dismissed L-1A Case: Bee Industry

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 07 098 50455 Office: VERMONT SERVICE CENTER Date: 2 9 2008 
Petition: 
 Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
Administrative Appeals Office 
EAC 07 098 50455 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(lS)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. !j 1 10 1 (a)(lS)(L). The petitioner, a California corporation, states that it intends to engage in the "bee 
industry." The petitioner claims to be a subsidiary of -I., 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 did not establish: (1) that the beneficiary has 
been employed by the foreign entity in a primarily managerial or executive capacity; or (2) that the 
beneficiary would be employed by the U.S. company in a primarily managerial or executive capacity 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 submitted 
sufficient evidence to establish that the beneficiary has been and will be employed in a managerial or 
executive capacity. Counsel contends that the director failed to correctly evaluate the petitioner as a new 
office, and overlooked extensive documentation submitted in response to a request for evidence. Counsel 
submits a brief and additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(lS)(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. h 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. 
EAC 07 098 50455 
Page 3 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perfonn 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. 5 214.2(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 
(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: 
(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 matter is whether the petitioner established that the beneficiary has been employed by the 
foreign entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 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; 
EAC 07 098 50455 
Page 4 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with .respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
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. $ 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 petitioner filed the nonimmigrant petition on February 22, 2007. In a letter dated February 21, 2007, the 
petitioner stated that the beneficiary has been employed by the foreign entity as sales manager since 1990, and 
that he is "responsible for development, planning, organization and marketing of the sales department." The 
petitioner submitted an organizational chart for the foreign entity on which the beneficiary was identified as "sales 
and marketing executive," reporting to the company's managing director. The chart depicts a "sales and 
promotions supervisor" position which appears to be subordinate to the beneficiary's position. No other sales or 
marketing employees appear on the chart. 
The director found the initial evidence insufficient to establish that the beneficiary has been employed by the 
foreign entity in a primarily managerial or executive capacity. Accordingly, on April 30,2007, the director issued 
a request for evidence WE), in which he requested, inter alia, additional evidence regarding the management 
and personnel structure of the foreign entity. The director instructed the petitioner to indicate how many 
subordinate supervisors the beneficiary manages, the job titles and job duties of all employees under his 
supervision, the amount of time the beneficiary allocates to managerial or executive duties, and the degree of 
discretionary authority he exercises over the day-to-day operations of the foreign entity. The director also 
requested an organizational chart for the foreign entity and complete position descriptions for all of the foreign 
entity's employees. 
EAC 07 098 50455 
Page 5 
In a response received on July 18, 2007, the petitioner submitted an organizational chart for the foreign entity, 
which shows that the beneficiary supervises an "assistant sales and promotion officer." The chart does not clearly 
show that any employees report to the beneficiary's subordinate. The petitioner also submitted a personnel list for 
the foreign entity, which included very brief descriptions of each employee's duties. The petitioner indicated that 
the beneficiary is responsible for "all the contracting and market development, promotion works," while the 
assistant sale and promotion officer is responsible for assisting with "all the sales and promotion works." The 
personnel list, which includes a total of 23 positions, does not include any subordinate sales or marketing staff. 
The director denied the petition on January 30, 2008, concluding that the petitioner failed to establish that the 
beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. The director 
observed that the petitioner failed to submit evidence addressing the beneficiary's position with the foreign entity, 
and had failed to provide a sufficient description of duties performed by the beneficiary's subordinate staff. The 
director found that without such evidence, it could not be determined that the beneficiary has been supervising 
subordinate managers, professionals or supervisors. 
On appeal, counsel asserts that the director's finding is erroneous and is contradicted by the documentation 
submitted in response to the RFE. In support of the appeal, the petitioner submits a letter from the foreign entity 
with the following information regarding the beneficiary's duties: 
[The beneficiary] has been the sales and marketing executive since [1990]. In this position [the 
beneficiary] has been generally responsible for the development of the distribution network for 
our products in Hong Kong and China, as well as the initial development of the U.S. market. 
[The beneficiary] has had the primary responsibilities to develop marketing plans and oversee 
implementation by the sales and promotion staff and employees. He has done this by working 
with the dales and promotion supervisor. [The beneficiary] is also directly involved with clients 
when necessary to resolve major problems or meet critical customer needs. [The beneficiary] 
also monitors the performance of packaging and shipping activities on a daily basis through the 
supervisor of that sub-department. 
Our business is based on the continuing satisfaction of our customers in a very competitive 
industry. It is necessary to be aware of customer trends, pricing issues, product innovation 
developments, and similar factors on a daily basis. [The beneficiary] is responsible for 
developing and overseeing the implementation of a system to collect necessary information and 
be responsive to customers. He accomplishes this by monitoring the activities of department 
heads and interacting with operational employees to make sure that they are also aware of their 
responsibilities. 
Upon review, the petitioner has not established that the beneficiary has been employed by the foreign entity in 
a primarily 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. Cj 214.2(1)(3)(ii). The petitioner's description of the job 
EAC 07 098 50455 
Page 6 
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. 
The petitioner has failed to provide a description of the beneficiary's duties sufficient to establish that he was 
employed by the foreign entity in a primarily managerial or executive capacity. The job descriptions 
submitted by the petitioner prior to the adjudication of the petition consisted of two sentences. Specifically, 
the petitioner stated that the beneficiary is "responsible for development, planning, organization and marketing 
of the sales department," and that he is responsible for "all the contracting and market development, promotion 
works." Contrary to counsel's assertions otherwise, these general statements are not sufficient to establish that 
the beneficiary has been employed in a primarily managerial or executive position, as they offer no insight into 
what the actual tasks he performs with respect to the foreign entity's sales, marketing and promotion activities. 
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. Sava, 724 F. Supp. 
1103,1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Furthermore, the director specifically requested that the petitioner provide a "complete position description 
for all of the foreign entity's employees," which reasonably would include a complete position description for 
the beneficiary. In addition, the director 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. Given 
these specific requests, the petitioner's response 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. 
$ 103.2(b)(14). 
The petitioner now submits a lengthier description of the beneficiary's duties on appeal. However, the 
petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the 
record before the visa petition was adjudicated. The petitioner failed to submit the requested evidence and 
now submits it on appeal. However, the AAO will not consider this evidence for any purpose. See Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will 
be adjudicated based on the record of proceeding before the director. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 4 1101(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
lOl(a)(44)(A)(iv) of the Act; 8 C.F.R. 4 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. $ 214.2(1)(1)(ii)(B)(3). 
EAC 07 098 50455 
Page 7 
As noted above, based on the organizational charts submitted by the petitioner, it appears that the beneficiary 
has one direct subordinate. This position was identified as "Sales and Promotion Supervisor" on the initial 
organizational chart, and as "Assistant Sales and Promotions Officer" on the subsequent organizational chart 
and employee list. Although requested to provide specific information regarding the number of subordinate 
managers and supervisors the beneficiary supervises and detailed descriptions of their duties, the petitioner 
provided the following job description for the beneficiary's subordinate: "Assistant all the sale and promotion 
works." The petitioner has not established that this position requires a bachelor's degree, such that the 
beneficiary's subordinate could be classified as a professional.' Nor has the petitioner shown that this the 
assistant sales and promotions officer supervises subordinate staff members or manage a clearly defined 
department or function of the petitioner, such that she could be classified as a manager or supervisor. The 
personnel list submitted for the foreign entity does not include any sales employees other than the beneficiary 
and his subordinate. Thus, the petitioner has not shown that the beneficiary supervises a subordinate staff of 
supervisors, managers, or professionals, as required by section 101(a)(44)(A)(ii) of the Act. Moreover, the 
petitioner has not stated that the beneficiary has the authority to hire or fire employees, or to recommend these 
personnel actions. See section 101(a)(44)(A)(iii) of the Act. 
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 hction" within the 
organization. See section 101 (a)(44)(A)(ii) of the Act, 8 U.S.C. § 1 10 1 (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 detailed description of the duties 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. 5 214.2(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. 
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). It is the petitioner's 
obligation to establish that the day-to-day non-managerial tasks of the function managed are performed by 
someone other than the beneficiary. 
1 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 4 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 (Comrn. 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 AAO must focus on the level of education 
required by the position, rather than the degree held by subordinate employee. 
EAC 07 098 50455 
Page 8 
In this matter, the petitioner has not submitted a description of the beneficiary's duties sufficient to establish 
what duties he performs on a day-to-day basis, and therefore it is impossible to conclude that he primarily 
performs duties related to the management of a function. In addition, based on the lack of evidence in the 
record regarding the foreign entity's staffmg levels in general, it is not clear that there is anyone to perform 
the day-to-day duties of the sales function, other than the beneficiary and one assistant sales and promotion 
officer. Accordingly, the petitioner has not established that the foreign entity employs the beneficiary as a 
qualifying function manager. 
Overall, based on the limited evidence in the record, it cannot be concluded that the beneficiary has been 
performing primarily managerial or executive duties for the foreign entity. Accordingly, the appeal will be 
dismissed. 
The second issue in this matter is whether the petitioner established that the U.S. company will employ the 
beneficiary in a primarily managerial or executive capacity within one year of commencing operations. 
Tn its letter dated February 21, 2007, the petitioner stated that the beneficiary will serve as sales manager of 
the new office, and that he will be "responsible for warehousing, distribution, marketing and sales." The 
petitioner further stated that the beneficiary will work with the company's board of directors to establish 
corporate goals and policies. The petitioner indicated on Form 1-129, Petition for Nonirnrnigrant Worker, that 
the U.S. company has three employees and anticipates gross annual income of $250,000. The petitioner did 
not submit a business plan or other information regarding the anticipated size, nature and scope of the 
organization, nor did it submit evidence of the size of the U.S. investment, as required by 8 C.F.R. $8 
2 14.2(1)(3)(v)(C)(I) and (2). 
In the request for evidence issued on April 30, 2007, the director requested, inter alia, the following: (1) a 
clear description of the type of business to be conducted in the United States, including information regarding 
any U.S. clients and the products or services to be sold: (2) a copy of the petitioner's business plan, giving 
specific dates for each proposed action for the next two years; (3) evidence to establish the size of the United 
States investment and the financial ability of the foreign entity to commence doing business in the United 
States: (4) evidence to establish the financial status of the U.S. organization; and (5) evidence to establish 
how the new company will grow to be of sufficient size to support a managerial or executive position. 
In response, the petitioner submitted a document titled "Responsibility and Duty of Job" which states that the 
beneficiary will serve as "Executive Director" and perform the following duties: 
Establish our "Brand-name" products in foreign countries; 
Office Set-Up; 
Seeking an Executive Distributor for both "Brand-Name" label products; 
Distributions and Sales; 
Promotions; 
New private Label Development; 
Honey Resources; 
Manufacturing; 
EAC 07 098 50455 
Page 9 
9. Importation and Exportation. 
The petitioner also submitted an organizational chart for the U.S. entity indicating that the beneficiary will 
supervise the followin employees: marketing expert; assistant; - 
bookkeeper; and d, accountant. The organizational chart also identifies two exclusive distributors. The 
petitioner attached an employee list which provided the following information for each position: 
Executive Director - All authorities for any kinds of business transaction and day to day 
managerial operations. 
Marketing Expert - arrangement for all kind of promotion event and marketing activity 
Accountant - all kinds of accounting and tax taxation works 
Bookkeeper - preparation works for all kinds of invoice and billing 
Assistant - day to day operation works 
The petitioner stated that the primary purpose of the U.S. organization would be to seek exclusive distributors 
for the foreign entity's traditional label; laboratory analysis and testing for importation of honey products; 
distribution and sales; promotion; private label development; development of relationships with local bee 
keepers; establishing a production line and packing system; and exportation of honey products. 
The petitioner indicated that it already as an exclusive U.S. distributor for its "traditional label" honey 
products since 2006. The petitioner also submitted a business plan briefly outlining its proposed actions for 
2007 and 2008. Finally, the petitioner outlined the capital investment required to hd the U.S. entity, and 
submitted evidence that the company has $150,000 in its bank accounts. The petitioner also submitted 
documentary evidence to establish that it has begun importing "traditional label" products fiom Hong Kong, 
developing its private label, and distributing products to retailers in the United States through its exclusive 
distributor. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity within one year of the petition approval. The 
director observed that the petitioner had not adequately described the duties to be performed by the 
beneficiary or the subordinates within the context of the petitioner's business, and therefore it was not 
possible to conclude that the beneficiary would be relieved from performing the non-qualifymg duties of the 
business within one year. 
On appeal, counsel asserts that the director incorrectly stated that the petitioner did not submit a sufficient 
description of the beneficiary's duties or evidence to establish how the petitioner would grow to be of a sufficient 
size to support a managerial or executive position within one year of approval. Counsel contends that the director 
failed to acknowledge the substantial evidence submitted in response to the RFE and apparently failed to consider 
such evidence. Counsel mer asserts that the evidence shows that the petitioner "has a reasonable plan" for 
meeting the regulatory requirements. 
In addition, counsel asserts that the director "confuses the petitioner's burden of proof which is to establish ability 
to support an executive or managerial position in one year, not to show that the beneficiary is currently 
EAC 07 098 50455 
Page 10 
hctioning as a manager directing an in-place staff of supervisory or professional personnel." Counsel contends 
that the evidence already submitted demonstrates that the company "will have the necessary level of supervisory 
personnel within one year. 
In support of the appeal, the petitioner submits a letter dated February 27, 2008 in which it firrther describes the 
beneficiary's proposed role as follows: 
[The beneficiary] has identified and begun negotiations with distribution outlets in the Southern 
and Northern California regions, health food distributors, ethic [sic] supermarket chains and the 
like. He has been lining-up distribution points for future sales when our operation is set-up. He 
has also been negotiating with local beekeepers to establish supply sources. 
While developing sales and supply sources, [the beneficiary] has also been locating the 
administrative office and the production and distribution facility. As part of this activity, he has 
been locating necessary equipment for bottling, labeling, and packaging and trained and 
experienced operations employees. 
Once operations reach a normal level, and revenue approaches expected levels [the beneficiary] 
will hire permanent employees and the operation will assume the same organizational structure 
as the parent company, with [the beneficiary] assuming the same types of duties as he had with 
the parent company. It is planned that [the beneficiary] will have several managers working at 
his direction as in the parent company with operational employees at a lower level. It is 
expected, as indicated in the documents previously submitted to you, that this will occur 
sometime this summer. 
Upon review, the petitioner's assertions and additional evidence are not persuasive in establishing that the 
beneficiary will be employed in a primarily managerial or executive capacity within one year. 
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. 8 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away fi-om the developmental stage to MI operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. The petitioner must also establish that 
the beneficiary will have managerial or executive authority over the new operation. See 8 C.F.R. 8 
2 14.2(1)(3)(v)(B). 
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 07 098 50455 
Page 11 
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 market/prospective 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. 
While the petitioner has submitted evidence to establish the size of the U.S. investment and demonstrated that 
the beneficiary is already taking undertaking efforts to commence operations in the United States, the director 
correctly concluded that the petitioner did not adequately describe the beneficiary's proposed duties, or the 
proposed organizational structure of the U.S. company after the first year of operations. 
First, the petitioner has failed to 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. 5 214.2(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 one year in operation. For 
example, the petitioner initially stated that the beneficiary will "be responsible for warehousing, distribution, 
marketing and sales," and "establish corporate goals and policies." Essentially, the petitioner simply stated 
that the beneficiary would be "responsible for" the company's major fimctions, without indicating what 
specific managerial or executive duties he would perform. Specifics are clearly an important indication of 
whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
While the AAO acknowledges the petitioner's voluminous response to the director's request for additional 
evidence, the petitioner offered no additional information to elaborate upon the beneficiary's actual duties in 
EAC 07 098 50455 
Page 12 
the United States. Rather, the list of duties and responsibilities provided is almost identical to the petitioner's 
description of the nature and purpose of the U.S. office in general and includes such duties as "distributions 
and sales," "promotions," "honey resources," "manufacturing," and "importation and exportation." Based on 
the petitioner's business plan, the company does not anticipate undertaking its production-line and packing 
operations until November 2008 or later, while import and export activities are expected commence in 2009, 
so it cannot be found that the beneficiary would be responsible for managing these activities within one year. 
The only other description of the beneficiary's duties included in the petitioner's response was that he will 
have authority for "any kinds of business transaction and day to day managerial operations." 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 proposed activities in the course of his daily routine. Again, the 
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v, Suva, 724 F. 
at 1 108. 
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 bctions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). While it appears that the beneficiary would exercise the requisite 
authority over the U.S. company as its senior employee, the brief position descriptions provided fall 
significantly short of establishing that the beneficiary's primary duties would be managerial or executive in 
nature. 
On appeal, the petitioner states that, once the company begins operating at a normal level, the beneficiary will 
assume "the same types of duties as he had with the parent company," with "several managers working under 
his direction." This assertion is not persuasive. As discussed, infra, the petitioner has not provided a detailed 
description of the beneficiary's duties with the foreign entity and therefore has not established that he was 
employed in a primarily managerial or executive capacity. Furthermore, the petitioner has not, in fact, 
established that the beneficiary supervised "several managers" while employed by the foreign entity. Finally, 
the petitioner indicated that the business would assume "normal" operations and employ the requisite staff by 
the summer of 2008; however, the record does not contain a hiring plan to corroborate this statement. 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, 1 4 I&N Dec. 1 90 (Reg. Cornm. 1 972)). 
Likewise, the record is not persuasive in establishing that the beneficiary will be, after the first year, relieved 
of the need to perform the non-qualifying tasks inherent to his duties and to the operation of the business in 
general. 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. At the time the petition was filed, the petitioner claimed to employ three staff. In response to the 
request for evidence, the petitioner claimed to employ a marketing expert, an accountant, a bookkeeper and an 
assistant. On appeal, the petitioner simply states that the beneficiary "will hire permanent employees and the 
operation will assume the same organizational structure as the parent company," and that such structure 
EAC 07 098 50455 
Page 13 
would be in place by the summer of 2008. However, the petitioner has still not adequately outlined the 
proposed structure of the U.S. entity as of one year from the date the petition was filed, nor has it sufficiently 
indicated when employees will be hired or the duties to be performed. In addition, although the petitioner 
claimed in response to the request for evidence that four employees had already been hired, it offered no 
documentary evidence of payments to the claimed employees, and on appeal, seems to indicate that 
employees have not yet been hired. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. at 
165. 
As the petitioner fails to explain what tasks the beneficiary and his subordinate staff will perform after the 
petitioner's first year in operation or to explain how much time the beneficiary will devote to performing non- 
qualifying tasks, it cannot be confirmed that he will be "primarily" employed as a manager or executive 
within one year. Accordingly, the appeal will be dismissed. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.