dismissed L-1A Case: Clothing Distribution

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u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (MO) 
20 Massachusetts Ave., N,W., MS 2090 
Washington, DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: NOV 0 1 2011 OFFICE: CALIFORNIA SERVICE CENTER F 
IN RE: Petitioner: 
Beneficiaries: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(1 5)(L) of the 
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
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 as an L-IA nonimmigrant 
intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1101(a)(l5)(L). The petitioner, a California company, states that it is engaged in the distribution 
of clothing related items. The petitioner claims to be a branch office of Global JSK Zipper Corp., located in 
Korea. The petitioner seeks to employ the beneficiary as its president for a period of one year to open a new 
office in the United States. 
The director denied the petition on September 25, 2009, concluding that the petitioner failed to demonstrate 
that it has secured sufficient physical premises to house the new operations, as required under the 
regulations at 8 C.F.R. § 214.2(l)(3)(v). 
At the time of filing the original petition, the petitioner submitted a two-page document entitled 
"Commercial Lease." The agreement was entered into on 2009 between the peltitil)n(!r 
~h Ink America, Inc. for the lease 
_ The term of the lease is for 12 months commencing in September 2009. 
The director requested additional evidence to establish the presence of the U.S. company's business 
premises such as a floor plan, photographs of the U.S business premises, and a letter from the owner or 
property management company of the leased premises to confirm that the U.S. company is actually 
occupying the space and maintaining the lease agreement. 
In a response letter, dated September 18,2009, the petitioner explained that the "U.S. branch has initially 
Ah Ink America, Inc. for the premises located at_ 
Since then, the U.S. branch entered into the lease 
However, petitioner never explained why it entered into a new 
In addition, the initial lease agreement did not indicate anywhere that it was a sublease 
agreement. Furthermore, it is unclear how the petitioner can enter into a new agreement with the landlord 
while also having a sublease agreement with It is incumbent upon the 
petitioner to resolve any inconsistencies in the evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter (if 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. Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). 
The petitioner also noted that in the new lease agreement subm itted by the petitioner, the office space is 
309 square feet. The director noted that the leased space of 309 square feet is not large enough for the 
proposed additional employees that will be hired within the year of opening a new office. On appeal, the 
petitioner contends that it submitted a proposed U.S. organizational chart with the projection that the 
petitioner will hire two to three additional employees in the future. The petitioner contends that it 
Page 3 
currently employs one person and upon approval of the petition will employ the beneficiary for a total of 
two individuals, thus, the office space will be sufficient for two employees. The petitioner is correct in 
stating that the office space is sufficient for two employees; however, the petitioner distributes clothing 
items and receives shipments from abroad and the petitioner has failed to provide any evidence of space 
to store the inventory prior to distributing it to the customers. The petitioner has not described its 
anticipated space requirements for the new business. The petitioner did not provide sufficient evidence to 
establish that it has secured sufficient business premises. 
Beyond the decision of the director, the petitioner failed to demonstrate that the intended United States 
operation, within one year of the approval of the petition, will support an executive or managerial position. 
The regulation at 8 C.F.R. § 2l4.2(l)(3)(v) 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 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)(I)(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 IOI(a)(44)(A) of the Act, 8 U.S.C. § I 10 I (a)(44)(A), provides: 
The term "managerial capacity" means 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. 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 IOI(a)(44)(B) of the Act, 8 U.S.C. § I 10 I (a)(44)(B), provides: 
The term "executive capacity" means 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. 
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 quality for L-l 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.P.R. § 214.2(l)(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 
qualitying duties. 
In addition, if 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 
Page 5 
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 managerial or executive 
position within one year of approval. See generally, 8 C.F.R. § 214.2(l)(3)(v). If approved, the 
beneficiary is granted a one-year period of stay to open the "new office." 8 C.F.R. § 214.2(l)(7)(i)(A)(3). 
At the end of the one-year period, when the petitioner seeks an extension of the "new office" petition, the 
regulation at 8 C.F.R. § 214.2(l)(14)(ii)(8) requires the petitioner to demonstrate that it has been doing 
business "for the previous year" through the regular, systematic, and continuous provision of goods or 
services. See 8 C.F.R. § 214.2(l)(l)(ii)(H) (defining the term "doing business"). The mere presence of an 
agent or office of the qualifYing organization will not suffice. Id. 
The petitioner indicated on the Form 1-129 that the beneficiary will be employed in the position of president. 
In the letter of support, dated August 25, 2009, the petitioner explained the duties to be performed by the 
beneficiary in the U.S. as follows: 
-He will manage the essential function of directing our U.S. branch office, coordinating our 
activities to obtain optimum efficiency, within budget, with the goal of maximizing profits. 
15% 
-He will plan and develop organizational policies and goals and implement goals through 
managing subordinate personnel 10%; 
-He will supervise activities of sales, planning, and business opportunity research to increase 
operational efficiency and economy 10%; 
-He will review work performance with authority to hire and fire staff and employees 10%. 
-He will direct and coordinate the promotion of our products with the aim of developing new 
markets, increasing our share of the market and obtains competitive advantage over the 
competition 15%; 
-He will analyze budget requests to identifY areas in which reductions can be made and 
approved all ocation [sic 1 of the operations budget 10%; 
-He will direct the creation and implementation of policies, programs and operational 
changes within the company 15%; 
-He will review market analysis report to develop and implement sales and marketing 
policies based on annual sales target for domestic and international market 15%. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be 
employed in a managerial or executive capacity. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. § 
214.2(l)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
Page 6 
spend a majority of his time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30,1991). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties 
constitute the majority of the beneficiary's duties, or whether the beneficiary will primarily perform non­
managerial, administrative, or operational duties by the end of the petitioner's first-year of operations. 
An employee who "primarily" performs the tasks necessary to produce a product or provide a service is 
not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101 (a)( 44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology Intn '1.,19 I&N Dec. 593, 604 (Comm. 1988). 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner stated 
that the beneficiary will spend IS percent of his time to "manage the essential function of directing our 
U.S. branch office," and 10 percent of this time to "plan and develop organizational policies and goals." 
The description of the beneficiary's duties is vague and gives no detail of what the beneficiary will be 
doing on a day-to-day basis. The petitioner does not explain how the beneficiary will "manage or develop 
policies." Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course of her 
daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The 
petitioner's descriptions of the beneficiary's position do not identity the actual duties to be performed, 
such that they could be classified as managerial or executive in nature. 
Furthermore, 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 market/prospective 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 therefore. Most importantly, the business plan must be 
credible. 
Page 7 
Id. 
The petitioner submitted a 2-page business plan for the U.S. entity. The business plan consisted on an 
overview of the company and a brief description of market opportunity that includes the foreign 
company's expansion of its market presence in the U.S. The business plan also lays out financial 
projections from 2009 to 2013. The business plan does not provide any detail of how the projected 
earnings were calculated. In addition, the business plan does not discuss marketing plans, market 
research, or proposed positions in the company and a timeline. In reviewing the business plan, it appears 
that the petitioner has failed to identifY the scope of the U.S. company and the feasibility of achieving the 
goals discussed in the business plan. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972». 
Upon review, the petitioner has not submitted sufficient evidence to establish that the intended United 
States operations, within one year of approval, will support an executive or managerial position. For this 
additional reason, the appeal will be dismissed. 
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), 
afj'd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(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 the decision. 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. § 1361. Here, that 
burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.