dismissed L-1A Case: Computer Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 8, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a computer consulting company, seeks to temporarily employ the Beneficiary as the 
president 1 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 a managerial or executive capacity. 
The Director, Vermont Service Center, denied the petition. The Director concluded that (1) the 
Petitioner did not establish that it has secured sufficient physical premises to house its new office; 
(2) the Petitioner did not establish that the foreign entity is doing business; and (3) the Petitioner did 
not submit sufficient evidence as to the financial stability of the U.S. entity and did not establish that 
the Beneficiary will be employed in an executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner disputes the grounds for denial, 
asserting that the Director applied the "existing office standard" to the petition instead of the "new 
office standard." 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
1 The Petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, and support Jetter that the Beneficiary's 
job title would be "President"; however, the Petitioner's business plan and proposed organizational chart state that the 
Beneficiary's job title would be "Chief Executive Officer" or "CEO." 
Matter of S-, Inc. 
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge 
capacity. Id. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129, 
Petition for a Nonimmigrant Worker, 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) ofthis section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. ' 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v) further provides that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office in the United States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involved executive of managerial 
authority over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (1)(1)(ii)(B) or (C) of this section, supported by information 
regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
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Matter of S-. Inc. 
(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. 
II. PHYSICAL PREMISES TO HOUSE THE NEW OFFICE 
The first issue to be addressed is whether the Petitioner established that it has secured sufficient 
physical premises to house the new office, as required by 8 C.F.R. § 214.2(1)(3)(v)(A). 
A. Evidence of Record 
The Petitioner filed the Form I-129 on September 10, 2015. On the Form 1-129, the Petitioner states 
that the Beneficiary will be employed at , NC 2 The Petitioner did not submit 
a copy of a lease agreement or other evidence related to its physical premises at this address. 
In a request for evidence (RFE), the Director noted the lack of information · concerning the worksite 
and requested that the Petitioner submit evidence to establish that it had secured sufficient physical 
premises for its business , including evidence such as a lease or contract between the U.S. entity and 
the property owner. 
In response, the Petitioner stated that it had secured new office space at 
NC through a sublease agreement with The Petitioner 
submitted a copy of a sublease agreement with showing that the Petitioner 
2 The Petitioner also listed the Beneficiary's proposed address on the Form I-129 as 
which is substantially similar to the office location except for the city name. 
NC 
We also note that according to publically available information , the property located at NC 
appears to be a residential apartment. We acknowledge that the regulations do not specifY the type of premises 
that must be secured by a petitioner seeking to establish a new office. The phrase "sufficient physical premises" is broad 
and somewhat subjective , leaving U.S. Citizenship and Immigration Services (USCIS) great flexibility in adjudicating 
this legal requirement. There may be ca'ses in which a residential premises or home office would satisfY the regulatory 
requirements. However, the Petitioner bears the burden of establishing that its physical premises should be considered 
"sufficient" as required by the regulations at 8 C.F.R. § 214.2(1)(3)(v)(A). To do so, it must clearly identifY the nature of 
its business, the specific amount and type of space required to operate the business , its proposed staffing levels, and 
evidence that the space can accommodate the petitioner's growth during the first year of operations. USCIS may also 
consider evidence that the company has obtained a license to operate the business from a residential dwelling , if 
required, evidence that the landlord has authorized the use of residential space for commercial purposes , evidence that 
the company has established separate phone lines or made other accommodations for the use of the premises by the U.S. 
company , or any other evidence that would establish that a residential dwelling or portion of a residential dwelling will 
meet the company 's needs . 
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Matter of S-, Inc. 
leased office space beginning on February 1, 2014. The lease states that the term shall continue until 
terminated, but the Petitioner did not specify when the lease ended. The lease indicates that the 
space is authorized for two users and that it is a common co-working space. The Petitioner refers to 
this lease as "prior space." The Petitioner also submitted a copy of its email correspondence, dated 
November 2015, with a representative of in which the Petitioner inquired 
about the availability of office space that can eventually accommodate eight to twelve people. The 
email from the prospective landlord stated the following: 
[The Beneficiary], Great to hear! We actually are changing the space into a 
code school so location would be best. I have an office that could hold 8-12 
coming open in early February. You could begin there (it's at in 
the ' The office is 1827 RSF and runs $3200/month. It includes four 
parking passes and has, four private offices inside it. Would that be of interest? 
There is no response from the Petitioner attached to this email. In its response to the Director's RFE, 
the Petitioner referred to this potential space as "leased space from February 2016" though no lease 
agreement was submitted. 
In denying the petition, the Director noted that the Petitioner had not secured a sufficient office 
space to house the new office as of the date of filing. The Director acknowledged the business plan 
submitted by the Petitioner that states that the Petitioner intends to sign a lease agreement with 
commencing on January 1, 2016. However, the Director found that 
the Petitioner's intention to sign a lease was not sufficient evidence that the Petitioner has met the 
physical premises requirements by the date of filing. The Director also noted that the Petitioner 
referred to a mail box address at CA however, this 
was not a sufficient office space to house the new office. 
On appeal, the Petitioner states the following: 
For a new office situation, dependent on the USCIS' favorable adjudication of the L-
1A petition of the person to be in charge, a fully executed lease is neither mandated 
by law nor is a sane business practice. To require a petitioner to legally, 
contractually, commit to leased space in advance of the permitted transfer of the 
executive/manager in charge of the operations is overreaching. Surely, [the] 
Petitioner's submission of a landlord's stated reservation of space sufficient for [the] 
Petitioner's purposes, coupled with the Petitioner's previous lease agreement with the 
same landlord, satisfies the 'sufficient premises' standard. 
B. Analysis 
Upon review, the Petitioner did not establish that it had secured sufficient physical premises to house 
the new office as of the date of filing. Proof of physical premises is required initial evidence for a 
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Matter of S-, Inc. 
new office petition. See 8 C.F.R. § 214.2(1)(3)(v)(A). A 12etitioner must establish that it is eligible 
for the requested benefit at the time of filing the petition. 8 CF.R. § 103.2(b)(1). 
When a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is ready to commence doing business immediatelyupon approval. At the time of 
filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has 
secured sufficient physical premises. Here, the Petitioner contends that its submission of an email 
from its previous landlord regarding potential space becoming available in February 2016, along 
. with the Petitioner's previous lease agreement with the same landlord, satisfies the "sufficient 
physical premises" standard. A visa petition may not be approved at a future date after the Petitioner 
or Beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg'l Comm'r 1978). Since the Petitioner has not actually secured a physical location for 
its business, it has not met the eligibility requirements as of the date of filing. We note that the email 
correspondence does not indicate that the Petitioner responded to the landlord's email stating that it 
had space becoming available in February 2016. In any event, an email about a potential opening 
and a post office box are not sufficient evidence of a secured physical location. 
Accordingly, the appeal will be dismissed for this reason. 
' 
III. DOING BUSINESS 
The Director also denied the petition based on a finding that the Petitioner did not submit sufficient 
evidence to establish that the foreign sole proprietorship continues to do business, as required at 8 
C.F.R. § 214.2(l)(l)(ii)(G)(2). "Doing business" is defined as the "regular, systematic, and 
continuous provision of goods and/or services .... " See 8 C.F.R. § 214.2(1)(14)(ii)(A) and 8 C.F.R. 
§ 214.2(1)(1 )(ii)(H). 
In support of the foreign entity's ongoing business activities abroad, the Petitioner submitted copies 
of the foreign entity's audited financial statements for 2013 indicating that the foreign entity 
generated 108,765 Euros in 2013. The Petitioner also submitted copies of several contracts between 
the foreign entity and its clients, including a contract for professional services between the foreign 
entity and covering the periods October 14, 2015, until December 15, 2015; 
and a "model contract," also with covering the period September 4, 2014, 
until October 3, 2014. The Petitioner also submitted a contract between the foreign entity and 
for a 30 day software development project beginning June 2015. The Petitioner 
also submitted a copy of a "statement of work" entitled This document 
describes tasks that will be completed during 40 working days between April 2015 and December 
2015; however, it does not specifically refer to the foreign entity. Given the temporary nature of 
these contracts, it is unclear whether the foreign entity is continuously providing goods or services, 
rather, the evidence submitted indicates that the foreign entity engages in intermittent contracts for 
services that are not ongoing. It is unclear if these contracts will continue and many ended prior to 
the filing of this petition. 
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Matter of S-, Inc. 
We also note that the Petitioner submitted a supporting statement indicating, "[the Beneficiary's] 
leadership has grown the Company from 150,000 Euro in income in 2011 to over 500,000 Euro in 
annual income in this short period of time." The Petitioner did not submit the foreign entity's most 
recent 
tax returns or other financial documentation to substantiate this claim. 
Even if we were to find that the foreign entity is continuing to do business abroad, it is unclear how 
these business activities will continue once the Beneficiary is present in the United States. The 
Petitioner claimed in its support letter that the foreign entity is "taxed as a sole proprietorship in the 
Netherlands" and is "owned [100%] by .[the Beneficiary]," and the foreign entity's 2012 
Accountancy Report indicates that it is registered with the as a 
sole proprietorship. The Petitioner did not submit SJJfficient evidence to establish that the foreign 
sole proprietorship will continue to do business, as required at 8 C.F.R. § 214.2(l)(l)(ii)(G)(2). 
Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual 
owner. Matter of United lnv. Grp., 19 I&N Dec. 248 (Comm'r 1984). A sole proprietorship is "[a] 
business in which one person owns all the assets, owes all the liabilities, and operates in his or her 
personal capacity." Black 's Law Dictionary 1520 (lOth ed. 2014). As the Beneficiary claims to be 
the owner and sole proprietor of the foreign entity, the presence of the Beneficiary in the United 
States raises the question of whether the foreign business will co~tinue to do business abroad. 
The Petitioner has not identified who will run the business in his absence or how the foreign entity 
will continue to operate a software consulting business once the Beneficiary transfers to the United 
States. While the Petitioner did sub~it an organizationatchart indicating that the foreign entity has 
eight other employees, along wit~ brief employee job descriptions, the Petitioner did not submit 
sufficient evidence of this staffing such as payroll summaries, wage and tax statements, or employee 
personnel records. Without such evidence, we cannot conclude that the foreign entity has the 
employees in place to operate the business once the Beneficiary transfers to the United States. 
Furthermore, in its business plan, the Petitioner states, "[the foreign entity] will continuously support 
[the Petitioner] by providing funding, education and training as well as by transferring already 
established United States clients to the Company in order to facilitate provision of services." The 
Petitioner does not indicate how the foreign entity will continue to operate such that it can provide 
funding, education, or training to the Petitioner, or who will· provide these services. 
The Petitioner 
has also not identified the "establ,ished United States clients" who will be transferred to the 
Petitioner in the United States, or which clients will remain with the foreign entity. Without such 
evidence, the petition cannot be approved. Accordingly, the appeal will be dismissed for this 
additional reason. 
IV. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE ,-
CAPACITY WITHIN ONE YEAR 
The Director also denied the petitio~ based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in an executive capacity' within one year of approval. The Petitioner 
I 
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Matter of S-, Inc. 
claims, in response to the Director's RFE, that the position in the United States is managerial. On 
appeal, the Petitione~ states that the Director "fail[ ed] to adjudicate the Petitioner's contention that 
the proffered position is managerial in nature." · 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 110l(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 
co111ponent 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 101(a)(44)(B) of the 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 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. 
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 organization, in 
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Matter of S-, Inc. 
light of the overall purpose and stage of development of the organization. See section 10l(a)(44)(C) 
ofthe Act. 
/ 
A. Evidence of Record 
According to the Petitioner, it was established in September 2013 to expand operations in the United 
States in order to ·provide clients with big data analysis software development and software 
engineering and architecture consulting services. In its supporting statement, the Petitioner stated 
the following: 
Since starting in the Netherlands in 2011 we've had new customers joining every 
year, rewarding us with a 74% year over year growth. International customers 
include and In Europe they include the 
the 
and 
Projects outside of Europe are with and the in 
For the past two years we have been making in-roads into the US market and 
intend to finalize a relationship with the location in 
We generate revenue from consultancy and support, strengthened by a growing open­
source community. 
The Petitioner's statement indicated that the Beneficiary will serve as its "President" and submitted a 
"Proposed & Current" organizational chart, dated August 18, 2015, depicting the Beneficiary as 
CEO. The chart also lists CFO, along with a "Project & Consultancy Team" and 
a "Sales Team" that are unfilled. There are also two individuals Client Services 
Manager, and Interaction Designer) that are noted and both appear to report to the 
Beneficiary. The Petitioner also submitted resume which lists her employer as 
NV from February 2013 to present. 
The Petitioner also submitted an employee chart describing its employees and their respective duties. 
The chart lists the Beneficiary, President/CEO; Interaction Designer; 
Business Development; and Account Manager. 3 
The Petitioner also submitted a chart of projects. Most of the projects are "spearheaded" by the 
foreign entity, with the exception of two: and The chart 
indicates that the Petitioner has provided evidence of these client relationships stating that, 
proposal sent to ' and "Correspondence with " 
The support letter also provided the following list of proposed job duties as follows: 
3 The Petitioner did not explain why two of the employees' titles are different on each chart. 
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Matter of S-, Inc. 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
• 
Plan, develop, organize, implement, direct and evaluate the Company's fiscal 
function and performance. 
Participate in the development of the Company's plans and programs as a 
strategic partner. 
Evaluate and advise on t~e impact of long range planning, introduction of new 
programs/strategies and regulatory action. 
Enhance and/or develop, implement and enforce policies and procedures of the 
organization by way of systems that will improve the overall operation and 
effectiveness ofthe corporation. 
Establish credibility throughout the organization and with the shareholder and 
company partners as an effective developer of solutions to business challenges. 
Provide technical financial advice and knowledge to others within the financial 
discipline. 
Improve the budgeting process on a continual basis through evaluation and 
changes to processes and procedures on financial issues impacting budgets. 
Provide strategic financial input and leadership on decision:-making issues 
affecting the organization; i.e. evaluation of potential alliances acquisitions 
and/or mergers and benefits and investments. 
Optimize the handling of bank and deposit relationships and initiate appropriate 
strategies to enhance cash position. 
Recruit, hire and fire the best human capital talent available, and seek out 
industry partners as necessary to supplement company proposals, projects and 
operations. 
•.[ 
Develop a reliable cash flow projection process and reporting mechanism, which 
includes minimum cash threshold to meet operating needs. 
Act as an advisor from the financial perspective on any contracts into -which the 
Company may enter. 
In the RFE, the Director, requested, ,among other items, evidence to demonstrate how the company 
will grow to be of sufficient size to support a managerial or executive position and a more detailed 
description of the Beneficiary's proposed position to demonstrate that it will be in a managerial or 
executive capacity within one year. 
In response to the RFE, the Petitioner submitted a copy of its business plan which explains that, "the 
company will aim to establish itself in three distinct markets, based on the proven success of its 
foreign affiliate: law enforcement, renewable energy, and consulting services." The business plan 
states: 
[The foreign entity] had reco,gnized the need for law enforcement related software in 
the United States, and has thus developed its which 
[the Petitioner] will offer to law enforcement agencies and vigilant municipalities 
such as the and the among others. [The 
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Matter of S-, Inc. 
foreign entity] has also recognized an opportunity to expand its energy regulatory 
knowledge to the :United States. [The Petitioner] will be marketing energy ratings 
software technology in a Software-as-a-Service form, to clients in the 
-and later to the Moreover, [the Petitioner] will partner with its 
overseas affiliate to provide vast experience in big data analytics and software 
architecture consultancy. 
The Petitioner's business plan also included a chart of the Beneficiary's proposed duties which is 
reproduced below (verbatim): 
In Year 1, [the Beneficiary] will be responsible for overseeing the following: 
Tasks Personnel %Time 
Software Development 60% 
Department 
• Review and analyze 10% 
development and testing of 
the Company's products. 
• Direct, design and 10% 
implement strategic plan,s in 
a cost-effective and time-
efficient manner. 
• Manage plans to ensure 10% 
successful on-time Software Engineers and 
completion of development Business Deveh)pment 
phases Consultants 
• Stay alert to new trends . 10% 
• Determine staff 10% 
requirements, hire 
personnel, oversee training ' 
of new personnel activities 
and reports of lower level 
personnel submitted by ' 
managers. 
• Direct and analyze IT 10% 
consulting services I 
• Direct, design and 10% 
implement strategic plans in 
a cost-effective and time-
efficient manner. 
Administrative Department 20% 
• Establish and communicate 3% 
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Matter of S-, Inc. 
goals and objectives 
• Work on the set up of a 5% 
strategy for being time 
efficient and, therefore, 
reduce costs \ 
• Plan a weekly meeting to Chief Financial Officer and 2% 
coordinate the operations of . Part-time Accountant 
the company 
• Perform financial forecasts 2% 
and analysis 
• Prepare customs documents 3% 
• Prepare financial statements 5% 
Sales and Marketing 30% 
Department 
• Direct the Company's sales J 10% 
processes 
-. Develop new innovative ' 5% 
marketing campaigns to 
increase the customer base Client Services Managers and 
• Direct a competitive Sales Advisors 5% 
analysis 
• Promote the Company in 10% 
target clients segments 
( 
through social media 
The Petitioner 's business plan also included a summary of the Petitioner 's hiring projections. The 
Petitioner stated that in its first year, it will hire one Client Services Manager, four Software 
Engineers, one Sales Advisor, one Business Development Consultant, one Corporate Secretary, and 
one Part-time Accountant in addition to its Chief Executive Officer. 
A "U.S. Internal Organizational Chart" in the business plan lists the Beneficiary as CEO and 
as CFO along with the following positions: (1) Sales Advisors, (2) Business 
D~velopment Consultants, (3) Client Services Managers, (4) Software Engineers, (5) Part-Time 
Accountant, (6) Corporate Secretary, (7) Human Resources Manager, and (8) Corporate Legal 
Counsel." 
The business plan included a personnel plan that listed the anticipated payroll expenses for the first 
five years of operation. In the first year, the Petitioner stated that it expected to hire ten total 
employees and incur $537,917 in total payroll expenses. The total payroll expense estimates are 
expected to rise to $3,614,459 over the subsequent five years. 
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Matter of S-, Inc. 
The business plan also included a sales forecast that included unit sales and direct unit costs. The 
forecast for the first year anticipated $941,000 in total sales including $680,000 in sales of the 
(34 units) and $81,000 in sales of 
(54 units). The sales projections also included $144,000 in consultancy fees, and 
$36,000 in revenue generated by a software architecture consulting contract between the Petitioner 
the ' Regarding anticipated revenue, the business plan also stated that "the 
Company's sales are expected to grow from $941,000 in Year 1 to $6,128,000 in Year 5." In 
describing the financial status of the foreign entity, the Petitioner's business plan stated, "At the end 
of the 2013 fiscal year, [the foreign entity] generated total net value of 108,765 Euros, which is 
equivalent to $149,070.75." · 
Regarding the initial investment needed, the Petitioner stated that, "[the foreign entity] has thus far 
invested $20,000 into [the Petitioner]. Within Year 1, the foreign affiliate company will invest an 
additional $80,000." 
In response to the RFE, the Petitioner also submitted an updated "Proposed & Current" 
organizational chart dated October 20, 2015, listing the Beneficiary as CEO along with 
CFO, and Client Services Manager. There are three divisions listed -
"Project & Consultancy Team," "Sales Team," and "Support Staff"- and nine positions other than 
the CEO, CFO, and Client Services Manager - "Interaction Designer," "Big Data Developer," 
"Sales Advisor," "User Interface Developer," "Infrastructure Specialist," "Business Development 
Consultant," "Accountant," "Corporate Secretary," and "Corporate Counsel." 
The Director denied the petition, stating that the Petitioner did not establish that the Beneficiary will 
be employed in an executive capacity within one 
year of approval. 
On appeal, the Petitioner states that the information provided in the previously submitted business 
plan is sufficient to establish that the U.S. operations would support a managerial or executive 
position within one year and that the Director "fails to adjudicate the Petitioner's contention that the 
proffered position is managerial in nature." 
B. Analysis 
Upon review of the petition a:nd the evidence, an <;I for the reasons discussed herein, the Petitioner has 
not established that the Beneficiary will be employed in a managerial or executive capacity within 
one year of the petition's approval. · 
When a new business is first established and commences operations, the regulations recognize that a 
designated manager 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 
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Matter of S-, Inc. 
"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 is coming to the United States to open a "new 
office," it must show that it is prepared to commence doing business immediately upon approval so 
that it will support a manager 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 and financial goals, and .submit evidence to show that it has the financial ability to 
remunerate the Beneficiary and commence doing business in the United States. !d. 
When examining the executive or managerial capacity ofthe Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description 
of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. !d. Beyond the required 
description of the job duties, USCIS reviews the totality of the record when examining the claimed 
managerial or executive capacity of a beneficiary, including the Petitioner's proposed organizational 
structure, the duties of the Beneficiary's proposed subordinate employees, the Petitioner's timeline 
for hiring additional staff, the presence of other employees to relieve the Beneficiary from 
performing operational duties at the end of the first year of operations, the nature of the Petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's 
actual duties and role in a business. The Petitioner's 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). 
Here, the Petitioner submitted two different sets of proposed job duties for the Beneficiary. In the 
duties listed in the support letter and reiterated on appeal, the Petitioner indicates that the Beneficiary 
will not perform any software development tasks. Rather, the tasks include general statements 
indicating that the Beneficiary will be responsible for"fiscal function and performance," "long range 
planning," "budgeting process," and "strategic financial input and leadership." 
In the second description, which was contained in the business plan, the Petitioner indicated that the 
Beneficiary will spend ( 60%) of his time performing duties related to software development 
including, "Review and analyze development and testing 'of the Company's products," "Direct, 
design and implement strategic plans in a cost-effective and time-efficient manner," "Manage plans 
to ensure successful on-time completion of development phases," and "Stay alert to new trends." 
The Petitioner indicated that the Beneficiary will spend 1 0% of his time on personnel management 
tasks such as "determining staff requirements," "hiring personnel," and "overseeing training of new 
personnel through staff, and monitoring management personnel activities and reports of lower level 
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Matter of S-, Inc. 
personnel submitted by managers." The chart indicates that the Beneficiary will oversee the 
software engineers and business development consultants. The Petitioner also indicated that the 
Beneficiary will spend 20% of his time on administrative department tasks and ~0% of his time on 
sales and marketing tasks. These departments did not specifically include personnel management 
duties, ,though the chart did list additional personnel for these departments including the "Chief 
Financial Officer and Part-time Accountant," and "Client Services Managers and Sales Advisors." 
Given the considerable differences in the proposed job duties, we are unable to determine exactly 
what tasks the Beneficiary will perform on a daily basis, and who will relieve him from performing 
the day to day tasks of running a software development and consulting company. A petitioner may 
not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Cdmm'r 1998). The Petitioner has 
not resolved these inconsistencies with independent, objective evidence pointing to where the truth 
lies. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
The list of duties submitted in the support letter and reiterated on appeal also do not contain 
percentages of time devoted to each task, making it unclear how much time the Beneficiary will 
devote to each task. This is important because absent a clear and credible breakdown of the time 
spent by the Beneficiary performing his duties, we cannot determine what proportion of those duties 
would be managerial or executive. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). 
We also note that if the Beneficiary will primarily perform the tasks stated in the support letter and 
on appeal, we are unable then to determine who will be responsible for sales and marketing and 
performance of the Petitioner's sqftware applications and consulting services that are projected to 
reach $941,000 in the first year of operation. At the time of filing, the Petitioner stated that it 
employed one individual, the CFO, in addition to the Beneficiary. The Petitioner has not adequately" 
explained how it expects to reach nearly one million in total sales in its first year of operation. 
The Petitioner has also submitted inconsistent accounts of its staffing at the time of filing. In its 
I 
initial filing, the Petitioner submitted a marketing brochure that lists three current employees in 
addition to the Beneficiary: , (Big-data awesomeness)," (Finance! Support!)," and 
(Start-up professional)." The Petitioner also submitted its Form 1120 U.S. Corporation 
, Income Tax Return for 2.014 which indi~ates that it paid $2,301 in wages and had zero gross receipts 
or sales. Also in the initial filing, the Petitioner submitted a "Proposed & Current" organizational 
chart, dated August 18, 2015, depicting the Beneficiary as CEO. The chart also lists 
CFO, along with a "Project & Consultancy Team" and a "Sales Team" specifically 
naming two individuals ( Client Services Manager, and Interaction 
Designer) that both appear to report to the Beneficiary. This is inconsistent with a second "Proposed 
& Current" organizational chart that was submitted in response to the RFE. The second chart adds 
three additional support staff positions: "Accountant,'' "Corporate Secretary," and · "Corporate 
14 
(b)(6)
Matter of S-, Inc. 
Counsel." is listed as the Client Services Manager, however, is not 
listed on the second chart. 
The most recent projected organizational chart submitted with the business plan lists only two named 
employees: the Beneficiary and its CF0. 4 In its business plan, the Petitioner indicated that "it has 
already hired its Chief Financial Officer. Since the two "Proposed & Current" charts differ 
regarding who has been hired and the positions that the Petitioner intends to fill, we are unable to 
determine exactly what support staff exists to relieve the Beneficiary from performing day to day 
tasks of the business. The Petitioner has not resolved these inconsistencies with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Moreover, even if the Petitioner's business were to grow and allow for hiring to occur at planned 
levels, the evidence in the record demonstrates that the Beneficiary would continue to perform the 
non-qualifying duties of software development and consultancy along with other marketing and sales 
related duties listed above, well beyond the one-year time frame. The Petitioner has not 
demonstrated that any of the planned subordinate staff would take over these non-qualifying duties, 
which according to the Petitioner's business plan, make up over 60% of the Beneficiary's 
responsibilities. 
Furthermore, the record does not include sufficient probative information on the nature of the entity 
and its financial goals. According to the Petitioner's business plan, it anticipates $941,000 in total 
sales including $680,000 in sales of the (34 units) and 
$81,000 in sales of (54 units). The sales projections also include 
$144,000 in consultancy fees, and $36,000 m revenue generated by a software architecture 
consulting contract between the Petitioner the ' This contract is included in 
the record and represents $36,000 of the projected $941,000 in revenue expected in the Petitioner's 
first year of operation. The Petitioner also submitted documents evidencing the Petitioner's 
relationship with and As discussed above, the 
contract does not refer specifically to the Petitioner, the document is a proposal 
only and the ' contract ended prior to the filing of this petition. While the Petitioner states 
that it has current contracts with ' 
,, 
these contracts have not been submitted. It is not clear if they are continuing, or if they will be 
assigned from the foreign entity to the Petitioner. It is also not clear if these contracts are included in 
the $941,000 sales projections for the first year of operation that the Petitioner included in its 
4 The foreign entity's organizational chart which is part ofthe Petitioner's business plan lists 8 employees in addition to 
the Beneficiary who is listed as "Managing Director." This organizational chart lists one who is identified as a 
"Big Data Specialist." Even if the marketing brochure refers to the foreign entity's employees, that list of employees 
significantly differs from the foreign entity's organizational chart located in the Petitioner's business plan at page 7. 
15 
Matter of S-, Inc. 
business plan. Therefore, the Petitioner's assertion that it can cover its costs solely through revenue 
from new projects generated in the United States, without support from the parent company, is not 
persuasive. 
The Petitioner has not sufficiently ~xplained its business model or provided a realistic view of its 
financial structure to support its forecast. The regulations require the Petitioner to present a credible 
picture of where the company will stand in one year, and to provide sufficient evidence in support of 
its claim that the company will grow to a point where it can support a managerial or executive 
position within that time. Without a documentation supporting the Petitioner's financial objectives 
for the first year of operations, it is not possible to conclude that the Petitioner will be able to support 
a qualifying managerial or executive position within a twelve-month period. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proofin these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998). 
Based on these deficiencies, we find that the Petitioner has not established that it will be able to 
support the Beneficiary in a primarily managerial or executive capacity by the end of the first year of 
operations. Accordingly, the appeal will be dismissed for this additional reason. 
V. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-, Inc., ID# 18233 (AAO Sept. 8, 2016) 
16