dismissed L-1A Case: Business Management

MATTER OF A-M- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 12,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a management company, seeks to temporarily employ the Beneficiary as the general 
manager of its new office under the L-1 A nonimmigrant classification for intracompany transferees. 
See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The L-1A classification allows a corporation or other legal entity (including its affiliate or subsidiary) to 
transfer a qualifying foreign employee to the United States to work temporarily iri. a managerial or 
executive capacity. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner had not established that it would support the Beneficiary in a managerial or executive 
capacity within one year of approval. The Petitioner subsequently filed a motion to reopen. The 
Director reopened the matter to consider the Petitioner's new evidence and affirmed the denial of the 
petition. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director's 
decision is based on erroneous factual findings and an incorrect application of U.S. Citizenship and 
Immigration Services (USCIS) policy. 
Upon de novo review, we will dismiss the appeal. / 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(15)(L) of the Act. 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. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual' petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of A-M- Inc. 
(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) ofthis 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 him/her 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)(v) further provides that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
/new office 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 involved executive of 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 (1)(1 )(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. 
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(b)(6)
Matter of A-M- Inc. 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director denied the petition finding that the Petitioner did not establish that the Beneficiary will 
be employed in a managerial capacity within one year of approval of the petition. The Petitioner 
does not claim that the Beneficiary will be employed in an executive capacity. Therefore, we restrict 
our analysis to whether the Beneficiary will be employed in a managerial capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 
Further, "[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." /d. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USC IS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. See section 1 01 (a)( 44 )(C) 
of the Act. 
A. Evidence of Record 
The Petitioner filed the Form I -129 on May 6, 20 15. In a letter submitted in support of the petition, 
dated May 5, 2015, the Petitioner stated that it was incorporated in November 2014 and had been 
"set up as a management company that will manage gas station/mini market combo operations 
located in PA." The Petitioner noted that it had secured two management contracts 
with two different gas station/mini markets and submitted copies of those agreements. The 
Petitioner identified the Beneficiary's role as "supervision of this very crucial function of [the 
Petitioner], i.e., business development and oversight, [which] is essential to [the Petitioner's] 
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(b)(6)
Matter of A-M- Inc. 
business operations and key to the international market." The Petitioner added that the Beneficiary 
"will fill a critical managerial function in our business structure." The Petitioner indicated that the 
Beneficiary is needed in the proposed position "in order to develop and direct the operations of our 
U.S. subsidiary and take it to the direction envisioned in our strategic business plan." The Petitioner 
stated further: 
[The Beneficiaryl will manage--at a senior level--the supervision of functions critical 
to the success of our company's business directives, profit objectives, and global 
business aims. The specific function• [the Beneficiary] will be responsible for is the 
management of all business development and operational activities. He will also be 
responsible for formulating corporate development strategies for further business and 
development plans to increase the business of [the Petitioner] in the United States. 
The Petitioner referenced the two management contracts it had already secured and noted that the 
Beneficiary will serve as the general manager of these gas statiorilmini market operations and "will 
be responsible for overseeing the daily operations of both the companies under our management, 
including, without limitation, retention and termination of empioyees, management of payroll, and 
management of receivables and expenses." The Petitioner also submitted a position description for 
I ' 
the proffered position which reiterated that the general manager would manage and oversee business 
development and operational activities of the company. The position description noted the general 
manager's duties and responsibilities would be divided among five different areas, strategic 
guidance, sales and marketing, finance and accounts, personnel management, and customer relations. 
The copies of the Petitioner 's management contracts with and with (the 
managed companies), are both dated May 3, 2015, with a commencement date of May 3, 2015. The 
management agreements identify the duration of the agreement as five years, unless: (1) the 
company owning the gas station/mini marts ceases doing business; (2) the managed company or the 
Petitioner dissolve or become bankrupt; or (3) upon 90 days' notice. Each agreement also included 
the following language, "[m]anager's [(referring to the Petitioner's)] principal duties shall include 
the management of the daily operations of the Company's Business including, without limitation, 
retention and termination of employees, management of payroll,. and management of receivables and 
expenses." 
The initial record further included the Petitioner's organizational chart depicting the Beneficiary as 
the general manager over and The chart identified a manager for each of 
the companies with three salespersons, two cashiers, and one account clerk reporting to the manager 
for and three salespersons, one cashier, and one accounts clerk reporting to the manager 
for The organizational chart shows that the Beneficiary would report to the Petitioner 's 
president/owner, but did not include any other positions within the Petitioner's organization. 
The Petitioner also submitted copies of the managed companies' tax returns, including 
2013 IRS Form 1120S, U.S. Income Tax Return for an S Corporation, and · 2014 Form 
1120S. The record further included payroll journal for six employees during the first 
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(b)(6)
Matter of A-M- Inc. 
two weeks of April 2015, and 
weeks ofMay 2015. 
payroll timesheet for eight employees for the first two 
payroll journal confirmed that it employed five of the seven employees depicted on the 
organizational chart, including a part-time cashier, two full-time and one part-time sales employees, 
and the manager, who worked ten hours during the two-week pay period at an hourly wage of $8.00. 
The second cashier and "accourits" employee depicted on the organizational chart were not paid, but 
did pay a salary to its owner7 who did not appear on the organizational chart. 
timesheet lists eight employees, but shows "year-to-date" earnings for only four of 
them, suggesting that there were only four active employees as of May 2015. The confirmed active 
employees include the manager, two sales employees, and company owner, 
who did not appear on the organizational chart. 
In an August 1 0, 2015, response to the Director's request for evidence (RFE), the Petitioner provided 
a lengthy, similar description of the Beneficiary's proposed duties and allocated the time the 
Beneficiary would spend performing the duties.1 The Petitioner stated that the Beneficiary would 
spend his time as follows: 
• Strategic and operational management including servmg as general manager for 
contracted businesses - 40 percent 
• Sales and marketing- 30 percent 
• Finance and Accounting - 10 percent 
• Managing inventory and stock control -
5 percent 
• Overseeing goods, materials, quality control, and determining reliability of suppliers -
5 percent 
• Overseeing, reviewing, and approving all personnel actions -
5 percent 
• Personally handling customer and supplier complaints that cannot be handled by the 
managed companies' business managers -
5 percent 
In the same letter, dated August 10, 2015, the Petitioner indicated that in performing his duties, the 
Beneficiary would directly supervise the Petitioner's accountant/chief financial officer and office 
manager as well as the business managers employed by the managed . gas station/mini mart 
companies. The Petitioner also noted that it required its office manager and chief financial officer to 
have a bachelor's degree. 
The Petitioner also submitted an undated business plan in which it outlined its personnel plan. The 
Petitioner indicated that it planned to employ an accountant, bookkeeper, and office manager, in 
addition to the Beneficiary, in the first year of operations, with total projected salaries of $180,000 in 
year one. The Petitioner's business plan also showed that the owner of the foreign entity "is 
providing $75,000, which is the complete amount needed to open and operate this business." The 
1 We reviewed the lengthy. narrative but will not reprint it in its· entirety here. 
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(b)(6)
Matter of A-M- Inc. 
Petitioner submitted copies of its May, June, and July 2015, bank statements showing balances of 
$52,741.77, $52,739.77, and $53,837.77 respectively. 
The Petitioner included a revised organizational chart , which identified the positions of 
owner/president and owner/vice president senior to the Beneficiary and showed that he will 
supervise the Petitioner's "administration" and "finance and accounting" departments, as well as 
and under the terms of the management contract. The chart shows an 
office manager and an administrative assistant in the administration department, and an 
accountant/chief financial officer, payroll manager, and bookkeeper/accounts receivable and payable 
employee in the financial and accounting department. The business plan notes that the president and 
vice president, both owners of the petitioning company, will not receive a salary, but it includes 
them among the "key players ofthe management team." 
The Director denied the petition determining that the Petitioner would not grow to. a sufficient size 
and scope by the end of the first year of operations to support a qualifying L-1 A managerial position, 
or that the Beneficiary . would be relieved from performing non-qualifying duties by subordinate 
managers or professionals. 
On motion, the Petitioner submitted a similar position description for the Beneficiary and a table of 
duties that identified the staff and managers of the managed businesses as the individuals who would 
perform the operational duties. The table identified the Beneficiary as the Petitioner's general 
manager and the de facto general manager of the managed companies. The Petitioner asserted that 
both its accountant/chief financial officer and office manager would be professional positions and 
that the two current managers of the managed businesses both held bachelor's degrees and thus are 
also professionals. The Petitioner noted that its chief financial officer would also spend time as a 
supervisor of the bookkeeper during the first year of operations. The Petitioner further included a 
third organizational chart, essentially combining the first two organizational charts submitted. The 
Petitioner submitted descriptions for the proposed positions of accountant/chief financial officer, 
office manager, and bookkeeper, as well as for other positions to be hired subsequent to the first year 
of operations. The Petitioner noted further that the vice president of the company, who is also an 
owner/partner would use personal contacts and make calls to market th'e Petitioner's management 
services. 
The Petitioner also included position descriptions for the positions of manager for the managed 
businesses as well as the managed businesses' other employees. The Petitioner asserted that the staff 
of the managed companies will perform the operational duties of the gas station/mini marts, while 
the Beneficiary will manage and oversee these operations. The Petitioner asserted that the 
management agreements, which give the Petitioner the right to hire, pay, fire, supervise, or otherwise 
control the work of the managed companies' employees, establish that the employees of the 
managed businesses are the Petitioner's employees. 
Upon review of the new evidence submitted on motion, the Director affirmed her previous decision. 
6 
Matter of A-M- Inc. 
On appeal, the Petitioner reiterates its claim on motion that pursuant to USCIS policy, the 
Petitioner's right to control the work of the managed coqtpanies' employees makes the individuals 
actual employees.2 The 'Petitioner maintains that the Beneficiary will manage the functions of sales, 
marketing, product pricing, and inventory control of the managed businesses, and that its proposed 
accountant/chief financial officer and office manager positions are both professional positions. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the· Beneficiary will be employed 
in a managerial capacity within one year of the petition's approval. 
When a new business is first established and commences operations, the regulations recognize that a 
designated manager responsible for setting up operations will be engaged in a variety of low-level 
activities not normally performed by employees at the managerial level and that often the full range 
of managerial responsibility cannot be performed in that first year. The "new office" regulations 
allow a newly established petitioner one year to develop to a point that it can support the 
employment of a beneficiary in a primarily managerial position. 
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 within the one-year timeframe. This evidence should demonstrate a 
realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the 
developmental stage to full operations, where there would be an actual need for a manager who will 
primarily perform qualifying duties. See generally 8 C.P.R. § 214.2(1)(3)(v). The petitioner must 
describe the nature of its business, its proposed organizational structure, and financial goals, and 
submit evidence to show that it has the financial ability to remunerate the beneficiary and commence 
doing business in the United States. !d. 
When examining the Beneficiary's managerial capacity, we will look first to the Petitioner's 
description of the 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 to be performed by the Beneficiary and indicate whether such 
duties are either in an executive or managerial capacity. !d. 
In the instant matter, the Petitioner identified the Beneficiary's role in general terms, noting that he 
will supervise a "very crucial function of [the Petitioner], i.e., business development and oversight, 
[which] is essential to [the Petitioner's] business operations and key to the international market." At 
first glance, it appears that the Petitioner is claiming that the Beneficiary will perform duties as a 
function manager. The term "function manager" applies generally when a beneficiary does not 
( 
2 The Petitioner is referring to the internal Memorandum from Donald Neufeld, Associate Director, Service Center 
Operations, USCIS, HQ70/6.2.8, Determining Employer-Employee Relationship for Acijudication of H-1 B Petitions, 
Including Third-Party Site Placements (Jan. 8, 2010), https://www.uscis.gov/laws/policy-memoranda. 
Matter of A-M- Inc. 
supervise or control the work of a subordinate staff but instead is primarily responsible for managing 
an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. The term 
"essential function" is not defined· by statute or regulation. However, if a petitioner claims that a 
beneficiary will manage an essential function, a petitioner must clearly describe 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 a beneficiary's daily duties 
dedicated to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, a 
petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will 
manage the function rather than perform the duties related to the function. 
Here, although the Petitioner submits a lengthy description of the Beneficiary's proposed duties, the 
description is general and does not include a detailed description of the Beneficiary's proposed daily 
duties. The broadly described responsibilities offer little insight into what tlfe Beneficiary will 
actually do within the context of the petitioning business on a day-to-day basis during the first year 
of operations and beyond. We also note that the Petitioner does not articulate the nature of its 
"business development" function and has not identified any individual who will perform the daily 
duties of"business development" other than the Beneficiary. 
The Petitioner also stated that the Beneficiary will "develop and direct the operations of our U.S. 
subsidiary and take it to the direction envisioned in our strategic business plan." Having 
responsibility for providing oversight and directing operations does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial capacity within the 
meaning of section 101 (a)( 44) of the Act. By statute, eligibility for this classification requires that 
the duties of a position be "primarily" of a managerial nature. Section 101(A)(44)(A) of the Act. 
While the Beneficiary may exercise discretion over the Petitioner's and the managed companies' 
day-to-day operations and possess the requisite level of authority with respect to discretionary 
decision-making, here the Petitioner does not submit a description of duties that conveys an 
understanding of what actual tasks will engage the Beneficiary on a daily basis. 
For example, when allocating the time the Beneficiary would spend on various duties, the Petitioner 
stated that the Beneficiary will spend 40 percent of his time developing and implementing business 
plans, establishing goals and objectives, ensuring implementation of all business strategies, 
monitoring business indicators, and serving as general manager for all businesses that contract with 
the Petitioner to manage their operations. However, is not possible to ascertain what duties will 
engage the Beneficiary on a daily basis. 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. These general responsibilities do not convey the Beneficiary's actual 
tasks in the course of his daily routine. While the broad descriptions suggest that the Beneficiary 
would have the appropriate level of authority over the business, the record does not establish what he 
would actually do on a day-to-day basis after one year. The actual duties themselves will reveal the 
true nature ofthe employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
8 
Matter of A-M- Inc. 
In general, a position description alone is insufficient to establish that a beneficiary's duties would be 
primarily in a managerial or executive capacity, particularly in the case of a new office petition where 
much is dependent on factors such as the petitioner's business and hiring plans and evidence that the 
business will grow sufficiently to support the beneficiary in the intended managerial or executive 
capacity. The petitioner has the burden to establish that it will realistically develop to the point where 
it will require the beneficiary to perform duties that are primarily managerial or executive in nature 
within one year. Accordingly, the totality of the record must be considered in analyzing whether the 
proposed duties are plausible considering a petitioner's anticipated staffing levels and stage of 
development within a one-year period. See generally 8 C.F.R. § 214.2(1)(3)(v)(C). 
In this matter, the Petitioner's initial organizational chart showed that the Beneficiary would supervise 
the two businesses with which the Petitioner has signed management agreements; it did not show that 
the Petitioner would employ anyone other than the Beneficiary and its president/owner. In response to 
the Director's RFE, the Petitioner submitted a business plan showing that in addition to the 
Beneficiary, it planned to hire three employees in the first year of operations, an accountant/chief 
financial officer, an office manager, and a bookkeeper. The Petitioner does not allocate a significant 
portion of his time to supervising these individuals but seems to suggest that his role will be to manage 
them and/or their tasks. We also note that the Petitioner submitted position descriptions for these 
prospective employees in its motion, subsequent to the Director's initial denial decision. Upon review, 
these descriptions are broadly stated and do. not provide an understanding of these employees' 
prospective roles in the Petitioner's new office during the first year of operations. 
Moreover, the Petitioner did not provide an adequate explanation for the addition of new proposed 
staff to its organizational chart in response to the Director's RFE. The purpose of the RFE is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established. See 
8 C.F.R. § 103.2(b)(8). When responding to an RFE, the Petitioner cannot offer a new position to the 
Beneficiary, or materially change a position's title, its level of authority within the organizational 
hierarchy, or its associated job responsibilities. The Petitioner must establish that the position offered 
to the Beneficiary, when the petition was filed, merits classification as a qualifying position. See 
Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). Here, the addition of 
proposed employees to the Petitioner's organization is a material change to the petition, in what 
appears to be an effort to make_a deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Finally, a review of the totality of the evidence does not support the Petitioner's claim that it will be 
able to hire these three proposed employees within one year. The Petitioner has a guaranteed annual 
income of $100,000 based on the terms of its two signed management agreements and states that the 
Beneficiary will be paid $75,000. The Petitioner has not explained how it would pay the projected 
salaries of $180,000 to its proposed first-year hires out of an income of $100,000. Therefore, the 
record does not support the Petitioner's claim that these employees would be available to relieve the 
Beneficiary from providing .the Petitioner's services to the two companies with which it has signed a 
management agreement. 
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(b)(6)
Matter of A-M- Inc. 
The Petitioner also emphasizes that the Ben~ficiary as the de facto general manager of the two gas 
stations/mini marts will oversee, direct, and manage the managers of those businesses. The Petitioner 
asserts that the individuals employed by the gas stations/mini marts will perform all the pperational 
tasks of those businesses thereby relieving the Beneficiary from performing non-qualifying duties.3 It 
is not clear from the record, whether the Petitioner is describing the Beneficiary's duties, as those 
duties relate to the managed business, in terms of a personnel manager or a function manager. Thus, 
we cannot ascertain the nature of the Beneficiary's role based on the current record. We observe that 
simply claiming that a beneficiary will manage or oversee the activities of other individuals or 
functions is insufficient, instead a petitioner must provide a detailed description of the beneficiary's 
duties. As discussed above, the Petitioner has not submitted probative, detailed information such that 
we can ascertain the Beneficiary will perform primarily managerial duties within one year of approval 
of the petition. 
Moreover, upon review of the employees and the payroll records submitted for the two managed gas 
stations/mini marts, we find that the payroll records do not corroborate the number of employees on 
the' organizational chart. Additionally, some of the employees, based on th~ payroll records work 
part-time. From the submitted evidence, it appears that the gas station/mini marts are understaffed and 
the Beneficiary would be required to participate in the day-to-day non-qualifying duties. For example, 
the manager of the location worked only ten hours during the two-week pay period the 
Petitioner submitted as evidence of his employment. We also observe that the Petitioner initially 
stated that the Beneficiary will work at the location. Thus, if the manager of this gas 
station/mini mart is working a minimal amount of time, the Beneficiary's services to the managed 
company would likely not be limited to the claimed direction and oversight duties, but would 
realistically extend to the day-to-day non-managerial operations of the business. The record here is 
insufficient to establish that the managers of either store will provide the full-time supervision or 
management of their respective employees. 
Upon review of the totality of the record, the Petitioner has not presented a consistent, credible picture 
of the Beneficiary's actual duties within the organization or in relation to the managed companies. 
Thus, we cannot ascertain whether the Petitioner will be able to realistically support a managerial 
position within one year of the approval of the petition. 
3 The Petitioner on motion and appeal asserts that the managed companies' employees must be considered its employees 
pursuant to USCIS policy. We do not reach this question, except to note that based on our review of the factors listed in 
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) ("Darden") and Clackamas Gastroenterology 
Assocs. P.C. v. Wells, 538 U.S. 440, 445, 447 & n.5 (2003) the Petitioner did not establish that the managed companies' 
employees are the Petitioner's employees. However, the employees of a managed company, if properly documented and 
their duties detailed, may be used to demonstrate that a beneficiary would be relieved from performing non-qualifying 
duties. In this matter, however, the Petitioner has not adequately described the Beneficiary's actual role within its 
organization, has not included a consistent, cogent claim of the Beneficiary's duties as either a proposed personnel or 
function manager, and has expanded the Petitioner's size to create a different structural hierarchy in response to the 
Director's RFE. 
10 
(b)(6)
l 
Matter of A-M- Inc. 
We emphasize that in a petition for a new office, we review not only the description of the 
Beneficiary's proposed duties but also the Petitioner's anticipated organizational structure, its 
financial goals, and the size of the U.S. investment. We have reviewed the Petitioner's expectation 
that it will earn $360,000 during its first year of operations, based on the two management 
agreements already signed and the potential for additional management agreements based on its 
market research analysis and its personal relationship with its minority owner, who states that he 
owns additional gas stations/mini marts.4 As referenced above, we have reviewed the two 
management agreements submitted and note that agreed to pay an annual fee of $25,000 
to the Petitioner for services as well as 51 percent of net income in excess of $75,000. 
in its management agreement with the Petitioner, agreed to pay an annual fee of $75,000 to the 
Petitioner for services as well as 51 percent of net income in excess of $75,000. Upon review of 
2013 Form 1120S and 2014 Form 1120S, these documents do not 
include evidence that either company is capable of providing the initial annual fee, and on motion, 
the Petitioner's vice president acknowledged that any additional fees beyond the agreed management 
(ee are "not guaranteed but possible" if new management is able to "revitalize the operations." The 
record does not include sufficient documentary evidence substantiating the Petitioner's potential 
income and the realistic corroboration of the Petitioner's financial goals. 
We also note a discrepancy in the Petitioner's statements regarding the U.S. investment. The 
Petitioner in its business plan claims that the foreign entity has supplied $75,000 to the Petitioner to 
cover the initial start-up and operations of the company. The Petitioner also uses this figure on the 
balance sheet provided as part of its market analysis. However, the record shows that the Petitioner 
h~s received only $54,955 in funds from the foreign entity's owner. This discrepancy raises further 
questions regarding the Petitioner's ability to commence operations in the United States. 
Upon review of the totality of the record, including this discrepancy, the lack of probative evidence 
substantiating the Petitioner's financial goals, and the inconsistent evidence provided regarding the 
Petitioner's organizational structure, we do not find that the Petitioner has submitted sufficient 
probative, consistent evidence that it could support the Beneficiary in a managerial position within 
one year of approval. The regulations require the Petitioner to present a credible picture of where 
the company will stand in one year, and to provide sufficient evidence in support of its claim that the 
company will grow to a point where it can support a managerial or executive position within that 
time. The record here does not include this evidence. 
4 
The Petitioner claimed on motion that its actual guaranteed income would be $150,000 to $225,000 based on the three 
additional locations that its minority owner claims to own. However, the record here does not include evidence that 
these additional gas station/mini marts exist, that additional management agreements would be executed, or that the 
additional locations would be capable of paying the fees for the management of the location(s) . 
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(b)(6)
Matter of A-M- Inc. 
III. SUFFICIENT PHYSICAL PREMISES 
Upon review and beyond the decision of the Director; we also find that the Petitioner has not 
established that it has secured sufficient physical premises to house the new office, as required by 
8 C.F.R. § 214.2(1)(3)(v)(A). 
The Petitioner filed the Form I-129 on May 6, 2015. On the Form 1-129, the Petitioner states that the 
Beneficiary will be employed at Pennsylvania, which is the 
addre·ss of a As noted, the Petitioner's initial organizational chart and 
initial evidence also indicated that the Beneficiary would be the Petitioner's only payroll employee. 
The Petitioner did not submit a copy of a lease agreement or other evidence related to its physical 
premises at this address. 
In the Director's RFE issued on May 16,2015, the Director noted the lack of information concerning 
the worksite and requested that the Petitioner submit evidence to establish that it had secured 
sufficient physical premises for its business, including evidence such as a lease or contract between 
the U.S. entity and the property owner. 
In response, the Petitioner submitted a copy of a lease agreement for premises located at 
Pennsylvania. The lease is dated and signed May 4, 2015. 
The Petitioner does not explain why the lease was not submitted initially or why the Beneficiary's 
work location was initially identified as the gas station/mini 
mart. The submitted lease indicated that 
the Petitioner agreed to pay, upon signing the lease, the first month lease fee of $750 and one month 
of the lease fee as a security deposit. An addendum to the lease agreement, states that the lease is 
valid as of the date it is signed but that the actual date the Petitioner will occupy the premises is 
contingent upon the approval of the Beneficiary to obtain work authorization in the -United States. 
The Petitioner's business plan, also submitted in response to the RFE, identifies the company's 
address as Pennsylvania. 
Upon review, the Petitioner did not establish that it had secured sufficient physical premises to house 
the new office as of the date of filing. Proof of physical premises is required initial evidence for a 
new office petition. See 8 C.F.R. § 214 .. 2(1)(3)(v)(A). A petitioner must establish that it is eligible 
for the requested benefit at the time of filing the petition. See 8 C.F.R. § 103.2(b)(l). 
When a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is ready to commence doing business immediately upon approval. At the time of 
filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has 
acquired sufficient physical premises to commence business, that it has the financial ability to 
commence doing business in the United States, and that it will support the beneficiary in a 
5 This is the address of the corporate owner of the gas station/mini mart and it is also the address used by the 
vice president/minority owner of the Petitioner . 
12 
Matter of A-M- Inc. 
managerial or executive position within one year of approval. See generally 8 C.F.R. 
§ 214.2(1)(3)(v). 
Here the evidence of record is insufficient to establish that the Petitioner had secured sufficient 
physical premises independent of the location of one of its client gas stations. Upon review of the 
Petitioner's bank records, the bank records show that four checks were written in the month of May, 
in the amounts of$325, $500, $1,225, and $290. The record does not include documentary evidence 
that any of these checks were provided for the first month's rent and security deposit under the terms 
of the submitted lease agreement. Accordingly, the Petitioner has not submitted evidence of a valid 
lease ~ith sufficient physical premises to house the new office. , 
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, 249 (Reg'l Comm'r 
1978). Without evidence of a valid lease, the Petitioner has not established eligibility for a new 
office petition. For this additional reason, the petition will be denied. 
IV., CONCLUSION 
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 with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-M-Inc., ID# 11868 (AAO Oct. 12, 2016) 
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