. 
Counsel further argues that "the AAO reviews all cases de novo and is not restricted to the original record." 
Counsel states that "in the past, the AAO typically accepted and considered new documents or other evidence 
submitted by appellants." 
As correctly noted by counsel, the AAO maintains plenary power to review each appeal on a de novo basis. 5 
U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. 
US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been 
long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
Notwithstanding its de novo authority, the AAO is not required to take into account any and all evidence 
submitted by a petitioner on appeal, without exception. The evidence the AAO excluded in this matter was 
required initial evidence pertaining to the beneficiary's managerial or executive job duties that was not 
submitted at the time of filing. The director allowed the petitioner 12 weeks to submit the requested evidence, 
and the petitioner once again failed to provide a description of the beneficiary's job duties. 
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). If the petitioner had wanted the submitted evidence to be considered, it should have submitted it 
in response to the director's request for evidence. Id. 
The AAO notes that, had the director not issued an RFE allowing the petitioner an opportunity to submit 
additional evidence pertaining to the beneficiary's foreign job duties, the AAO would have accepted the job 
description submitted on appeal and considered the evidence in making its decision. Contrary to counsel's 
assertions, the AAO does not "typically" accept evidence submitted for the first time on appeal under the 
circumstances that were present in this matter. Instead, the AAO follows the precedent decisions governing 
the submission of previously requested evidence on appeal. 
The AAO notes that the only issue raised on motion is the AAO's reliance on Matter of Soriano and Matter of 
Obaigbena in declining to consider the job description submitted on appeal. However, in addition to finding 
the beneficiary's job description insufficient, the AAO also dismissed the appeal based on the petitioner's 
failure to demonstrate that the beneficiary supervises a subordinate staff of supervisors, managers or 
professionals, or manages an "essential function," within the foreign organization. The AAO noted that the 
petitioner had identified only one subordinate employee within the beneficiary's department, did not submit 
EAC 07 098 50455 
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the requested description of this employee's duties, and otherwise failed to demonstrate that the beneficiary is 
relieved from performing the day-to-day non-managerial duties associated with the foreign entity's sales and 
promotion functions. 
Based on the foregoing discussion, the petitioner has not submitted evidence or arguments sufficient to 
overcome the AAO's prior determination, and has not established that the beneficiary has been employed by 
the foreign entity in a primarily managerial or executive capacity. Accordingly, the AAO's previous decision 
will be affirmed. 
The second ground for denial of the petition and dismissal of the petitioner's appeal was the petitioner's failure 
to establish that the U.S. company would employ the beneficiary in a primarily managerial or executive 
capacity within one year, as required by 8 C.F.R. 5 214.2(1)(3)(v)(C). 
The AAO began its discussion of this issue with a general discussion of the regulatory requirements for the 
opening of a new office, noting that the petitioner's evidence and business plan should demonstrate a realistic 
expectation that the new U.S. 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. Included in this discussion was an excerpt from a precedent 
decision relating to the regulatory requirements for the alien entrepreneur immigrant visa classification, 
Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm. 1998). The AAO noted that the decision is instructive in the 
instant matter because it discusses the "the contents of an acceptable business plan." 
However, the AAO ultimately denied the petition based on the petitioner's failure to submit a detailed 
description of the beneficiary's proposed duties, or the proposed organizational structure of the U.S. company 
after the first year of operations. 
On motion, counsel contests the AAO's reference to Matter of Ho, noting that the case law is not directly 
relevant to the matter under review. Counsel also objects to the following statement that appears in the 
AAO's decision: "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." Counsel asserts that 
such statement amounts to the personal opinion of the reviewing officer. Counsel asserts that the AAO 
concluded that the petitioner's evidence does not contain the features of an acceptable business plan according 
to Matter of Ho. Finally, counsel contends that the AAO failed to consider the actual evidence submitted and 
whether it meets the regulatory requirements for a new office petition. 
Counsel's assertions are not persuasive. First, the AAO notes that the "as contemplated by the regulations" 
language to which counsel objects was derived directly from Matter of Ho, and does not represent the 
personal opinion of the reviewing AAO appeals officer. See 22 I&N Dec. at 213 (stating "A comprehensive 
business plan as contemplated by the regulations should contain, at a minimum, a description of the business, 
its products andlor services, and its objectives.") A reveal of the record shows that the AAO properly 
attributed this language to Matter of Ho in its decision. 
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Second, the AAO did not deny the petition based on the petitioner's failure to meet the Matter of Ho standard 
with respect to what constitutes an acceptable business plan. Rather, the AAO included the excerpt from 
Matter of Ho in its decision because it finds the discussion of business plans contained in that decision 
instructive. L-1 petitioners are not required to adhere to such standard, but petitioners may find the discussion 
contained in Matter of Ho useful when preparing to file a new office petition. 
Rather, contrary to counsel's assertions, the AAO denied the petition because the petitioner did not adequately 
describe the beneficiary's proposed duties in the United States, as required by 8 C.F.R. 5 214.2(1)(3)(ii), nor 
did it submit sufficient evidence of the proposed organizational structure of the U.S. company after the first 
year of operations, as required by 8 C.F.R. 5 214.2(1)(3)(v)(C)(I). 
In denying the petition, the AAO acknowledged the petitioner's voluminous response to the director's request 
for additional evidence, but emphasized that the petitioner failed to provide any additional information to 
elaborate upon the beneficiary's actual duties in the United States, and provided only broad and vague 
statements regarding his general areas of responsibility. 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 failed to provide any detail or explanation of the beneficiary's 
proposed 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. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afyd, 905 F.2d 
41 (2d. Cir. 1990). Counsel has not challenged this conclusion on motion or provided evidence to overcome 
the AAO's conclusion. The brief position descriptions contained in the record as presently constituted fall 
significantly short of establishing that the beneficiary's primary duties in the U.S. company would be 
managerial or executive in nature within one year. 
In addition to finding the beneficiary's U.S. job description deficient, the AAO found that the evidence 
submitted did not establish that the beneficiary would be, after the first year, relieved of the need to perform 
the non-qualifying tasks inherent to his responsibilities and to the operation of the business in general. The 
AAO emphasized that the petitioner failed to specifically describe its staffing plan, and the brief business plan 
submitted contains no indication as to how many and what types of staff would be hired during the first year 
of operations. In addition, although the petitioner claimed in response to the request for evidence that four 
employees had already been hired, the AAO noted that the petitioner provided no documentary 'evidence of 
payments to the claimed employees, and on appeal, seemed to indicate that employees have not yet been 
hired. The AAO concluded that since the record contained insufficient explanation as to what duties the 
beneficiary and his subordinate staff will perform after the petitioner's first year in operation, it could not be 
determined that he will be "primarily" employed as a manager or executive within one year. 
The AAO emphasizes that the regulations governing new office petitions require the petitioner to submit 
evidence regarding the proposed nature of the office describing the scope of the entity, its organizational 
structure, and its financial goals. 8 C.F.R. 5 214.2(1)(3)(v)(C)(I). The petitioner's evidence with respect to its 
proposed organizational structure consisted of little more than unsupported statements. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofzci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Cra8 of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Again, counsel does not address these substantive issues 
EAC 07 098 50455 
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on motion and instead contends that the AAO ignored evidence and improperly relied on Matter of Ho in 
dismissing the appeal. 
Upon review, the AAO finds that its prior decision was properly based on the petitioner's failure to satisfjl the 
regulatory requirements pertaining to new office petitions. Counsel has not indicated what specific evidence 
was ignored, and, upon careful review of the record, the AAO cannot find that it overlooked a detailed 
description of the beneficiary's proposed duties or relevant evidence pertaining to the petitioner's proposed 
staffing levels that was not addressed in its prior decision. Accordingly, the petitioner has not overcome the 
grounds for denial and the AAO's prior decision will be affirmed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
previous decision of the AAO will be affirmed and the petition will be denied. 
ORDER: 
 The AAO's decision dated October 28, 2008 is affirmed.