dismissed L-1A Case: Car Wash

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 28,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a car wash business, seeks temporarily employ the Beneficiary as a CEO 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 in an executive or 
managerial capacity. · · 
The Director, California Service Center, denied the petition. The Director concluded that the new 
office would not support an executive or managerial position within one year. 
The matter is now before us on appeal. On appeal, the Petitioner submits additional evidence and a 
brief disputing the denial and addressing the Director's adverse findings. 
! 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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. § 214.2(1)(3) states that an individual petition filed on Form I-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 
(1)(1)(ii)(G) ofthis section. 
Mattf}r of A-S- Inc. 
(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 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, ~upported by information 
regarding: 
(1) The proposed nature ofthe office describing the scope of the entity, its 
organizational structure, and its financial goals; 
I 
(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. 
2 
Malfer of A-S- Inc. 
) 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The primary issue to be addressed is whether the Petitioner established that its new office will 
support will support an executive or managerial position within one year of the approval of the 
petition. 
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 ofthe supervisor's supervisory duties unless the employees supervised are professional." 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 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 go~ls 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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the 
3 
Matter of A-S- Inc. 
organization, in light of the overall purpose and stage of development of the organization. Section 
101(a)(44)(C) ofthe Act. ' 
A. Evidence of Record 
The Petitioner filed the Form 1-129 on October 28, 2015. On the Form I-129, the Petitioner 
indicated that it has 40 current employees in the United States and did not state an estimated gross 
annual income. In a letter submitted in support of the initial petition, the Petitioner stated the 
following regarding its business model: 
Our plan is to open an easy business first in order to survive in the U.S. market. 
During this period, [the Beneficiary] will explore the U.S. market, and search for land 
in order to do construction work in the U.S. in the future. The parent company 
invested $4,500,000 to start the business in the U.S. So far, we purchased a car wash 
company. We currently have 40 employees, and established service,network through 
various business activities including set up website and advertise for our business. 
As the CEO, the Petitioner stated that the Beneficiary will be responsible for the following duties: 
Formulating short- and long-term policies, goals, strategies, procedures, and 
programs to ensure the continuous growth and profitability of the car wash business 
(5%); 
Planning and directing the company's financial; governance, and commercial 
operations at the highest level of management, with limited review from the Board of 
Directors, and with the help of subordinate managers and professionals (5%); 
Exploring and identifying the need for further investment in car washing equipment 
and reporting to shareholders (5%); 
Coordinating international strategic planning with the Moroccan parent company 
(5%); 
Negotiating with banks and suppliers of services to ensure the most favorable terms 
and conditions (5%); 
Coordinating the setting of accurate budgets for administration and marketing of car 
wash operations and monitoring these on a biweekly basis (5%); 
Hiring and overseeing the company's management team and delegating supervision 
to this team of subordinate staff (5%); 
Legally representing the company, having authority to bind it in contract and acti~g 
as the corporate bank account signatory (5%); 
Determining with shareholders a marketing and promotion strategy and, if necessary, 
entering into agreement with a marketing company (5%); 
Ensuring managers and staff members maintain high business standards (3%); 
Supervising and exercising discretion over subordinate employees and subcontractors 
who perform the day-to-day work with authority to hire and fire the employees (7% ); 
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(b)(6)
Matter of A-S- Inc. 
Providing overall leadership to the car wash team, providing training/development 
opportunities, monitoring performance, and providing coaching/counseling on 
frequent basis (5%); 
Monitoring staff performance through annual evaluations and ensuring highest level 
of customer/client service (1 0%); 
Analyzing the car wash industry and marketplace to identify new opportunities and 
the introduction of new services to be provided by [the Petitioner] (5%); 
Analyzing strategic alliances 'that will contribute to [the Petitioner's] growth and 
profitability (5%); 
Working with real estate professionals to identify land for purchase (5%); 
Obtaining site control, reviewing materials related to the purchase of the land, and 
monitoring deadlines in the land purchase contract (5%); 
Interfacing with local,' state and national public officials (5%); and, 
Working in conjunction with architects to review design development and 
construction documents to ensure conformance with the development scope and 
defined construction standards specifications (5%); 
The organizational chart submitted by the Petitioner contained employees' names, but did not 
include any other details 
such as job titles. The chart shows a ~ubordinate managerial employee, 
reporting directly to the Beneficiary. Three subordinate managerial positions are 
reporting to A total of 30 employees are reporting to the management structure~ 
The Petitioner also subm*ed a list of 39 employees including their social security numbers, gender, 
salary, hourly rate, and federal filing status. Only two employees, and 
are listed as salaried employees. The remainder of the employees are listed as hourly 
- workers. A third employt?e, showed a higher hourly rate than the remainder of the 
employees. The Beneficiary's direct subordinate, was not listed on the employee 
sheet. 
The business plan, submitted with the Form I-129, indicated that in addition to the car wash 
operations, it "aims to become a premier regional real estate development firm that develops and 
markets commercial and multifamily real estate properties." The plan stated that the Petitioner is 
working with an outside group to perform real estate due diligence in connection with the purchase 
of a land parcel for a residential real estate project. The Petitioner stated it expects to acquire the 
parcel by the "end of December 2016." 
The Petitioner claimed it has an initial fund of $5,305,464.35 for purchase of the car wash as well as 
further real estate development projects. After the car wash purchase, the Petitioner claimed it had 
$805,464.35 remaining cash on hand. The business plan included a projected profit and loss 
statement. The statement did not clarify what profit, if any, would be reserved for the real estate 
development business. 
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Matter of A-S- Inc. 
In the business plan, the Petitioner stated it anticipates on hiring 41 positions by end of the first year. 
The Petitioner provided position descriptions for the CEO/president, administrative/operations 
manager, car wash manager (part-time), car detailing manager, and boutique manager (part-time). 
The Director issued a request for additional evidence (RFE) in which she requested, in relevant part, 
additional information to show how the new office would support an executive or managerial 
position within one year of the petition's approval. The Director specifically requested information 
regarding the size ofthe U.S. investment and the financial ability of the foreign entity to remunerate 
the Beneficiary and continue doing business in the United States. 
In response to the RFE, the Petitioner provided the same position description for the Beneficiary as 
provided in the initial petition. Regarding staffing, the Petitioner sated that in "the first year, the 
company planned to hire 25 full-time employees, including 1 CEO, 1 General Manager, 3 
Department Mangers and 20 employees." The Petitioner further stated that the "US company 
currently have 41 employees." The Petitioner provided an organizational chart showing employee 
names and job-titles. The Petitioner also provided a second document with position descriptions for 
each of the positions. The organizational chart listed 41 employees. 
Regarding the investment in the United States entity, the Petitioner stated in response to the RFE that 
the parent company transferred the initial investment of $5,300,000.00 to the Beneficiary's personal 
bank account, and the Beneficiary then transferred the amount to the Petitioner's account. The 
Petitioner stated that the reason for this transaction flow is "[ d]ue to foreign currency transfer 
restriction in Morocco." As evidence of the transfers, the Petitioner provided a "map of Path of 
Investment fund" along with wire transfer receipts and bank account statements. 
The Director denied the petition, concluding that the Petitioner did not establish that it would support 
a managerial or executive position within one year of the approval of the petition. In denying the 
Petition, the Director determined that the Petitioner provided an overly generalized description of the 
Beneficiary's proposed duties and stated that the Beneficiary will be involved in the day-to-day non­
qualifying duties of the car wash. The Director noted that the Petitioner did not indicate that it 
would hire staff to operate the real estate project. Finally, the Director found that the funding was 
insufficient to purchase property and develop multi-family residences as stated in the business plan. 
On appeal, the Petitioner asserts that the Director mischaracterized the facts and evidence submitted. 
The Petitioner emphasizes that the Beneficiary has subordinate managers to relieve him of non­
qualifying duties, stating that there are five department managers under the Beneficiary's control. 
The Petitioner stated that the car was income will be qsed to purchase property and develop 
multifamily residences. 
The Petitioner submits e-mails between the Beneficiary and a realtor to identify properties for 
purchase between August 12,2015, and September 28, 2015. 
6 
Matter of A-S- Inc. 
The Petitioner provides an organizational chart and list of employee positions with job titles. In 
addition to the previously provided information regarding the car wash, the Petitioner added 
positions for a construction manager, construction coordinate, field engineer, and 10 general laborer 
positions. According to the list, all of the positions are to be hired in January of 2017. The 
Petitioner's organizational chart was likewise amended to show the additional positions for the 
construction business. 
As evidence of the Petitioner's staffing level, the Petitioner submits an employee contact list dated 
December 14, 2015, showing 24 employees and payroll for the period of December 11-31, 2015, 
showing 24 employees. 
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 would be 
employed in an executive capacity within one year of approval of the new office petition. 
When a new business is first established and commences operations, the regulations recognize that a 
designated manager or executive responsible for setting up operations will be engaged in a variety of 
low-level activities not normally performed by employees at the executive or managerial level and 
that often the full range of managerial responsibility cannot be performed in that first year. 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 or executive position. 
Accordingly, if a petitioner indicates that a beneficiary i~ coming to the United States to open a "new 
office," it must show that it is prepared to commence doing business immediately upon approval so 
that it will support a manager or executive within the one-year timeframe. 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. See generally 8 C.F.R. 
§ 214.2(1)(3)(v). The petitioner must describe the nature of its business, its proposed organizational 
structure, 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 managerial or executive capacity of the Beneficiary, we will look first to the 
petitioner's description ofthejob duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petition>r's description 
of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are in a managerial or executive capacity. !d. 
The definitions of managerial and executive capacity each have two parts. First, the petitioner must 
show that the beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the petitioner must prove 
that the beneficiary will be primarily engaged in managerial or executive'--duties, as opposed to 
Matter of A-S- Inc. 
ordinary operational activities alongside the petitioner's dther employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In the instant matter, the Petitioner described the Beneficiary's proposed position in very general 
terms, noting that he will be responsible for "planning and directing the company's financial, 
governance, and commercial operations"; "[f]ormulating short- and long-term policies, goals, 
strategies, procedures and programs"; "[ c ]oordinating international strategic planning with the 
Moroccan parent company"; "[ s ]upervising and exercising direction over subordinate employees and 
subcontractors"; and "[p]roviding overall leadership to the car wash team." While these broadly 
described responsibilities indicate the Beneficiary's senior level of authority within the company, 
they offer little insight into what he will actually do within the context of the petitioning business on 
a day-to-day basis during the first year of operations and beyond. 
Conclusory assertions regarding a 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. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Although the Director 
observed that the Petitioner's description of the Beneficiary's duties was too generaJ, the Petitioner 
has not provided any additional information regarding his actual proposed duties on appeal, or 
acknowledged the Director's finding that the submitted description was insufficient. Instead, the 
Petitioner asserts that the initial evidence was sufficient to establish eligibility in this matter by a 
preponderance of the evidence. 
However, while several of the broadly-drawn duties attributed to the position would generally fall 
under the definitions of managerial or executive capacity, the lack of specificity in the record as a 
whole raises questions as to the Beneficiary's actual proposed responsibilities. We do not doubt the 
Beneficiary's authority to make decisions, establish policies, hire employees, or his senior role in the 
new company; however, therecord does not establish how the Beneficiary would perform primarily 
managerial or executive duties within one year. Whether the Beneficiary is a managerial or 
executive employee turns on whether the Petitioner has sustained its burden of proving that his 
duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B) ofthe Act. 
Further, the position description alone is insufficient to establish that the 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 b~siness will grow sufficiently to support the Beneficiary in the intended managerial or 
executive capacity. The Petitioner has established that the Beneficiary would have the appropriate 
level of authority over the business, but the record does not establish what he would actually do on a 
day-to-day basis after one year. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd., 724 F. Supp. at 1108. 
The Petitioner has consistently explained its intent to operate two separate businesses, the existing 
car wash business, as well as real estate development business. The Petitioner's business plan, 
8 J 
(b)(6)
i• 
{ o. 
Matter of A-S- Inc. 
however, does not discuss any of these actions in detail, nor do the financial projections state with 
specificity the anticipated start-up and operational costs of the real estate development business as 
well as a staffing and timeline for development. 
Regarding the finances of the new office, the Petitioner provided information in response to the RFE 
detailing the size and nature of the initial investment. The information provided, however, included 
a number of inconsistencies and missing documentation that raise questions regarding the validity of 
the monetization of the United States operation. First, the Petitioner stated in response to the RFE 
that the money could not be directly transferred from the parent company's account in Morocco to 
the Petitioner's account "[d]ue to foreign currency transfer restriction in Morocco." The Petitioner 
claimed that therefore, the money had to be transferred first to the Beneficiary's account in the 
United States and then to the Petitioner's account. The Petitioner has not provided any details 
regarding the foreign currency transfer restriction or has not otherwise shown that a transfer to the 
Beneficiary's personal account as an intermediary step would otherwise be acceptable under the 
applicable transfer regulations .. 
In addition to the overall validity of the transfer, a number of inconsistencies in the banking 
documentation raise questions regarding the path of funds. For example, the Petitioner included a 
wire transfer from May 11, 2015, in the amount of $864,753.00 to the Beneficiary from' 
' but did not provide any information on the identity of the funds source identifies as 
Next, the Petitioner included a transfer from August 4, 2015, in the amount of $656,234.23 
to the Petitioner's account from ' that is unaccounted for in their funds path. 
Furthermore, the Petitioner documented $6,878,891.93 in transfers out of the Beneficiary's account, 
but only shows $5,300,482.35 worth of transfers into the Petitioner's account. Therefore, a total of 
$1,164,013.49 in additional funds was withdrawn from the Beneficiary's account, but not ultimately 
deposited into the Petitioner's account. Furthermore, the Beneficiary appears to have two bank 
accounts with account numbers ending in · and but does not provide an explanation 
regarding why money was transferred in between these two accounts or the purpose of the dual 
accounts. Additionally, the funds map shows $1,248,316 removed from the Beneficiary account 
prior to a funds deposit in the Petitioner's account, but does not state the reason for this withdrawal. 
Overall, the Petitioner's documentation regarding funding is incomplete at best, and calls into 
question the validity and nature of the path and sources of funding for the new office investment. 
Doubt cast on any aspect of the Petitioner's proof may, of course, lead to a reevaluation of 'the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter 
ofHo, 19 I&N Dec. 582,591 (BIA 1988). 
Regarding staffing of the new office operatiol)s, the Petitioner repeatedly stated that it has currently 
engaged with to conduct the "real estate due diligence process in connection 
with the acquisition of one (1) parcel of land." The Petitioner, however, has not provided a copy of 
the contract or overview of the services actually provided to show that the Beneficiary would be 
relieved from providing non-qualifying duties related to real estate and development. On appeal, the 
Petitioner provides copies of e-mails between the Beneficiary and the real estate consultant. Based 
on the e-mails provided, it does cnot appear that the real estate service provider has been engaged to 
9 
Matter of A-S- Inc. 
do anything beyond the normal scope of real estate brokerage services, thus casting doubt on 
whether the Beneficiary would be relieved of non-qualifying duties regarding real estate 
development and due diligence. Furthermore, the Petitioner's financial projections do not include 
any contractor expenses other than the Petitioner's general claim that it has sufficient funds left in its 
cash balances to cover real estate development efforts. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Furthermore, in the initial petition and in response to the RFE, the Petitioner did not provide any 
plans for hiring and staffing related to the real estate development business. On appeal, the 
Petitioner expands its hiring plans based on the organizational chart to show additional positions 
related to the project and construction management duties. The Petitioner stated those positions are 
to be hired in "January of 2017," over one year after the filing date of the petitioner. We note that 
even if the positions were hired prior to the end of the first year, the Petitioner has not provided any 
detail regarding how these positions will be financed and how they fit into the overall cost and scope 
of any expansion into the real estate business. Furthermore, the Petitioner appears to be relying 
solely on the Beneficiary to perform the initial development and due diligence regarding any real 
estate expansion, without any support staff to relieve him of non-qualifying duties. 
Regarding the car wash business, the Petitioner has not provided consistent or credible evidence 
regarding its staffing levels. The Petitioner stated on the Form I-129 that it employed 40 employees 
at the time of filing; however, an organizational chart shqws 35 employees including management 
structure not on payroll. A concurrently submitted employee list shows 39 names. In addition, the 
Petitioner's business plan submitted in response to the RFE states that it plans to hire 25 employees 
prior to the end of the first year, but then submitted an organizational chart showing 41 employees. 
Finally, on appeal, the Petitioner submits on appeal an employee contact list dated December 14, 
2015, showing 24 employees and payroll for the period of December 11-31, 2015, showing 24 
employees. The Petitioner's constantly fluctuating account of how many employees it either plans 
to employ, or employs, casts doubt on the overall hiring plan and stability of the car was operations 
staffing. The Petitioner has not resolved these inconsistencies with independent, objective evidence 
pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt 
cast on any aspect of the Petitioner's proof may, of course, lead to a reevaluation of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. !d. 
Consequently, the Petitioner has not provided probative evidence of a proposed organizational 
structure that would be sufficient to relieve the Beneficiary from performing non-qualifying duties 
within one year. As discussed above, the staffing levels indicated on the Petitioner's proposed 
organizational chart are not fully corroborated by its business plan or any other evidence in the 
record. Further, without an understanding of how and when the construction company will be 
staffed, we cannot determine whether the Beneficiary will be relieved of day-to-day duties regarding 
the real estate development business. ~ 
10 
Matter of A-S- Inc. 
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 10l(a)(44)(B) of the 
Act, 8 U.S.C. § 1101(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, 
the1organization must have a subordinate level of managerial employees for the oeneficiary to direct 
and the beneficiary must primarily focus on the broad goals and policies of the organization rather 
than the day-to-day operations of the enterprise. An individual will not be deemed an executive 
under the statute simply because they have an executive title or because they "direct" the enterprise 
as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." !d. Here, the Petitioner has 
not established that the Beneficiary would be relieved from focusing on fne day-to-day operations of 
its newly acquired business within one year, such that he could focus primarily on the goals and 
policies of the organization. 
For the reasons discussed above, we find that several pieces of key evidence are lacking in probative 
value. Overall, the vague job description provided for the Beneficiary, considered in light of the 
Petitioner's insufficiently documented business and hiring plans for the first year of operations, and 
the lack of information regarding the business's initial funding, prohibits a determination that the 
Petitioner would support a managerial or executive position within one year. Accordingly, the 
appeal will be dismissed. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed. 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 of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not been 
met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-S- Inc., ID# 105323 (AAO Nov. 28, 2016) 
II