dismissed L-1A Case: Buttons And Accessories

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: WAC 08 056 50645 Office: CALIFORNIA SERVICE CENTER Date: OCT 0 1 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101 (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. 
<4 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 08 056 50645 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of 
"marketing manager" to open a new office in the United States as an L-IA nonimmigrant intracompany 
transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 
1101(a)(15)(L). The petitioner, a corporation formed under the laws of the State of Delaware, is described as 
being in the buttons and accessories business. 
The director denied the petition concluding that the petitioner failed to establish that the United States 
operation will support an executive or managerial position within one year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the petitioner has established 
that the beneficiary will primarily perform qualifying duties within one year. 
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. 3 214.2(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 himher 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. 
WAC 08 056 50645 
Page 3 
In addition, the regulation at 8 C.F.R. 3 214.2(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 (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 stmcture, 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 primary issue in this proceeding is whether the intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial position. 
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 
WAC 08 056 50645 
Page 4 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or fimction 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 claims in a letter dated December 3, 2007 that the beneficiary will "undertake a temporary 
assignment at the U.S. California branch company, in order to apply his executive and managerial expertise to 
establish and expand the branch company." The petitioner also claims that the beneficiary will be the 
"marketing manager" and that he will be responsible for "warehousing, distribution and marketing." The 
record is otherwise devoid of evidence addressing the scope, nature, staffing, or organization of the proposed 
United States operation. 
On December 27, 2007, the director requested additional evidence. The director requested, inter alia, a letter 
from the foreign employer explaining the need for the new office in the United States, including an 
explanation as to how the proposed enterprise will, within one year, grow to support a managerial or 
executive position; an associated feasibility study; a business plan; and minutes from the meetings of the 
foreign employer addressing the creation of the United States operation. 
In response, the foreign employer submitted a letter dated October 12, 2007 in which it claims that the United 
States operation was formed as a result of its planned acquisition of a business pertaining to the manufacture 
of plastic buckles, Duraflex, on January 2, 2008. The new operation will allegedly "extend [its] marketing 
reach" and "be responsible for the marketing [and] service of customers who design backpacks using [the] 
Duraflex plastic buckles." The seller of the plastic buckle operation, National Molding Corporation, will 
allegedly become a licensee, which will manufacture and distribute the buckles within the United States, 
while the petitioner markets the products on a commission basis. However, the record is devoid of evidence 
pertaining to this purported acquisition of the Duraflex buckle business or to the petitioner's claimed 
agreement with National Molding Corporation to market the products. 
WAC 08 056 50645 
Page 5 
The foreign employer also claims that the petitioner will receive an "initial investment" of "$600,000.00, 
which will be used to purchase the Duraflex operation from National Molding Corporation." Thereafter, the 
foreign employer projects that the petitioner will receive approximately $60,000.00 per month in sales 
commissions. However, the record is devoid of evidence corroborating these projections and does not include 
a copy of any agreements or other documents pertaining to this purported contract with National Molding 
Corporation. 
The petitioner also submitted documents titled "feasibility study" and "business plan" in which the petitioner 
describes the proposed staffing of the United States operation for the first and second year of operations as 
follows: 
[The beneficiary] is to complete the setup of the US office in Southern California. No hiring 
is planned at this time, however, if the office setup is completed earlier, we might look into 
hiring one-two marketing staff soon. At the mean time, [the beneficiary] will manage [an 
east coast account manager], and together, they will handle the tradeshows (Outdoor Retailer 
Summer & Outdoor Retialer [sic] Winter) as a team. After the new marketing personnel is 
hired in South Carolina, [the east coast account manager] wi1I be able to concentrate his effort 
on the sales effort in [elast coast accounts, still report to [the beneficiary] on his account 
activities. 
2nd-3rd Year Plan 
We plan to hire about two additional marketing staffs in the southern California office. The 
two new marketing staff is to report to and assist [the beneficiary] in organizing marketing 
activities that promotes [sic] the Duraflex brand in the US, such as the trade show 
organization, website, catalogs.. .etc. 
will remain the President of the company overseeing everything. Mr. 
the East Coast Account Manager reporting to [the beneficiary] still. 
On February 5, 2008, the director denied the petition concluding that the petitioner failed to establish that the 
United States operation will support an executive or managerial position within one year. The director also 
noted that the petitioner did not provide "adequate supporting documentation" such as a letter from the 
foreign employer explaining the need for the new office, a feasibility study, a business plan, and minutes of 
the foreign employer. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval. Counsel also claims the petitioner did submit the documents that 
the director claims were omitted from the response to the Request for Evidence. 
Upon review, counsel's assertions are not persuasive. 
WAC 08 056 50645 
Page 6 
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. 5 214.2(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 
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. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target marketfprospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials andlor 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. 
For several reasons, the petitioner in this matter has failed to establish that the United States operation 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 or executive who will primarily perform qualifying duties. The 
petitioner has failed to establish that the beneficiary will primarily perform qualifying duties after the 
petitioner's first year in operation; has failed to establish that the beneficiary will be relieved of the need to 
perform the non-qualifying tasks inherent to the operation of the business by a subordinate staff within the 
petitioner's first year in operation; and has failed to sufficiently and credibly describe the nature, scope, and 
financial goals of the new office. 8 C.F.R. 5 214.2(1)(3)(v)(C). 
As a threshold matter, it is noted that, contrary to the director's statement in her decision, the petitioner's 
response to the Request for Evidence contains copies of a letter from the foreign employer explaining the 
WAC 08 056 50645 
Page 7 
need for the new office, a document titled "feasibility study," a document titled "business plan," and what 
appear to be minutes of the foreign employer. Accordingly, to the extent the director's comments indicate that 
these documents were missing from the record, these comments are withdrawn and the AAO will review the 
documents in its consideration of the appeal. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that 
the AAO reviews appeals on a de novo basis). However, to the extent the director's comments were simply an 
indication these documents were not "adequate," these comments will not be disturbed because, as further 
explained below, the AAO agrees that the petitioner has failed to establish that it will be able to support a 
primarily managerial or executive employee within one year. 
First, the job description for the beneficiary fails to credibly 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. 4 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties that will be performed by the beneficiary and indicate whether such 
duties will be either in an executive or managerial capacity. Id. 
In this matter, the petitioner has provided a vague description of the beneficiary's duties, which generally 
indicates that the beneficiary will primarily perform non-qualifying operational, administrative, or first-line 
supervisory tasks after the petitioner's first year in operation. For example, the petitioner claims that, after the 
first year in operation, the beneficiary will attend trade shows and will supervise between one and three 
workers who will market Duraflex buckles. However, neither of these tasks is a qualifying managerial or 
executive duty. To the contrary, sales and marketing tasks, and the first-line supervision of sales and 
marketing personnel, are operational or first-line supervisory tasks. Furthermore, the petitioner fails to 
address who, other than the beneficiary, will perform the non-qualifying administrative tasks inherent to the 
operation of a small business, e.g., correspondence, accounts payable, answering the telephone, invoicing, and 
banking. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972). 
Accordingly, it appears more likely than not that the beneficiary will be primarily performing non-qualifymg 
tasks after the first year in operation. An employee who "primarily" performs the tasks necessary to produce 
a product or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 
19 I&N Dec. 593, 604 (Cornm. 1988). A managerial or executive employee must have authority over day-to- 
day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees 
are professionals. Section 10 1 (a)(44)(A) of the Act; see also Matter of Church Scientology International, 19 
I&N Dec. at 604. The record is also devoid of evidence establishing that the proposed subordinate employees 
will be "professionals." Given the size and nature of the vaguely described business, it is more likely than not 
that the beneficiary and his proposed subordinate employees will all primarily perform the tasks necessary to 
the operation of the business. See generally Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 1313 (9th Cir. 2006). 
WAC 08 056 50645 
Page 8 
Accordingly, the petitioner has failed to establish that the beneficiary will be primarily employed in a 
managerial or executive capacity within one year, and the petition may not be approved for that reason. 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year, because the petitioner has failed to sufficiently describe the nature, 
scope, and financial goals of the new office. 8 C.F.R. 4 214.2(1)(3)(v)(C)(l). As explained above, the 
petitioner claims that the United States operation was formed as a result of its planned acquisition of a 
business pertaining to the manufacture of plastic buckles, Duraflex, on January 2, 2008. The new operation 
will allegedly "extend [its] marketing reach" and "be responsible for the marketing [and] service of customers 
who design backpacks using [the] Duraflex plastic buckles." The seller of the plastic buckle operation, 
National Molding Corporation, will allegedly become a licensee, which will manufacture and distribute the 
buckles within the United States, while the petitioner markets the products on a commission basis. 
Thereafter, it is projected that the petitioner will receive approximately $60,000.00 per month in sales 
commissions. 
However, upon review, the record is devoid of evidence pertaining to this purported acquisition of the 
Duraflex buckle business or to the petitioner's claimed agreement with National Molding Corporation to 
market the products. The record is also devoid of evidence corroborating any of its financial projections. The 
record also does not specifically describe the operation's marketing strategy, and the petitioner fails to submit 
evidence of having established any business relationships or identified any potential customers. The record 
does not contain any independent analysis, contracts, or list of business contacts. Absent a detailed, credible 
description of the petitioner's proposed United States business operation which is supported by evidence, it is 
impossible to conclude that the proposed 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 or executive 
who will primarily perform qualifying duties. Once again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972). 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. 5 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are 
qualifying organizations. 
The regulation at 8 C.F.R. § 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 "qualifying 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 this section" and "is or will be doing 
business." "Affiliate" is defined in part as "[olne of two subsidiaries both of which are owned and controlled by 
the same parent or individual." 8 C.F.R. $2 14.2(1)(1)(ii)(L)(l). 
WAC 08 056 50645 
Page 9 
In this matter, the petitioner claims to be 100% owned and controlled by Duraflex Holding Ltd. of the British 
Virgin Islands. The petitioner also submitted a chart which indicates that Duraflex Holdings Ltd. is owned by 
UTX Group Holdings Ltd. which, according to this chart, also owns and controls the beneficiary's claimed 
foreign employer in Hong Kong. However, the record is devoid of evidence corroborating these claims. Once 
again, going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 
1972). The record does not contain stock certificates or other organizational documents which establish 
ownership and control of either entity. Furthermore, the director specifically requested evidence establishing 
ownership and control of the foreign employer. While the petitioner submitted a financial report and an 
annual return for the foreign employer, the petitioner failed to submit evidence which establishes its 
ownership and control. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 8 103.2(b)(14). The non-existence or other unavailability of 
required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). 
Accordingly, the petitioner has failed to establish that it and the foreign employer are qualifying 
organizations, and the petition will not be approved for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (noting that the AAO reviews appeals on a de novo 
basis). 
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 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. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.