dismissed L-1A Case: Business Management

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
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File: EAC 07 064 51417 Office: VERMONT SERVICE CENTER Date: OCT @ 3 2008 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 07 064 5 14 17 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant 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 employ the beneficiary in the position of managing 
director to open a new office in the United States as an L-1A nonimmigrant intracompany transferee pursuant 
to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The 
petitioner is a limited liability company, which was organized in the State of Pennsylvania. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to 
establish that the beneficiary was employed abroad in an executive or managerial capacity; and 2) the 
petitioner failed to establish that it would support a managerial or executive position within one year of filing 
the present 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 asserts that the director's decision is 
erroneous with regard to both grounds. A full discussion of counsel's arguments will be provided below. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1(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. $ 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 hirnher 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. 
EAC 07 064 51417 
Page 3 
In addition, the regulation at 8 C.F.R. 8 214.2(1)(3)(~) states 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, 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 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 (I)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(1) 
 The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial 
ability of the foreign entity to remunerate the beneficiary and 
to commence doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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 
EAC 07 064 51417 
Page 4 
(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. 3 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 two primary issues in this matter concern the beneficiary's employment capacity. The first issue is 
whether the beneficiary was employed abroad in a qualifying managerial or executive capacity, and the 
second issue is whether the intended United States operation, within one year of the approval of the petition, will 
support the beneficiary in an executive or managerial position. 
In support of its Form 1-129, the petitioner provided a letter dated January 3, 2007 in which brief descriptions 
of the beneficiary's foreign and U.S. positions were provided. With regard to the beneficiary's foreign 
employment, the petitioner stated that the beneficiary oversees the company's long- and short-term 
investments worldwide; plans, develops, and establishes the company's business objectives; and remains 
responsible over the company's accounting systems and procedures, production reporting systems, and 
oversees sales and exports. 
With regard to the beneficiary's proposed position with the U.S. entity, the petitioner stated that the 
beneficiary, as president and chief executive officer, would report to a board of directors. However, the 
petitioner claimed that the beneficiary would maintain broad discretionary authority "for the overall executive 
direction, control and management of all [of the petitionerj's activities." The petitioner stated that the 
beneficiary would plan, develop, and establish policies and objectives, coordinate functions between 
divisions, and establish responsibilities for attaining company objectives. The petitioner also stated that the 
beneficiary would review financial reports and evaluate the performances of other executives. The petitioner 
provided a business plan in which it discussed plans to hire a part-time sales representative and an expanded 
administrative staff. It is unclear, however, whether the petitioner planned to hire new employees at the end 
of its first year of operation.' 
I 
 See page 20, section 6.0 of the petitioner's Official Business Plan. 
EAC 07 064 51417 
Page 5 
Upon review of the submitted documentation, the director determined that additional evidence and 
information was needed in order to determine whether the petitioner was eligible for the immigration benefit 
sought. Accordingly, the director issued a request for additional evidence (WE) dated January 29,2007. The 
petitioner was instructed to illustrate the foreign entity's management and personnel structures and to specifjr 
the job titles and job duties of the beneficiary's subordinates. The petitioner was also instructed to provide a 
comprehensive description of the beneficiary's proposed job duties, explaining how such duties are primarily 
managerial or executive. The petitioner was asked to disclose who will ultimately relieve the beneficiary 
from having to primarily perform the petitioner's daily non-qualifying tasks beyond the petitioner's first year 
of operation. 
In response, counsel provided a letter dated April 25, 2007 in which the director's various points of interest 
were acknowledged. With regard to the beneficiary's position with the foreign entity, counsel stated that the 
beneficiary oversees the work of three managerial employees: a finance and accounting manager, who 
supervises two subordinates; a production planning and control manager, who oversees four subordinates; and 
a marketing manager, who executes marketing programs, but appears to have no subordinate employees. 
Counsel stated that the beneficiary's time gets allocated differently depending on whether an order is for a 
new or repeating customer. In the case of the latter, counsel claimed that three fourths of the beneficiary's 
time is spent on executive duties, which were not specified. If, however, the order is for a new customer, 
counsel stated that the beneficiary spends an equal amount of time on executive duties as is spent on non- 
executive duties. There is no indication as to the proportion of new versus repeating orders. 
The petitioner also provided the foreign entity's organizational chart, illustrating a multi-tiered management 
structure in which the beneficiary is depicted as the third from the top of the hierarchy with three managerial 
employees as his direct subordinates. It is noted that while the chart lists a total of fourteen position titles, 
several employees fill more than one position and at least one position, i.e., advertising and promotion 
supervisor, appears to be an unfilled position. It is further noted that while the petitioner previously claimed 
that the foreign entity employs a total of 50 people, the organizational chart names only nine different 
individuals all of whom possess either managerial or supervisory job titles. It is therefore unclear who within 
the foreign entity actually performs the mundane non-qualifying tasks necessary to run the daily operation. In 
a separate letter dated March 1, 2007, submitted by a representative of the foreign entity, the following job 
description was provided: 
As [dlirector, [the beneficiary] manages the overall daily operations of the company in terms 
of accounting systems and procedure, receiving orders, productions reporting systems, quality 
control[,] and shipment and exporting. In addition, [he] handles customer complaints and 
communications and finds solutions for customer problems. He also formulates an annual 
business plan and organizes and controls the business operations. Basically, [the beneficiary] 
is responsible for most of the executive and managerial functions of [the foreign entity]. [He] 
is also responsible for establishing distribution networks. 
With regard to the beneficiary's proposed employment, counsel stated that the beneficiary currently generates 
all of the petitioner's sales leads. He also stated that the beneficiary oversees all sales and shipping 
transactions and supervises two employees, including a director, who oversees the petitioner's marketing and 
EAC07064 51417 
Page 6 
financial goals, and an executive secretary, who answers phones, maintains the customer base, and provides 
other customer-related services. Counsel further claimed that it is the petitioner's belief that it will increase its 
sales base such that it can afford to hire a sales manager within one year, thereby relieving the beneficiary 
fiom having to perform non-managerial functions. In a separate letter dated April 9, 2007, the petitioner's 
director projected that the petitioner would be able to hire a part-time sales representative at the end of its first 
year of operation. 
In a decision dated December 18, 2007, the director denied the petition based on the conclusion that the 
petitioner did not establish that the beneficiary was employed abroad or that he would be employed in the 
United States (within one year of the petitioner's first year of operation) in a position that is within a 
managerial or executive capacity. The director noted that the petitioner failed to provide a detailed 
description of the beneficiary's proposed position within the U.S. entity and did not provide sufficient 
information regarding the beneficiary's subordinates abroad such that IT would enable U.S. Citizenship and 
Immigration Services (CIS) to conclude that the beneficiary was employed abroad in a position that primarily 
involved tasks within a managerial or executive capacity. 
On appeal, counsel asserts that the petitioner has established that the beneficiary performed abroad and would 
perform in the United States, within one year of petition approval, job duties that are managerial or executive. 
Upon review, counsel's assertions are not persuasive. 
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. tj 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 fiom the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andlor services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Cornrn. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target market/prospective customers of the new 
commercial enterprise. The plan should list the required pennits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
EAC 07 064 51417 
Page 7 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefor. Most importantly, the business plan must be credible. 
Id. 
In the present matter, the petitioner's business plan falls short of the instructional guidelines discussed above, 
particularly in its lack of specific projections regarding prospective personnel. With the exception of the 
petitioner's projections regarding the growth in salaries of the current employees and its anticipation of hiring a 
single part-time sales representative, the petitioner does not explain how it plans to relieve the beneficiary fiom 
having to primarily provide the essential non-qualifjmg services of its daily business. It is unrealistic to assume 
that the hiring of one part-time sales representative will accomplish the type of organizational growth that would 
advance the petitioner to a stage of development wherein the beneficiary's position would be transformed to one 
that would primarily involve the performance of duties of a qualifjrlng managerial or executive nature. That 
being said, the petitioner has not defined with any specificity what actual job duties the beneficiary would be 
expected to perform at the end of the petitioner's first year of operation, what job duties the support personnel 
would perform, and how the petitioner would enable the beneficiary to allot the primary portion of his time to 
performing managerial or executive level job duties. 
With regard to the beneficiary's position abroad, the record simply lacks sufficient evidence to establish that the 
duties performed were primarily withn a managerial or executive capacity. While the petitioner has indicated 
that the beneficiary assumed key responsibilities such as managing accounting systems, receiving orders, and 
overseeing shipping and quality control, these broad job responsibilities do not convey a meaninghl 
understanding of the specific tasks the beneficiary carried out on a daily basis in his role as a manager. The AAO 
notes that the beneficiary's position title does not establish the nature of the job duties the beneficiary primarily 
performed during his employment abroad. Rather, the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). Although the petitioner provided the foreign entity's organizational chart depicting the beneficiary's 
placement towards the top of the company's hierarchy, the chart does not explain who actually performed the 
non-qualifying tasks of the foreign entity, nor does it identify, by name or position title, the fifty employees that 
purportedly make up the foreign entity's personnel structure. Additionally, at least two of the employees listed in 
the organizational chart occupy positions in more than one tier within the foreign entity's hierarchy, thereby 
suggesting that some of the employees are essentially managing themselves, as they are both the manager and the 
employee being managed. 
For all the reasons discussed above, the AAO finds that the petitioner in ths matter has failed to establish that the 
beneficiary was employed abroad in a qualifying capacity, or that the United States operation will succeed and 
rapidly expand as it moves away fiom the developmental stage to full operations, where there would be an 
actual need for the beneficiary to primarily perform qualifying managerial or executive level duties. 
EAC 07 064 5 14 17 
Page 8 
Additionally, while not previously addressed in the director's decision, the record indicates that this petition 
does not warrant approval on at least one other ground. Specifically, the record does not show that the 
petitioner and the beneficiary's foreign employer are qualifying organizations. 
The regulation at 8 C.F.R. 8 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. 8 214.2(1)(l)(ii)(G) defines a "qualifymg organization" as a firm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of ths section" and "is or will be doing 
business." "Subsidiary7' is defined in pertinent part as a corporation "of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity." 8 C.F.R. 
 214.2(1)(l)(ii)(K). 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
In this matter, the petitioner has indicated that it is 100% owned by 
 and is therefore the foreign 
entity's s~bsidiary.~ However, the record lacks documentation to corroborate this claim. While the petitioner 
submitted a translated document entitled "Deed of Incorporation of Limited Liability Company," in which 
Article 4 lists the foreign entity's three owners and their respective ownership shares, there is no 
documentation submitted to establish who owns the U.S. enti . Rather, in support of the RFE, the petitioner 
provided a fund transfer application showing that was the originator of a transaction that 
transferred $25,000 to the U.S. entity.3 However, there is no indication that this document in any way 
represented the transfer of ownership of the U.S. entity to particularly in light of the fact that the 
fund transfer took place on April 13,2007, which is approximately four months after the Form 1-129 had been 
filed. It is noted that, going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As the petitioner has 
not provided documentation to support the claim regarding its ownership, the AAO cannot find that a 
qualifying relationship exists between the U.S. entity and the beneficiary's foreign employer. 
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), affd, 345 F.3d 683 
2 
 L Classification Supplement to Form 1-129, section 1, item 9. 
3 
 Exhibit 9 of the petitioner's response to the RFE. 
EAC 07 064 51417 
Page 9 
(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). Therefore, based on the additional ground for ineligibility discussed above, this 
petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.