dismissed L-1A Case: Computer Services

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
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 U. S. citizenship 
and Immigration 
mLIC COPY 
, 
File: WAC 08 027 50001 Office: CALIFORNIA SERVICE CENTER Date: FE8 0 2 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 I(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 10 1(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 4 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
F. Grissom, Acting Chief 
inistrative Appeals Office 
WAC 08 027 50001 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 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-1A nonimmigrant 
intracompany transferee pursuant to section 10 l(a)( 1 S)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1 10 1 (a)(lS)(L). The petitioner, a California corporation, states that it intends to engage in computer 
programming and quality management services. The petitioner claims to be a subsidiary of 1 
Ltd., located in Tokyo, Japan. The petitioner seeks to employ the beneficiary as the manager of its new office 
in the United States for a period of three years. 
1 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed by the U.S. entity in a primarily managerial or executive capacity within one year. The director 
denied the petition, in part, based on the petitioner's failure to provide a detailed description of the 
beneficiary's proposed duties. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that, although the director 
issued a lengthy request for evidence, the director never requested a more detailed description of the 
beneficiary's proposed duties in the United States. The petitioner submits an expanded position description 
and asserts that the new evidence, considered with the evidence already in the record, will demonstrate that 
the beneficiary will be employed in a managerial capacity. 
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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
' Pursuant to the regulation at 8 C.F.R. fj 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
WAC 08 027 50001 
Page 3 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or 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 involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational 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. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed in a primarily managerial or executive capacity within one year of the approval of the petition. 
Section 10 1(a)(44)(A) of the Act, 8 U.S.C. tj 1 101(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; 
WAC 08 027 50001 
Page 4 
(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. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or hnction of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the nonimmigrant petition on November 29, 2007. In a letter dated November 5, 2007, the 
petitioner expressed its intent to employ the beneficiary as the manager of its new office in the United States, and 
described his proposed responsibilities as follows: 
To set up and manage the US office; 
To hirelfire supervise and control other managers, professionals and specialized engineers 
in the US operations; 
To give directions to other employees in the day-to-day operations of verification services 
in the US; 
To meet clients and discuss and identify needs and opportunities for company's business 
expansion; 
To liaise with the management in Japan and contribute to forming company's strategies for 
international operations[.] 
WAC 08 027 50001 
Page 5 
The petitioner explained that its Japanese parent company provides verification services for quality management 
of computer software, applications, systems and information technology products, whose clients include major 
manufacturers and service providers in the information technology and telecommunication industries. The 
petitioner indicated that it has identified "specific customer needs" for it services in the Detroit area and therefore 
decided to open its first international office in Michigan. 
The petitioner's initial evidence included a 16-page business plan dated November 1, 2007, which outlined the 
company's targeted markets, staffing plans, and financial goals through 2012. The petitioner indicated that it 
plans to serve Japan-based customers having need for verification services in the United States, and will later 
expand the business to include U.S.-based customers. According to the business plan, the company plans to 
target automotive and parts manufacturers, computer and electronics product manufacturers, and computer 
system design and related service providers. The petitioner indicates that it intends to expand to five U.S. offices 
with 160 employees and sales of $14 million by 2012. 
The petitioner's business plan includes a staffing projection which indicates that, by the end of 2008, the company 
anticipates employing one manager, two project managers, three senior engineers and six engineers. The 
company projects sales of $768,000 for 2008, and anticipates an average of $32,000 in revenue per project, per 
month. The petitioner's business plan also includes a proposed organizational chart with a slightly different 
proposed staffing structure for the first year of operations. The chart depicts a president, a treasurer and chief 
financial officer, a secretary, a manager, two project managers, two senior engineers and four engineers. 
The director issued a request for additional evidence on December 21, 2007. In part, the director requested a 
letter from the foreign entity identifying the number of proposed employees and the types of positions they will 
hold; the amount of the U.S. investment; the financial ability of the foreign company to pay the beneficiary and 
commence doing business in the United States; and an explanation as to how the proposed new office will, within 
one year, support a managerial or executive capacity position. The director also requested a feasibility study, 
copies of all business plans prepared to date for the U.S. entity, including specific details regarding the business to 
be conducted, and one, three- and five-year projections for business expenses, sales, gross income and profit and 
loss. The director further instructed the petitioner to submit proof of business conducted by the foreign parent 
company in the United States to date. 
The petitioner's response included a letter dated March 10, 2008 from the foreign entity's president, who 
explained that the foreign entity decided to expand into the United States after receiving a request for its testing 
services from a potential customer in August 2006. The foreign entity indicated that it had not provided any 
services outside Japan previously, and ultimately decided to "set up the U.S. office, to hire local employees, and 
to get them well-trained and prepared for a start of our testing services as soon as possible." The foreign entity 
further described the proposed operations as follows" 
[Wle plan to have 12 employees as of the end of 2008, including a manager, two project 
managers, three senior engineers, and six engineers. The number of employees will be expanded 
to 36 in 2009 and 64 in 2010. The initial amount of the US investment will be 100,000 US 
dollars. We believe this amount would be sufficient to pay the beneficiary and commence doing 
business in the United States at for one year. 
WAC 08 027 50001 
Page 6 
The foreign entity indicated that upon approval of the petition, the beneficiary will be responsible for hiring 
additional employees in the United States and filing additional petitions, if necessary. The petitioner also 
submitted the minutes of meetings held by the foreign entity's executives with respect to the establishment of the 
U.S. subsidiary. The meetings contain a reference to a proposed year-long customer testing project scheduled to 
begin in May 2008 and requiring three to five testing engineers. According to the minutes of a meeting held by 
the foreign entity on March 30,2007, meetings with the customer to plan the project "could take about six months 
to one year," and the beneficiary ultimately obtained a B-1 visa in order to come to the United States to work out 
the details with the customer. 
The petitioner's response to the WE also included: a document titled "Market and Feasibility of US Operations," 
dated February 26, 2007 and a "Business Plan for U.S. Operations," revised on February 29, 2008. The staffing 
plan outlined in the business plan is as follows: 
Manager 
There will be one Manager in an office responsible for the overall management of the office, hire 
and fire other managers and engineers serve as an interface to external relations such as with 
customers or partner companies and represent company in that area, and liaise with the 
headquarters in Japan. . . Salary Level: 70K - 80K 
Project Manager 
A Project Manager will be responsible for management of a project including scheduling and 
progress reporting, job assignment to each engineer, supervising engineers, and identify and 
solve problems in each project. Salary Level: 60K-70K 
Senior Engineer 
A Senior Engineer should have advanced level of skills and expertise with more than five years 
of experiences, conduct advanced levels of development and testing, and train and support other 
engineers. Salary Level: 50K-60K 
Engineer 
An Engineer will conduct development and testing under the supervision of senior Engineer and 
Manager. Salary Level: 40K-50K 
Each office will have several projects on-going at a time. Typically each project will consist of 
one Project manager, one Senior Engineer, and two or three Engineers. 
According to the revised business plan, the petitioner anticipates employing 12 people in 2008, including a 
manager, two project managers, three senior engineers and six engineers. The plan projects $480,000 in sales 
through the end of 2008, noting that the original projection of $762,000 was based on the petitioner being able to 
commence operations during the first quarter of 2008. The plan indicates that the initial planned investment will 
cover the beneficiary's salary of $78,000 and $18,000 in rent and "other expenses." The plan includes financial 
projections which show that in.the fourth quarter of 2008, the petitioner intends to employ one manager, one 
WAC 08 027 50001 
Page 7 
project manager, two senior engineers, four engineers and one "stafP' and anticipates paying $123,250 in salaries. 
The projections are based on an assumption that the company will be involved in two projects per month. 
The petitioner submitted a wire transfer receipt showing that the foreign entity transferred $97,409 to the U.S. 
company on March 1 1,2008 as payment for the petitioner's stock. 
The petitioner also submitted a letter from the beneficiary dated February 25, 2008. The beneficiary stated the 
following in his letter: 
I understand that my responsibilities as a manger [sic] in the USA will be to set up the new 
office, to interview and hire staff, to manage day-to-day operation of the verification services, 
and to keep good relations with customers and win opportunities for the company to serve more 
customers and establish presence in the USA. 
The director denied the petition on April 18, 2008, concluding that the petitioner had failed to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. The director 
found that the petitioner had described the beneficiary's duties in only broad and general terms, and provided 
insufficient detail regarding the actual duties he will perform and the percentage of time devoted to specific 
duties. The director also found that the petitioner "has failed to establish that it has the organizational complexity 
to support an executive position." The concluded that the petitioner did not establish that the beneficiary will be 
managing a subordinate staff of professional, managerial, or supervisory personnel who will relieve him from 
performing non-qualifying duties. 
On appeal, the petitioner suggests that the director improperly denied the petition based on the petitioner's failure 
to submit a detailed position description, noting that the director never requested additional evidence regarding 
the beneficiary's detailed duties in the United States. The petitioner submits the following description of the 
beneficiary's proposed duties: 
(1) 
 Set up and manage the U.S. office. [30%] 
[The petitioner] is starting up its business in the United States, and therefore [the 
beneficiary's] duties include initial set up of an office for the company and making 
it ready for operation. However, we have already secured an office, and, because of 
the use of the executive suites, the work load for this duty will be minimal. [I%] 
The U.S. office will be the company's key division to establish overall goals and 
policies regarding its international business and to control all international 
operations as well as to provide services to customers [in] the United States. [The 
beneficiary] will be the head of the U.S. office and will be responsible for the 
overall management of the company's U.S. and international operations. This job 
will take significant portion of his duties in the United States. [29%] 
(2) 
 To hirelfire, supervise, and control other managers, professionals and other engineers in 
the U.S. operations: [20%] 
WAC 08 027 50001 
Page 8 
[The beneficiary] will be responsible for hiring and firing subordinate managers in 
the U.S. office. After hiring, he will supervise, control and appraise the performance 
of those managers. [lo%] 
Each subordinate manager will interview and recommend hiring and firing 
engineers and other staff for each responsibility project, and [the beneficiary] will be 
making a final decision on staffing of each project. [5%] 
Because of the nature of the planned business in the United States with highly 
advanced technological skills and expertise required in the field of systems 
verification, use of professionals will need to be considered and implemented from 
time to time. [The beneficiary] will be responsible for hiring, firing, and supervising 
such professionals. [5%] 
(3) 
 To give directions to other employees in the day-to-day operations. [30%] 
[The beneficiary] will mainly give directions to subordinate managers and will have 
discretion in making decisions in the day-to-day operations. [20%] 
Each subordinate manager will give directions to the engineers and staff in each 
responsible project team and will report to, and consult with, [the beneficiary] 
regularly and as necessary. [I 0%] 
(4) 
 To meet clients and discuss and identify needs and opportunities for company's business 
expansion. [I 0%] 
As the representative of the U.S. office, [the beneficiary] will keep contact and close 
relations with the presidents and top managements of major clients in the United 
States and will try to identify and expand opportunities at a management level for 
the company's business in the United States and globally. [I 0%] 
(5) 
 To liaise with the management in Japan and contribute to forming company's strategies 
in international operations. [lo%] 
[The beneficiary] will report to President of [the foreign entity], keeping the 
management informed of the status and operations in the United States and 
internationally. [5%] 
He will participate in the Board of Directors meetings of [the foreign entity] and 
will contribute to forming strategies and making decisions for the company's U.S. 
and international business. [5%] 
Upon review, the petitioner has not established that the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity within one year of commencing operations. 
However, preliminarily, the AAO notes that, although the director requested additional relevant evidence 
pertaining to the regulatory requirements for a "new office" petition pursuant to 8 C.F.R. 3 214.2(1)(3)(~), the 
notice of decision contains no reference to the petitioner as a 'hew office" and does not clearly indicate that the 
director considered all relevant evidence in determining whether the beneficiary would be employed in a 
WAC 08 027 50001 
Page 9 
qualifjling capacity, or whether the petitioning company would support a managerial or executive position, within 
one year. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). As the AAO's review is 
conducted on a de novo basis, the AAO will herein address the petitioner's evidence and eligibility. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. The petitioner must also establish that 
the beneficiary will have managerial or executive authority over the new operation. See 8 C.F.R. 8 
2 14.2(1)(3)(v)(B). 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andfor 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 markedprospective 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. 
WAC 08 027 50001 
Page 10 
Here, the totality of the evidence is insufficient to establish how the petitioner will grow to the point where it 
will be able to support the beneficiary in a primarily managerial or executive capacity within one year of 
commencing operations. 
First, the petitioner has failed to establish that the beneficiary will be performing primarily "managerial" or 
"executive" duties after the petitioner's first year in operation. When examining the proposed executive or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the proposed 
job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe 
the duties that will be performed by the beneficiary and indicate whether such duties will be either in an 
executive or managerial capacity. Id. 
As noted by the director, the petitioner initially 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 after one year 
in operation. The petitioner has now attempted to clarify the beneficiary's proposed duties on appeal; 
however, the more detailed position description still lacks specificity and falls short of establishing that the 
beneficiary's duties would be primarily managerial or executive in nature within one year. For example, the 
petitioner indicates that the beneficiary will devote 29 percent of his time to "overall management of the 
company's U.S. and international operations," but fails to identify the actual tasks he would perform within 
the scope of this broad responsibility. Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989)' affd' 
905 F.2d 41 (2d. Cir. 1990). 
The petitioner indicates that the beneficiary would devote an additional 10 percent of his time to meeting with 
clients, identifying their needs, and identifying opportunities for business expansion. Although the petitioner 
indicates that such contacts will take place at the management level, it is unclear based on the evidence in the 
record that anyone on the petitioner's proposed staff, besides the beneficiary, would be responsible for 
marketing and selling the petitioner's services to U.S. clients. Since the survival of the business would 
realistically depend on the petitioner's ability to secure contracts with U.S. clients, it is also reasonable to 
question whether these customer-related activities would only require 10 percent of the beneficiary's time. 
Based on the petitioner's representations, the largest portion of the beneficiary's time, 50 percent, will be 
allotted to hiring, supervising and controlling managers, professionals and engineers, and giving directions to 
other employees in the day-to-day operation of the business. As noted above, the petitioner's initial business 
plan indicates that the petitioner projects that it will employ two project managers, three senior engineers, and 
four to six engineers in 2008. The AAO must determine whether the petitioner's evidence is persuasive in 
establishing that the company will actually support the proposed staffing levels within one year. 
The petitioner's staffing and financial projections for 2008 are based on an assumption that the company will 
have two ongoing projects staffed with a project manager, senior engineer and two engineers, with average 
project revenue of $32,000 per month. The petitioner's projected salary expenses for 2008 alone are 
$473,000. While the petitioner has indicated that it has "immediate customer needs" for its services in the 
Detroit, Michigan area, the petitioner has not documented that it has secured any contracts for its services. 
WAC 08 027 50001 
Page 11 
The AAO notes that there are several meeting minutes from the foreign entity in the record pertaining to a 
testing operation to take place at a customer's premises in Michigan. It appears that talks with the customer 
began in 2006, but that the testing and verification activities would not commence until May 2008. The 
meeting minutes also indicate that pre-project discussions with the customer would require six months to one 
year. There is no documentary evidence, such as proposals or contracts, indicating that the proposed testing 
operation was finalized and still scheduled to begin in May 2008. There is no mention in the record of any 
other negotiations with potential U.S. customers, and no specific potential customers are mentioned in the 
petitioner's 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 SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of Calgornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Clearly, the petitioner will not have a need for the proposed project managers and engineers until and unless it 
has secured customer contracts for its testing and verification services. Based on the petitioner's 
representations, preliminary discussions and negotiations for these contracts can take many months. The 
petitioner also indicates that it may need to transfer additional technical staff from Japan to undertake the 
engineering roles, which would lead to additional hiring delays. Overall, while the petitioner's projected 
staffing levels for the first year of operations indicate that the company intends to hire subordinate managers 
and professionals to provide the petitioner's services, the evidence as a whole does not support a finding that 
the petitioner will realistically hire the proposed staff within one year, and thus does not support the 
petitioner's statement that the beneficiary will devote fully half of his time to hiring, firing, supervising and 
controlling subordinate managers and professionals within one year. 
As noted above, the petitioner's business plan must be credible. The petitioner's parent company has been 
operating in Japan for fifteen years, appears to operate a single office, and claims to employ approximately 
100 workers. It achieved gross sales of approximately $2.5 million in 2006. The foreign entity has not 
previously done business outside of Japan, yet it projects that it will be operating five offices with annual 
sales of $14 million and 160 employees in the United States by 2012. While the projections contained in the 
petitioner's business plan are impressive, the evidence of record does not establish that they are feasible. 
Furthermore, the AAO notes that the petitioner's projected staff for the first year of operations does not 
include sales and marketing, finance, administrative or clerical personnel, and it is therefore unclear who 
would relieve the beneficiary from performing the day-to-day tasks associated with these functions. 
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 spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). While it appears that the beneficiary would exercise the requisite 
authority over the U.S. company as its senior employee, the evidence of record falls short of establishing that 
the beneficiary would be performing primarily managerial or executive duties within one year, or establishing 
that the U.S. company will grow to the point where it will support a managerial position. 
WAC 08 027 50001 
Page 12 
Further, the regulations require the petitioner to establish the size of the U.S. investment and the ability of the 
foreign entity to compensate the beneficiary and commence business operations in the United States. See 8 
C.F.R. 5 214.2(1)(3)(v)(C)(2). The petitioner has repeatedly referred to a $100,000 investment in the U.S. 
company by the foreign entity to cover the cost of the beneficiary's salary, rent, and "other expenses" for the 
first year of operations, but the only evidence submitted to show that the foreign entity has transferred any 
funds to the petitioner is a wire transfer receipt in the amount of $97,409 on March 11, 2008, four months 
after the petition was filed. The purpose of the transfer was the purchase of the petitioner's stock. The 
petitioner has not established that the U.S. petitioner had received any type of funding or investment from the 
foreign entity as of the date the petition was filed. The petitioner must establish eligibility at the time of filing 
the nonimmigrant visa petition. 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. 
Comm. 1978). The lack of evidence in this regard further supports a finding that the petitioner was not in a 
position to immediately commence business operations and rapidly expand to the point where it would 
require the services of a qualifying managerial or executive employee. 
Based on the foregoing, the petitioner has not established that the U.S. company will support a primarily 
managerial or executive position within one year. Accordingly, the appeal will be dismissed. 
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 entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.