dismissed L-1A Case: Beverage Distribution And Restaurants

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US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
b7 
File: EAC 08 250 51627 Office: VERMONT SERVICE CENTER Date: NOV 0 3 ZDvL 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
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. 8 103.5 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, as required by 8 C.F.R. § 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
EAC 08 250 5 1627 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its executive director as 
an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. fj 1101(a)(15)(L). The petitioner, a Delaware corporation, states that it is 
engaged in the import and distribution of alcoholic beverages and intends to operate two restaurants. The 
petitioner states that it is the subsidiary of Kazumoff, LLC, located in Yerevan, Armenia. The beneficiary 
was initially granted a one-year period in L-1A classification in order to open a new office in the United 
States, and was subsequently granted a one-year extension of status. The petitioner now seeks to extend the 
beneficiary's status for three additional years. 
The director denied the petition on November 20, 2008, concluding that the petitioner had failed to establish 
that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner states that it believes that the petition 
and supporting documentation were "complicated and wrongly evaluated because of inappropriate 
representation of our company information by our legal representatives." The petitioner submits additional 
evidence related to the beneficiary's job duties and provides evidence pertaining to employees hired in 
October and November 2008. The petitioner also submits a letter from its accountant, who confirms that the 
U.S. company had no employees prior to October 2008, and that, from its establishment in 2005 and until 
October 2008, the company was "in the process of investing and accumulating funds to start its business 
operations." 
Upon review and for the reasons discussed herein, the petitioner's assertions are not persuasive. It is noted that 
the beneficiary in this matter has previously been granted two one-year periods in L-1 classification in order 
to establish the new office in the United States. The L-1 visa classification is not an entrepreneurial visa or 
intended for nonfunctional start-up companies. The regulation at 8 C.F.R. fj 214.2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of a new office petition to support an 
executive or managerial position. The only provision that allows for the extension of a "new office" visa 
petition requires the petitioner to demonstrate that it is staffed and has been "doing business" in a regular, 
systematic, and continuous manner for the previous year. 8 C.F.R. fj 214.2(1)(14)(ii). Here, the petitioner was 
granted two years for its start-up activities. yet has failed to demonstrate that the U.S. company has expanded 
to the point where it could support the beneficiary in a primarily managerial or executive capacity. Further, 
the evidence submitted does not establish that the petitioner has been doing business as defined in the 
regulations. As the petitioner has failed to establish these essential elements of eligibility for the extension of 
its "new office" petition, the appeal will be dismissed. 
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 qualifLing 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 
EAC 08 250 51627 
Page 3 
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. fj 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 himlher 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. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-1 29, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) 
 ~vidence of the financial status of the United States operation. 
EAC 08 250 5 1627 
Page 4 
The first issue in this proceeding is whether the petitioner established that the beneficiary will be employed in 
a primarily managerial or executive capacity under the extended petition. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
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 nonimmigrant petition was filed on September 23, 2008. The AAO emphasizes that the petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved 
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Therefore, the AAO will consider evidence of the 
petitioner's eligibility as of this date. 
EAC 08 250 5 1627 
Page 5 
On the Form 1-129, Petition for a Nonimmigrant Worker, the petitioner stated that the beneficiary will 
continue to serve in the position of executive director. The petitioner did not indicate on Form 1-129 the 
company's current number of employees or the gross and net annual income of the U.S. company. 
In an attachment to Form 1-129, the petitioner stated that the beneficiary's duties have been and will be the 
following: 
[The beneficiary's] duties as Executive Director of [the petitioner] will continue to include 
general executive, managerial responsibilities as assigned by its Board of Directors, including 
the management and supervision of [the petitioner's] import and wholesale operations. 
His specific responsibilities will include arranging letters of credit and bills of lading for 
importing and distributing container shipments from Armenia, establishing lines of credit 
with domestic banks and other financial institutions, negotiating and managing import and 
distribution contracts worldwide, and strategic planning for the company's short-term and 
long-term operations. 
In September 2006, [the beneficiary] began to perform his duties in [the petitioner's] New 
York offices. There, he hired support staff for the principal office and recruited import agents, 
account representatives, accounting and bookkeeping contractors, and supervisors in the areas 
of sales, marketing, importing, warehousing, distribution and finance. 
He has also organized a branch office in Miami, where the company is establishing subsidiary 
operations for the operation of two theme restaurants, which feature company-imported 
products. 
In the coming twelve-month period, [the beneficiary] will organize [the petitioner's] regional 
offices on the West Coast (perhaps in Los Angeles). There he will also have the responsibility 
to locate office premises and to hire and train staff for sales, marketing and other areas of 
business operations. 
In support of the petition, the petitioner submitted a 57-page "Revised and Updated Business Plan." The 
petitioner stated that it continues to build its "primary business of negotiating the importation of Kazumoff 
premium vodka and wine directly from Armenia." The petitioner stated that imported alcoholic beverages are 
shipped directly to the company's East and West Coast distributors, but that the petitioner itself had recently 
obtained the proper permits and approvals to directly import and distribute the products. The petitioner stated 
that the company "has begun to expand its principal office staff to include a full complement of managerial 
and support staff, including employees in marketing, sales, finance and accounting." The petitioner indicated 
that its accomplishments as of September 2008 included importing nine containers of vodka products, hiring 
78 employees, and preparing to open two restaurants. 
The petitioner further stated that as of September 2008, it employs the executive director, "five other 
executives and senior managers," three chefs, 25 sous chefs and line cooks, one draftsman, three laborers and 
EAC 08 250 51627 
Page 6 
40 servers, bus staff and dishwashers. The petitioner indicated that it intends to hire additional managerial 
employees, office staff, warehouse staff and restaurant staff in the coming year, with over 100 employees 
expected. 
The petitioner submitted a copy of its balance sheet for the nine months ended on June 30, 2008, prepared by 
the company's accountant. The profit and loss statement indicates that the petitioner reported no income or 
expenses during the period. The petitioner also submitted a copy of its 2006 IRS Form 1120, U.S. 
Corporation Income Tax Return, for the fiscal year ended on September 30, 2007. The petitioner reported no 
income or deductions. 
On October 1, 2008, the director issued a request for additional evidence (RFE), in which the petitioner was 
instructed to submit additional evidence to establish that the beneficiary has been and will be employed by the 
petitioner in a primarily managerial or executive capacity. Specifically, the director requested the following: 
(1) a comprehensive description of the beneficiary's duties, explaining how such duties have been and will be 
managerial or executive in nature; (2) a list of the petitioner's U.S. employees by name and position title; (3) a 
breakdown of the number of hours devoted to each employees' job duties on a weekly basis; (4) copies of the 
U.S. company's IRS Forms 941, Employer's Quarterly Federal Tax Return, for all four quarters of 2007 and 
the first two quarters of 2008; (5) a copy of the petitioner's 2007 Form 1120; and (6) copies of all IRS Forms 
W-2 and Forms 1099 issued in 2007. 
In response to the director's request, the petitioner provided the following statement of the beneficiary's job 
duties: 
At the present time, [the beneficiary's] responsibilities have been to supervise three groups of 
employees: those who conduct the import-distribution operations; those who operate the 
corporation's current restaurant; and those who are designing, building and preparing to open 
the corporation's second restaurant. [The beneficiary] continues to serve the corporation by 
overseeing, managing and supervising its three operations. 
[The beneficiary] spends a significant amount of time managing the corporations' first major 
activity, its import-distribution business. [The beneficiary] supervises the corporation's 
negotiations with [the foreign entity's] executives as to products, prices, shipping, delivery 
and other commercial details. . . . Export products from Armenia are shipped through the 
Republic of Georgia, and the recent invasion by Russia had a major, adverse impact on the 
corporation's import activities, because of the closure of the ports. [The beneficiary] has been 
working long hours in an effort to ameliorate the adverse consequences of the port closure on 
the corporation's relationships with its United States distributors. These difficulties have 
required [the beneficiary's] oversight and managerial supervision. 
In addition, [the beneficiary] has been spending a significant amount of time managing the 
corporation's second major activity, its restaurant operation in Miami Beach, Florida. Since 
EAC 08 250 51627 
Page 7 
the beginning of 2008, [the beneficiary] has been preparing for and overseeing the 
restaurant's opening. This included the entire spectrum of executive and managerial 
assignments. Among these are supervising the architects, designers and building contractors, 
coordinating with advisors for government licenses and permits, supervising those who 
develop the menu, supervising the general manager's plans for hiring and training restaurant 
staff, and the like. At the current time, [the beneficiary] devotes a majority of his time to 
providing executive direction and oversight of the work of the general manager, assistant 
managers, chefs and others who operate the corporation's restaurant, Enso on Lincoln. 
Finally, [the beneficiary] spends a significant amount of time managing the corporation's 
second third [sic] activity, organizing the opening of its second restaurant operation in Miami 
Beach, Florida. Like he did in 2008 for the first restaurant, [the beneficiary] now supervises 
the many employees and advisors who are engaged in the start-up process. This includes his 
executive oversight of the architects, designers and building contractors, the advisors for 
government licenses and permits, and the staffing requirements. Even after the second 
restaurant opens, [the beneficiary] will be required to continue to devote a substantial amount 
of his time and attention to providing supervision and executive oversight of the work of the 
general manager and other supervisors of the corporations' second restaurant, Enso on Ocean. 
The petitioner submitted the requested list of employees working for the U.S. company, in which it indicated 
that 11 employees are "formally employed," while an additional 3 1 employees are "in evaluation, training 
andlor probation." The 11 "formal" employees include the beneficiary, a general manager, a chief sushi chef, 
an executive chef, a chef de cuisine, a sous chef, and five cooks. The petitioner did not provide job titles for 
the traineeslprobationary employees. The petitioner submitted copies of IRS Forms W-4, Employee's 
Withholding Allowance Certificate, for 20 employees, all of which were completed in October 2008. 
The petitioner did not provide the requested copies of its IRS Forms 941 for 2007 and 2008. The petitioner 
submitted a copy of a Form 1099, Miscellaneous Income, issued to the beneficiary in 2007, and a copy of its 
2007 Form 1096, Annual Summary and Transmittal of U.S. Information Returns. The Form 1096 confirms 
that the company issued only one Form 1099 in 2007. 
The director denied the petition on November 20, 2008, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity. In denying the petition, 
the director emphasized that the petitioner failed to provide documentary evidence to substantiate its claims 
regarding the staffing of the U.S. company, and also failed to provide the requested position descriptions for 
the claimed subordinate employees. The director concluded that, in light of the petitioner's staffing levels, the 
record did not show how the beneficiary would qualify as a manager or executive other than in position title, 
as there was no evidence of other employees to perform the non-managerial functions of the organization. 
On appeal, the petitioner asserts that it believes its evidence was "complicated and wrongly evaluated." In a 
letter dated December 2, 2008, the beneficiary discusses at length his input into the design and concept of the 
petitioner's two restaurants, his artistic and scientific inspiration for the restaurants' "Scientific Culinary 
Workshop" theme, and the specific menu items available at the restaurants. The beneficiary notes that the 
EAC 08 250 51627 
Page 8 
petitioner's initial goal was to operate an import and distribution business, but states that he made a decision 
to change the direction of the company to focus on restaurants because of destabilization in the alcoholic 
beverages market. He also provides a summary of duties he has performed over the last two years in the areas 
of general operations, financial issues, liabilities and risks, regulatory/legal/litigation, productl marketing1 
restaurant sales/distribution, general/administrative, and investor relations. 
The petitioner submits an "employee report" listing all current employees by name, job title, job description 
and date of hire. The list includes the beneficiary and 26 other employees, all of whom were hired in October 
and November 2008. The subordinate employees include a general manager responsible for supervising and 
administering the day-to-day administration of the restaurant and imports, and 25 restaurant workers, 
including chefs, cooks, bartenders, wait staff and dishwashers. 
In addition, the petitioner provides a letter dated December 1, 2008 from its accountant, - 
states: 
Since its inception in 2005, [the petitioner] was in the process of investing and accumulating 
funds to start its business operations. The efforts of these three years came to their fruition on 
October 27, 2008, when the company opened its first restaurant located on in 
Miami Beach, Florida. 
During the start-up process, the company did not have any employees, because there was no 
need for it. The company's president [the beneficiary], was the driving force within the 
company, who was not being regularly compensated. Thus the company did not issue any 
Forms W-2 or W-3 for 2007. During the start-up process, there were incidental personal 
expenses of [the beneficiary] that were paid from the company funds, for which the company 
issued Forms 1099-MISC and 1096 (copies enclosed). 
shortly after that began hiring employees to run its newly opened restaurant. The payroll of 
these employees was initially handled by the company's checks, but effective November 23, 
2008, the compan contracted the services of -1 to transfer all of its HR 
functions to them. a pioneer in the PEO industry, works with employers in 
over 40 states and provides cost-effective outsourced HR management services, payroll, 
employee benefits, 40 1 (k), workers compensation, etc. 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary would be 
employed in a managerial or executive capacity under the extended petition. 
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. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
EAC 08 250 51627 
Page 9 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The AAO does not doubt that the beneficiary exercises the 
requisite level of authority over the U.S. company as its executive director and sole employee. However, the 
petitioner has not established how the beneficiary's duties, as of the date the petition was filed, were primarily 
managerial or executive in nature. 
At the time the petition was filed, the petitioner had essentially been engaged in start-up activities for over 
two years. As noted above, when a new business is first 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 low level 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 that first 
year. In an accommodation that is more lenient than the strict language of the statute, the "new office" 
regulations allow a newly established petitioner one year to develop to a point that it can support the 
employment of an alien in a primarily managerial or executive position. As discussed above, the petitioner in 
this matter, for reasons that are not entirely clear based on the current record, has already been granted one 
extra year to complete its start-up activities. 
In creating the "new office" accommodation, the legacy Immigration and Naturalization Service (INS) 
recognized that the proposed definitions of manager and executive created an "anomaly" with respect to the 
opening of new offices in the United States since "foreign companies will be unable to transfer key personnel 
to start-up operations if the transferees cannot qualify under the managerial or executive definition." 52 Fed. 
Reg. at 5740. The INS recognized that "small investors frequently find it necessary to become involved in 
operational activities" during a company's startup and that "business entities just starting up seldom have a 
large staff." Id. Despite the fact that an alien engaged in the start up of a new office may not be "primarily" 
employed in a managerial or executive capacity, as then required by regulation and later by statute, the INS 
amended the final regulations to allow for L classification of persons who are coming to the United States to 
open a new office as long as "it can be expected . . . that the new office will, within one year, support a 
managerial or executive position." Id. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is prepared to commence doing business immediately upon approval so that it will support 
a manager or executive within the one-year timeframe. See generally, 8 C.F.R. 5 214.2(1)(3)(~). After one 
year, USCIS will extend the validity of the new office petition only if the entity demonstrates that it has been 
doing business in a regular, systematic, and continuous manner "for the previous year." 8 C.F.R. 5 
2 14.2(1)(14)(ii)(B). 
Upon review of the current petition, it is apparent that the petitioner was not prepared to commence doing 
business upon approval of its initial new office petition, or even upon the approval of its previous one-year 
extension. Rather, the record shows that the beneficiary, two years after the granting of the petitioner's first 
"new office" approval, has still been performing many of the non-managerial duties associated with the 
EAC 08 250 5 1627 
Page 10 
petitioner's startup activities. While the beneficiary is responsible for the strategic direction of the company, 
its business plans, and major decisions, he has also been responsible for all other lower-level administrative 
and operational functions, from applying for permits and licenses, to purchasing furniture and supplies for the 
petitioner's restaurants. Based on the current record, the AAO is unable to determine whether the claimed 
managerial duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily 
performs non-managerial administrative or operational duties. The petitioner's description of the beneficiary's 
job duties does not establish what proportion of the beneficiary's duties is managerial in nature, and what 
proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. 
At the time of filing, the petitioner claimed to have 78 employees, including the beneficiary, five unidentified 
managers and executives, and 72 restaurant workers. In response to the RFE, the petitioner claimed to employ 
11 "formal employees" and 3 1 trainees. On appeal, the petitioner concedes that the beneficiary was the sole 
employee since the establishment of the company and at the time of filing, and that even he was only 
reimbursed for expenses and not paid as a salaried employee. The petitioner indicates that it now employs 26 
workers, all of whom were hired subsequent to the filing of the petition. Of note, the petitioner has not 
attempted to explain why it initially claimed that it employed 78 workers. It is incumbent upon the petitioner 
to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Id. at 59 1. 
As noted above, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A 
visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a 
new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The AAO will not 
consider the beneficiary's supervision of those employees hired after the date of filing in determining whether 
he is employed in a primarily managerial or executive capacity. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10 1 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 10 1 (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. 5 214.2(1)(l)(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. 5 214.2(1)(1)(ii)(B)(3). 
EAC 08 250 5 1627 
Page 11 
The beneficiary, as the petitioner's sole employee, cannot qualify as a personnel manager. Although the 
petitioner has indicated that the beneficiary has utilized the services of architects, designers and other outside 
contractors in preparation for the opening of its restaurants, the petitioner has neither presented evidence to 
document the existence of these employees nor identified in detail the services these individuals provide. 
Additionally, the petitioner has not explained how the services of any contracted employees obviate the need 
for the beneficiary to primarily conduct the day-to-day administrative and operational functions associated 
with the petitioner's ongoing startup activities. Without documentary evidence to support its statements, the 
petitioner does not meet its burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. ij 1 101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a detailed job description 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. $ 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. As discussed above, the beneficiary, notwithstanding his managerial authority as the 
petitioner's executive director, is necessarily involved in performing all non-managerial functions associated 
with the petitioner's import and distribution business and restaurant start-up activities as the company's sole 
employee. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1(a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-day operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. Again, the petitioner has not 
established that the beneficiary is relieved from performing various routine activities related to the company's 
administrative, marketing, sales, purchasing, and other operational functions, such that he could primarily 
focus on the goals and policies of the organization, nor does the record establish that the organization has a 
subordinate level of employees. Accordingly, the record does not support a conclusion that the beneficiary has 
been and would be performing primarily executive duties as of the date the petition was filed. 
EAC 08 250 5 1627 
Page 12 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 9 1 101(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, USCIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require USCIS to examine the organizational structure and 
staffing levels of the petitioner. 
 See 8 C.F.R. fj 214.2(1)(14)(ii)(D). 
 The regulation at 8 C.F.R. fj 
214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of the petition to 
support an executive or managerial position. There is no provision in USCIS regulations that allows for an 
extension of this one-year period. If the business does not have sufficient staffing after one year to relieve the 
beneficiary from primarily performing operational and administrative tasks, the petitioner is ineligible by 
regulation for an extension. In the instant matter, the petitioner has not reached the point that it can employ 
the beneficiary in a predominantly managerial or executive position. Accordingly, the appeal will be 
dismissed. 
Beyond the decision of the director, the AAO finds that the evidence of record does not establish that the 
petitioner has been doing business for the year preceding the filing of the petition as required by 8 C.F.R. fj 
2 14.2(1)(14)(ii)(B). 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(H) states: "Doing business means the regular, systematic, and 
continuous provision of goods andor services by a qualifying organization and does not include the mere 
presence of an agent or office of the qualifq.ing organization in the United States and abroad." 
As noted above, the petitioner has not reported any income or expenses or paid any taxes since its 
incorporation in October 2005. At most, the evidence of record suggests that the petitioner imported a few 
containers of vodka from its parent company in Armenia in 2007, and spent the majority of 2008 making the 
necessary preparations to open two restaurants in Miami. The petitioner's accountant indicates that the 
petitioner started its business operations in earnest on October 27, 2008, approximately one month after the 
instant petition was filed. 
Based on this evidence, the petitioner has not established that it was doing business for the previous year, or 
at the time the petition was filed. The petitioner has not submitted evidence that it was engaged in the regular, 
systematic, and continuous provision of goods and/or services at any time since the beneficiary's initial period 
of L-lA classification, which commenced in September 2006. 
As noted above, the regulations allow for a one-year period for a U.S. petitioner to commence doing business 
and develop to the point that it will support a managerial or executive position. The only provision that 
allows for the extension of a "new office" visa petition requires the petitioner to demonstrate that it is staffed 
and has been "doing business" in a regular, systematic, and continuous manner for the previous year. 8 
C.F.R. 5 214.2(1)(14)(ii). 
Here, many of the activities undertaken by the beneficiary during the second year of operations, such as 
renovating a leased property and obtaining required licenses and permits, involved activities would 
reasonably be expected to be completed prior to the filing of an initial new office petition. The new office 
EAC 08 250 5 1627 
Page 13 
provisions were added to the regulations in 1987 specifically in recognition that it would be impossible for 
some new offices to immediately employ someone in an executive or managerial capacity as defined in the 
regulations. See 52 Fed. Reg. at 5739-5740. At the same time, the legacy INS stated that it "must concern 
itself with abuse or the potential for abuse of any visa category" and further noted that "one year is sufficient 
for any legitimate business to reach the 'doing business' standard." Id. Thus, it appears that the petitioner's 
present ineligibility for the benefit sought is not the result of a restrictive regulation but rather a lack of legal 
and business planning juxtaposed with what appears to be normal and expected business delays in the 
petitioner's given industry. 
The petitioner provides evidence on appeal to establish that the U.S. entity is now doing business. Again, the 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may 
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
The petitioner has not established that the 17.S. company was not doing business at the time of filing or for the 
previous year. For this additional reason, the appeal will be dismissed. 
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), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that 
burden has not been met. 
ORDER: The appeal is dismissed.