dismissed L-1A Case: Business Consulting

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ojAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
identifying data deleted to 
prevent clesri j  warranted 
 U.S. Citizenship 
invasion of personal privacy 
 and Immigration 
Services 
PI TBCTC COPY 
File: WAC 08 242 50 189 
IN RE: 
Office: CALIFORNIA SERVICE CENTER 
 Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 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. 9 103.5 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. fj 103.5(a)(l)(i). 
kf,?d","inistrative Appeals Office 
WAC 08 242 50 189 
.. Page 2 
DISCUSSION: The Director, California 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-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a Nevada corporation established in 2008, states that it intends to 
provide business consulting services. The petitioner claims to be a subsidiary of Promotores Profesionales del 
Noroeste, SA de CV, located in Mexico. The petitioner seeks to employ the beneficiary as the chief executive 
officer of its new office in the United States for a period of three years.' 
The director denied the petition on two independent grounds, concluding that the petitioner failed to establish: 
(1) that the beneficiary was employed by the foreign entity in a primarily managerial or executive capacity; 
and (2) that the beneficiary would be employed by the U.S. entity in a primarily managerial or executive 
capacity within one year of approval of the petition. 
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 for the petitioner asserts that the petitioner 
submitted evidence that "showed unquestionably" that the beneficiary has been and would be performing 
duties that are executive and managerial in nature. Counsel contends that the director did not take into account 
the reasonable needs of the Mexican or U.S. entities in light of their overall purpose or stage of development. 
The petitioner submits 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 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. 5 214.2(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. 
Pursuant to the regulation at 8 C.F.R. 5 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new ofice, the petition may be approved for a period not to exceed one year. 
WAC 08 242 50189 
Page 3 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifiing 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 himiher 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 
(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 addressed by the director 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. 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; 
WAC 08 242 50 189 
- Page 4 
(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. $ 1 101(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 September 9, 2008. In a letter dated August 22, 2008, counsel 
for the petitioner described the beneficiary's position with the foreign entity as follows: 
For at least one of the preceding years, [the beneficiary] has been employed in an executive 
capacity for the foreign entity. Since 2001, he has directed the management of [the foreign 
entity], established the goals and policies of the company, and exercised wide latitude in 
discretionary decision-making with no supervision from anyone. This meets the definition of 
executive capacity under 8 CFR $ 214.2(1)(l)(ii)(C). 
In support of the initial filing, the petitioner provided a copy of the foreign entity's organizational chart, which 
indicates that the beneficiary, as president, directly supervises a general manager, an accounting and finance 
manager, a business development manager and a legal affairs employee. The chart indicates that the general 
manager supervises two office managers, a payroll employee, two customer service employees, and two 
assistants. The chart shows that the accounting and finance manager supervises a tax manager and an assistant. 
The petitioner submitted copies of photo identification for the employees listed on the chart, as well as copies of 
CPA licenses for the general manager, the accounting and finance manager, and office manager. 
WAC 08 242 501 89 
Page 5 
On September 16, 2008, the director issued a request for evidence (RFE), instructing the petitioner to provide, 
inter alia, additional evidence to establish that the beneficiary was employed by the foreign entity in an 
executive or managerial capacity for one continuous year within the three years preceding the filing of the 
petition. Specifically, the director requested: (1) a more detailed description of the beneficiary's duties abroad 
and the percentage of time the beneficiary spends in each of his listed duties; (2) job titles and job duties for 
all employees managed by the beneficiary; and (3) an organizational chart for the foreign entity. The director 
also requested copies of the foreign company's payroll records pertaining to the beneficiary for the year 
preceding the filing of the petition. 
In a letter dated December 8, 2009, counsel for the petitioner provided the following information in response 
to the director's request for a more detailed description of the beneficiary's duties: 
Beneficiary is the 98% owner of the parent company, and served as chairman of the board of 
chief executive officer. As a small business, he performed the day-to-day management 
operations of the business, including preparation and review of all transactional documents, 
development of marketing strategies, execution of business strategies, risk assessment, 
personnel planning. 
The petitioner submitted a letter dated November 24, 2008, from the U.S. company's accountant, = 
who stated that the foreign entity does not have payroll. He stated that "the company has 
outsourcing with two other companies that carry the employees and their corresponding payroll." Mr. 
noted that as a shareholder of the foreign entity, the beneficiary was not treated as an employee and 
therefore was not on the payroll for the outsourcing companies. stated that the beneficiary did 
receive guaranteed payments. In support of this statement, the foreign entity submitted a chart summarizing 
payments made to the beneficiary from January through December 2007. The petitioner submitted copies of 
the beneficiary's bank statements as evidence that the funds from the foreign entity were deposited in his 
account. 
The petitioner submitted a new organizational chart for the foreign entity, showing the same structure outlined 
in the previously submitted chart. The petitioner also submitted a chart depicting the foreign entity as "parent 
company" with dotted-line authority over "Administracion en Accion SA de CV, (Independent Contractor, 
Outsourced Employees)," and "Comercializadora de Clubes y Desarolles, SC, (Independent Contractor, 
Outsourced Salespersons)." The petitioner did not submit the requested position descriptions for the foreign 
entity's employees. 
The director denied the petition on December 12, 2008, concluding that the petitioner failed to establish that 
the beneficiary had been employed by the foreign entity in a primarily managerial or executive capacity. In 
denying the petition, the director emphasized that the petitioner provided minimal documentation describing 
the beneficiary's position with the foreign entity, and submitted a vague job description that merely 
paraphrased the statutory definition of executive capacity. The director further found that the petitioner failed 
to establish that the beneficiary has been primarily managing a staff of professional employees, as the 
petitioner did not provide the educational levels for the foreign entity's employees. 
WAC 08 242 50 189 
Page 6 
On appeal, counsel for the petitioner asserts that the director failed to take into account evidence "that showed 
unquestionably that the beneficiary performed duties normally associated with both a manager and an 
executive for the Mexican entity." Counsel states: 
[Tlhe beneficiary was the sole responsible party for entering into contracts on behalf of either 
entity, for hiring and firing in the Mexican entity, for opening up bank accounts, interfacing 
with outside professionals, including accountants and attorneys, for filing all required 
corporate tax and licensing documents. Given this, it is incredulous to assert that the 
beneficiary is not primarily a manager or executive. . . . 
Counsel asserts that he director applied a higher standard of proof than that allowed by law and emphasizes 
that the petitioner need only establish by a preponderance of the evidence that the beneficiary has been 
employed in a primarily managerial or executive capacity. 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary has been 
employed by the foreign entity in a managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. fj 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. 
Here, the petitioner's initial description of the beneficiary's duties consisted of counsel's statement that the 
beneficiary "has directed the management of [the foreign entity], established the goals and policies of the 
company, and exercised wide latitude in discretionary decision-making with no supervision from anyone." 
Counsel asserted that such duties meet the definition of "executive capacity." As noted by the director, 
counsel simply paraphrased the statutory definition of executive capacity. See section 101(a)(44)(B) of the 
Act. Contrary to counsel's assertion, conclusory assertions regarding the beneficiary's employment capacity 
are not sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 
(2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Accordingly, the director requested a detailed description of the beneficiary's duties while employed by the 
foreign entity, and a clear explanation as to how his time was allocated among his duties. In response, 
counsel stated that the beneficiary "performed the day-to-day management operations of the business 
including preparation and review of all transactional documents, development of marketing strategies, risk 
assessment, personnel planning." This brief statement provides little insight into the nature of the 
beneficiary's actual duties and falls significantly short of being responsive to the director's request for a 
detailed position description. Furthermore, the petitioner failed to include the specific breakdown of the 
percentage of time the beneficiary devotes to specific duties. The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). 
In the notice of decision, the director clearly advised that the petition was being denied, in part, based on the 
petitioner's failure to provide a meaningful description of the beneficiary's specific job duties. Despite this 
WAC 08 242 50189 
- Page 7 
finding, the petitioner has not provided any additional information regarding the beneficiary's duties on 
appeal, and instead, counsel focuses on the beneficiary's level of authority within the foreign company as its 
majority owner and president. 
The definitions of executive and managerial capacity each 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). 
Thus, the fact that the beneficiary owns and manages a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity as defined by sections 
101(a)(44)(A) and (B) of the Act. The record must establish that the majority of the beneficiary's duties fall 
within the statutory definitions of managerial or executive capacity. The AAO does not doubt that the 
beneficiary exercises the requisite level of authority over the foreign entity. However, due to the petitioner's 
failure to provide a meaningful description of the beneficiary's day-to-day duties, and a breakdown of how the 
beneficiary's time has been allocated among managerial and non-managerial tasks, the petitioner has not 
established that the beneficiary was employed in a primarily managerial or executive capacity. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Moreover, the petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, 
rather the AAO must determine based on a totality of the record whether the description of the beneficiary's 
duties represents a credible perspective of the beneficiary's role within the organizational hierarchy. When 
examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and Immigration Services 
(USCIS) reviews descriptions of a beneficiary's duties and those of his or her subordinate employees, the 
nature of the petitioner's business, and any other facts contributing to a complete understanding of a 
beneficiary's actual role in a business. 
The petitioner has submitted organizational charts indicating that the foreign entity has a multi-tiered 
personnel structure and employs a staff of 13 employees in addition to the beneficiary. 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. 5 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 101(a)(44)(A)(iv) 
of the Act; 8 C.F.R. 5 214.2(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. 5 214.2(1)(1)(ii)(B)(3). 
In the request for evidence, the director specifically requested that the petitioner provide job descriptions and 
educational qualifications for the beneficiary's subordinate employees. Such information is critical in 
WAC 08 242 501 89 
, Page 8 
determining whether the beneficiary supervises professionals, managers or supervisors. The petitioner failed 
to submit evidence of the employees' duties or educational credentials. An employee will not be considered to 
be a manager or supervisor simply because of a job title, because he or she is arbitrarily placed on an 
organizational chart in a position superior to another employee, or even because he or she supervises daily 
work activities and assignments. See generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 
907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 1 1, 
2007)). Rather, the employee must be shown to possess some significant degree of control or authority over 
the employment of subordinates. Again, the 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). 
Furthermore, the record contains insufficient evidence to establish that the foreign entity actually employs the 
claimed workers. The petitioner indicated in response to the RFE that the foreign entity has no payroll and 
instead "has outsourcing agreements with two other companies that carry the employees and their 
corresponding payroll." The petitioner did not provide any evidence regarding these "two other companies" 
or their relationship with the petitioner. The petitioner submitted a chart suggesting that the foreign entity 
utilizes the services of independent contractors employed by "Administracion en Accion SA de CV" and 
"Commercializadora Clubes y Desarolles, SC," but it is not clear whether the petitioner was attempting to 
demonstrate that the employees on the foreign entity's organizational chart are employees of these two, 
apparently unrelated, companies. Again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 
165. 
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 1 (a)(44)(B) of the Act, 8 U.S.C. fj 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 
managerial 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's "c~ntrol,'~ management 
or direction over a company cannot be assumed or considered "inherent" to his position merely on the basis of 
the beneficiary's job title, placement on a general organizational chart or broadly-cast business 
responsibilities. The petitioner's description of the beneficiary's duties is insufficient to establish that the 
beneficiary has performed primarily executive duties while employed by the foreign entity. 
Finally, the AAO notes that the information provided in the beneficiary's resume indicates that he has been 
self-employed as a consultant and real estate dealer, and working for two employers, in addition to the foreign 
entity, since 2002. Specifically, the beneficiary indicates that he has served as "Partner-Director" of the foreign 
entity since 2001. The beneficiary also indicates that since 2001, he has served as a business consultant 
responsible for strategy and development of new markets for "Administracion en Accion, SA de CV," a payroll 
and human resources company. In addition, the beneficiary states that since 2002, he has served as a business 
consultant responsible for strategy and sales training, for a company called "Comercializadora de Clubes y 
Desarrollos, SC." Finally, the beneficiary indicates that he has been self-employed as a business consultant and 
WAC 08 242 50189 
, Page 9 
real estate dealer since 2002. This information raises questions as to whether the beneficiary has been 
employed by the foreign entity on a full-time basis for one continuous year during the three years preceding 
the filing of the petition, as required by 8 C.F.R. 5 214.2(1)(3)(iii). 
Based on the foregoing discussion, the petitioner has not submitted sufficient evidence to establish that the 
beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. For this 
reason, the appeal will be dismissed. 
The second issue in this matter is whether the petitioner established that the beneficiary would be employed 
by the United States entity in a qualifying managerial or executive capacity within one year. 
The petitioner stated on Form 1-129 that the beneficiary will "oversee design, marketing, promotion, delivery and 
quality of programs, products and services" in his proposed role as chief executive officer of the U.S. entity. 
Counsel indicated in his letter dated August 21, 2008 that the beneficiary will "direct the management of the 
organization, establish the goals and policies of the company, and exercise wide latitude in discretionary decision- 
making with no supervision from anyone." 
The petitioner submitted a detailed business plan for the U.S. company, in which it indicates that it anticipates 
that the company will grow to a staff of three full-time employees within the first two years of operation. The 
petitioner stated that it "plans to develop and train 2 new salespeople by year two," but that the beneficiary will be 
the primary sales contact until revenues increase." The petitioner indicates that its revenues will be derived from 
consulting services, business management services and agency services. 
The petitioner's business plan further describes the company's personnel plan as follows: 
The company will rely on its president for the most of its first 2 years of operations, then a junior 
sales person and an assistant will be hired. 
While this business unit becomes profitable, the Mexican ofice will handle information, most of 
the accounting and other chores using the internet. 
Other positions such as public relations or marketing are likely to be outsourced. . . . 
The petitioner indicates that the beneficiary would be the only employee in fiscal year 2009, and that an 
"assistant" would be hired in fiscal year 2010. The petitioner's plan calls for the hiring of a sales person in fiscal 
year 201 1. The petitioner also submitted an organizational chart indicating that an assistant would be hired in July 
2009 and a sales person hired in December 2009. According to the petitioner's pro forma profit and loss 
statement, the beneficiary would be the only employee paid between August 2008 and July 2009. 
h the request for evidence issued on September 16, 2008, the director instructed the petitioner to submit a more 
detailed description of the beneficiary's proposed duties in the United States, including the percentage of time he 
will spend in each of the specific listed duties. The director also requested that the petitioner provide the job titles 
and position descriptions for employees the beneficiary will supervise. 
WAC 08 242 501 89 
- Page 10 
In response to the director's request, counsel for the petitioner provided the following description of the 
beneficiary's proposed duties: 
As Chief Executive Officer of the U.S. entity, the beneficiary will implement the strategic goals 
and objectives of the organization. With the chair, enable the Board to fulfill its governance 
function. To give direction and leadership toward the achievement of the organization's 
philosophy, mission, strategy and its annual goals and objectives. The beneficiary will oversee 
design, marketing, promotion, delivery and quality of programs, products and services. He will 
actively seek new business opportunities needed for sustained growth. He will recommend 
yearly budget and manage the organizations resources within those budget guidelines according 
to current laws and regulations. He will manage the human resources of the organization 
according to authorized personnel policies and procedures that fully conform to current laws and 
regulations. He will be the face of the organization and will present a positive image for the 
corporation before the local community and seek to build a positive brand in the community. 
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. In denying the petition, the director 
observed that the petitioner provided a vague and non-specific description that fails to demonstrate what the 
beneficiary will do on a day-to-day basis. The director further noted that, based on the duties described, it 
appeared that the beneficiary would be performing the marketing functions of the organization, and that the 
petitioner had failed to submit evidence that it will employ individuals within one year who will relieve the 
beneficiary from performing the non-qualifying duties of the organization. 
On appeal, the petitioner objects to the director's decision and asserts that "there is nothing in the statute or the 
regulations that prevents the issuance of an L-1A status to the beneficiary of a start-up business with no other 
employees." Counsel asserts that the petitioner submitted ample evidence to establish that the beneficiary would 
be performing primarily managerial or executive duties in the United States. Counsel notes that the beneficiary 
has signed the petitioner's lease, incorporation documents, licenses, insurance and bank documents and that only 
an executive or manager has such authority. The petitioner submits letters from its contracted accountant, and a 
letter from a company director, -, who confirm the beneficiary's authority to manage the U.S. 
company. 
Upon review, the petitioner has not established that the beneficiary will be employed in a primarily managerial or 
executive capacity within one year of commencing operations. 
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. fj 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
WAC 08 242 50189 
. Page 11 
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. 3 
2 14.2(1)(3)(v)(A). 
Here, the petitioner has submitted a detailed business plan, provided evidence of the foreign entity's 
investment in the United States entity, and demonstrated that the beneficiary will have managerial or 
executive authority over the new operation. However, the petitioner has failed to sufficiently describe the 
beneficiary's proposed duties, and has failed to establish that how the beneficiary would be relieved from 
performing non-qualifying duties within one year. 
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. $ 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. The AAO will then consider this information in light of 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. 
As noted by the director, the petitioner has provided a general description of the beneficiary's proposed duties 
that fails to demonstrate what the beneficiary will do on a day-to-day basis after one year in operation. The 
position description submitted at the time of filing merely paraphrased the statutory definition of executive 
capacity and provided no insight into the nature of his actual duties. As stated above, conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp.at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Accordingly, the petitioner was instructed to provide a detailed description of the beneficiary's specific 
proposed duties and the amount of time he is expected to allocate to each task. The position description 
submitted in response was not substantially more detailed that the description submitted at the time of filing 
and included primarily broad and nonspecific duties. For example, the petitioner indicated that the beneficiary 
will "implement the strategies goals and objectives of the organization," and "give direction and leadership 
toward the achievement of the organization's philosophy, mission, strategy and goals." 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. at 1108. 
Moreover, as noted by the director, some of the duties described, without further explanation regarding the 
specific tasks to be performed, suggest that the beneficiary may be directly involved in marketing and client 
services operations. The AAO will not speculate as to what qualifying duties may be involved in seeking new 
business opportunities and "overseeing" "design, marketing, promotion, delivery and quality of programs, 
WAC 08 242 50 189 
. Page 12 
products and services," particularly in light of the petitioner's personnel plan, which does not contemplate the 
hiring of any subordinate staff to perform these services during the first year of operations. If the beneficiary will 
be personally involved in selling or providing the petitioner's consulting, management and agency services to 
clients, such duties would not be in a managerial or executive capacity. 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 10 1(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 Intn 'l., 19 I&N Dec. 593,604 (Comm. 1988). 
As noted above, the definitions of executive and managerial capacity each 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 show 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). While it appears that the beneficiary would exercise 
the requisite authority over the U.S. company as the senior member of its one or two-person staff, 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. Although specifically requested by the director, 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). 
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 responsibilities and to the operation of the 
business in general. As noted above, the petitioner's business plan calls for the beneficiary to be the 
company's primary sales contact until additional sales people can be hired. The petitioner does not intend to 
hire a sales person until some time during the second year of operations. Nor does the petitioner intend to hire 
any personnel to provide the services of the company which will include consulting, business management 
and agency services. In fact, the petitioner states that "the company will rely on its president for the most of 
its first 2 years of operations." The petitioner indicates that the Mexican company will "handle information, 
most of the accounting and other chores using the Internet," but the petitioner has not explained with any 
specificity how the foreign entity's staff would relieve the beneficiary from primarily performing non- 
managerial duties associated with the day-to-day operations of the U.S. business. Although it appears that the 
petitioner may hire an assistant near the end of the first year of operations, the petitioner did not indicate what 
duties the assistant would perform. The director specifically requested that the petitioner provide the job titles 
and job duties of employees who would be supervised by the beneficiary. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. fj 
103.2(b)(14). 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See fj 101(a)(44)(C) of the Act, 8 U.S.C. fj 1 101(a)(44)(C). In reviewing the relevance of the number of 
employees a petitioner has, federal courts have generally agreed that USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to support a 
WAC 08 242 50189 
, Page 13 
manager." Family Inc. v. US. Citizenship and Immigration Services 469 F. 3d 1313, 1316 (9" Cir. 2006) 
(citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003)). Furthermore, it is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees 
who would perform the non-managerial or non-executive operations of the company, or a "shell company" 
that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. 
Supp. 2d 7,15 (D.D.C. 2001). 
The AAO acknowledges that a sole employee, in some circumstances, may provide primarily managerial or 
executive services for a petitioner. However, the petitioner must establish that someone other than the 
beneficiary would be responsible for performing the non-managerial tasks inherent to the business, such that 
the beneficiary would be able to devote the majority of his time to qualifying duties. Upon review of the 
record in this matter, the petitioner has not provided substantiating evidence that the petitioner, within one 
year, would rely on anyone other than the beneficiary to carry out the necessities of marketing and selling the 
petitioner's services to its prospective clients, or to provide the company's actual consulting, management and 
agency services. 
Overall, as the petitioner fails to clearly explain what tasks the beneficiary would perform after the petitioner's 
first year in operation, how much time the beneficiary will devote to performing non-qualifying tasks, or who 
would be performing the routine, non-managerial duties of the business, it cannot be confirmed that he will be 
"primarily" employed as a manager or executive within one year. For this additional reason, 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. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if he or she shows that the AAO abused its discretion 
with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. 
Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003). 
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.