dismissed L-1A Case: Construction

identifying data deieteci to 
prevent clearly unwarmnted 
invasion of personat privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 09 073 5 1590 Office: VERMONT SERVICE CENTER Date: 
#pR 0 6 2010 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any hrther 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. fj 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). 
V Chief, Administrative Appeals Office 
EAC 09 073 51590 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to employ the beneficiary temporarily in the United States as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. $ 1101(a)(15)(L). The petitioner, a Delaware corporation established in April 2008, is described as a 
commercial and residential construction company. It claims to be a branch office of - 
located in Almaty, Kazakhstan. 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, determining that the petitioner had failed to establish that the beneficiary has 
been employed by the foreign entity in a primarily managerial or executive capacity, or that he would be 
employed in the United States in a primarily managerial or executive capacity.* 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner seeks to clarify the foreign 
' Pursuant to the regulation at 8 C.F.R. 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. 
2 Although the director denied the petition based on its merits, the AAO notes that the petition was improperly 
filed, and thus should have been rejected by the director at the time of filing pursuant to 8 C.F.R. 
103.2(a)(7)(i). The Form 1-129 petition identifies . as the employer and the 
petitioner. The regulation at 8 C.F.R. 103.2(a)(2) requires that the petitioner sign the petition. In this 
instance, no employee or officer o signed the Form 1-129. The only si nature on that 
form is that of who represents the petitioner as counsel. -signed Part 
6 of the Form 1-129, "Petitioner's Signature," thereby attempting to file the petition on behalf of the actual 
United States employer. She provided a limited power of attorney signed by the petitioner, authorizing her to 
"carry out all the legal immigration filings in order to obtain L-1 visa" for the beneficiary. However, the 
regulations do not permit who is not the petitioner or an employee or officer of the 
petitioner, to sign Form 1-129 on behalf of a United States employer. There is no regulatory provision that 
waives the signature requirement for a petitioning United States employer or that permits a petitioning United 
States employer to designate an attorney or accredited representative to sign the petition on behalf of the 
United States employer. 
The petition was not properly filed because the petitioning United States employer,- 
did not sign the petition. Pursuant to 8 C.F.R. § 103.2(a)(7)(i), an application or petition which is not 
properly signed shall be rejected as improperly filed, and no receipt date can be assigned to an improperly 
filed petition. 
Although did not properly file the instant petition, all references to "petitioner" in 
this decision refer to this entity. 
EAC 09 073 51590 
Page 3 
and U.S. entity's staffing levels and emphasizes that the director failed to take into account that the petitioning 
company is newly established in the United States. Counsel submits a brief in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 4 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hidher 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 petitioning company was established as a Delaware corporation in April 2008 and filed the instant 
petition on January 12, 2009. Although the petitioner failed to indicate on Form 1-129 that the beneficiary is 
coming to the United States to open or work in a new office, there is no evidence in the record which suggests 
that the company has engaged in any business activities in the United States. The AAO concurs that the U.S. 
entity is a "new office" as defined at 8 C.F.R. 4 214.2(1)(l)(ii)(~).~ 
The AAO notes that the petitioner indicated on Form 1-129, Part 5, that the company was established in 
April 2002 and has 9 permanent and 22 temporary employees. The petitioner has clarified on appeal that this 
information pertains to the foreign entity. However, it was not unreasonable for the director to believe that 
this information pertained to the U.S. petitioner, particularly in light of the petitioner's failure to indicate on 
the L Classification Supplement to Form 1-129 that the beneficiary is not coming to the United States to open 
a new office. 
EAC 09 073 51590 
Page 4 
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). Accordingly, the petitioner's and 
beneficiary's eligibility under the regulations pertaining to new office petitions, at 8 C.F.R. §214.2(1)(3)(~), 
will be addressed herein. 
The regulation at 8 C.F.R. $ 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 first issue to be addressed is whether the petitioner established that the beneficiary would be employed in 
the United States in a primarily managerial or executive capacity within one year of approval of the petition. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. § 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; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential fbnction within the organization, or a department 
or subdivision of the organization; 
EAC09073 51590 
Page 5 
(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. 9 1 101(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. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on January 12, 2009. The petitioner 
stated that the beneficiary will be employed as "manager" of the U.S. office, and where he will be "operating 
the company on a day to day basis. In charge of development, construction budgets, projects supervision, 
human resources, sales and marketing." 
The foreign entity submitted a brief statement regarding the beneficiary's current and proposed duties, stating: 
"Wages in the American branch of company (Dallas, Texas) is [sic] [$144,000], and the function 
responsibilities are - responsible for the investment planning and the trade." In a separate statement, the 
general director of the foreign entity stated that the beneficiary has been allotted "all rights and authorities to 
sign all agreements and documents, to make investment, to produce the estimation of projects and to search 
for cash resources for realizing of projects." 
The petitioner submitted a resolution of the Board of Directors of the foreign entity which indicates that the 
foreign company has authorized the opening of a branch office in Dallas, Texas, which is to receive funding 
from the foreign entity in the amount of $500,000. 
The petitioner did not provide any additional information regarding the beneficiary's proposed duties as 
manager, or information regarding the proposed nature of the new U.S. office, the scope of the entity, its 
organizational structure, and its financial goals. 
EAC 09 073 51590 
Page 6 
The director issued a request for additional evidence on January 16, 2009, in which he requested, inter alia, 
evidence to establish that the beneficiary will be employed in a managerial or executive capacity in the United 
States. Specifically, the director requested: (1) a comprehensive description of the beneficiary's proposed 
duties; (2) a list of U.S. employees which identifies each employee by name and position title; (3) complete 
position descriptions for all employees in the United States, including a breakdown of the number of hours 
devoted to each of the employee's job duties on a weekly basis, and the educational requirements for each 
position; and (4) a complete copy of the company's IRS Forms 941, Employer's Quarterly Federal Tax 
Return, for all three quarters of 2008. In addition, the director observed that the petitioner filed a second L- 
1A petition for the position of "manager" and requested that the petitioner "explain why your company 
requires two managers for nine (9) permanent employees." 
The petitioner submitted a response to the request for evidence on February 24, 2009. The petitioner did not 
include in its response the requested comprehensive description of the beneficiary's proposed duties or any 
additional information regarding the proposed position of "manager." The petitioner indicated that the U.S. 
company currently employs a full-time project manager who has a high school diploma, and is responsible for 
supervising and managing each project, overseeing all subcontractors, and selecting and purchasing materials. 
The petitioner also stated that it employs a secretary/treasurer/bookkeeper who works 30 hours per week and 
is responsible for maintaining corporate documents and handling accounts payable and receivable. 
The petitioner also submitted a list of "future employee requirements," which provides brief job descriptions, 
salaries and educational requirements for the positions of vice president of operations, director of real estate, 
construction supervisor, construction manager (four positions), and secretaries (three positions). 
Finally, in response to the director's request that the petitioner explain its need for two managers in the United 
States office, counsel stated: 
The reason would be to assist in establishing a branch of its company in this city and is based 
on project growth. If its request is granted, during the next few months it would employ a 
number of people in Dallas and other locations in the U.S.A. where they would establish 
locations. Its plans also call for expanding its activities to other cities and regions of the 
U.S.A., Canada and Latin America. Dallas would be the headquarters for this part of the 
world. The business would begin its operations as soon as the two managers arrive in Dallas. 
The director denied the petition on February 26, 2009, concluding that the petitioner failed to establish that 
the beneficiary would be employed in the United States in a primarily managerial or executive capacity. In 
denying the petition, the director noted that the petitioner failed to submit evidence to corroborate the staffing 
levels claimed at the time of filing, submitted inconsistent information regarding the number of employees 
working for the company, and failed to submit the requested evidence of wages paid to employees. The 
director found that the U.S. company currently employs, at most, only two employees and has not shown that 
it can support two managerial positions. The director concluded that the beneficiary would be engaged in the 
non-managerial, day-to-day operations of the business, and would not be managing an essential function or a 
subordinate staff comprised of supervisory, professional or managerial employees who could provide relief 
from performing the services of the corporation. 
EAC 09 073 5 1590 
Page 7 
On appeal, counsel for the petitioner seeks to clarify the petitioner's staffing levels, noting that the foreign 
entity, rather than the U.S. entity, currently has nine permanent employees. Counsel states that the petitioner's 
two employees, the project manager and secretaryttreasurer, were hired in February 2009, and therefore the 
petitioner had not yet filed an IRS Form 941 reflecting wages paid to these employees. With respect to the 
beneficiary's proposed role, counsel states: 
The managerial functions of [the beneficiary's] assignment within [the petitioning company] 
in Dallas will be to manage a department, subdivision, function or component of the 
organization and, in addition, supervise and control the work of other supervisory, 
professional or managerial employees and will manage an essential function within [the 
petitioner] in Dallas - the same type of functions he is presently performing at this time for 
[the foreign entity] in Kazakhstan. . . . [The beneficiary] is listed [on the attached 
organizational] chart as the Operations General Manager and would have under his authority 
and command a Director of Operations, Finance, Project Manager, Director of Real Estate & 
Land Acquisition. The reason why [the beneficiary] is not already performing these 
functions in the U.S. branch is due to the fact that he is awaiting his L1 visa to be approved. 
As soon as it is approved he will come to Dallas to take charge of his position as manager - 
in accordance with the chart enclosed - and will start hiring the necessary staff to carry out 
the objectives of the U.S. branch of [the petitioner], in order to direct the day-to-day 
operations. 
The petitioner submits a proposed organizational chart for the U.S. company which indicates that the 
beneficiary will directly supervise a director of operations, who will in turn supervise a finance employee, a 
director of real estatelland acquisition and a project manager. The chart depicts construction managers, 
subcontractors and job supervisors who would report to the project manager, and outside real estate brokers 
and a marketing person who would report to the director of real estate and land acquisition. The only position 
subordinate to the beneficiary that the petitioner claims has already been filled is the project manager position. 
The petitioner submitted brief position descriptions for each proposed position, and stated that the 
beneficiary's proposed duties include the following: 
Oversee all operations 
Job Selection 
Budget Analysis 
Project distribution 
Approve bidding 
Report to CEO 
International Project Analysis & Coordinator 
Finally, the petitioner submitted a copy of electronic mail correspondence dated March 10, 2009 which 
appears to be a job posting placed by the U.S. company. It is unclear whether the advertisement is in draft or 
final form, and there is no indication as to when or where it was posted. The ad lists position openings for an 
accountant, a director of real estate land acquisition, and "someone for marketing, finance, sub contractor and 
job supervisor." 
EAC 09 073 51590 
Page 8 
Upon review, the petitioner's assertions and additional evidence are not persuasive. Despite some 
misunderstanding on the part of the director in analyzing the petitioner's staffing levels, and the director's 
failure to recognize that the petitioner is a "new office" as defined at 8 C.F.R. § 214.2(1)(l)(ii)(F), the AAO 
concurs with the director's ultimate conclusion that the petitioner failed to establish that the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity. 
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
USCIS regulation, which allows for a more lenient treatment of managers or executives that are entering the 
United States to open a new office. 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. In an accommodation that is more lenient than the strict language of the statute, the "new office" 
regulations allow a newly established petitioner one year to develop to a point that it can support the 
employment of an alien 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)(~). At the time of filing the petition to open a 
"new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to 
house the new office and that it will support the beneficiary in a managerial or executive position within one 
year of approval. Specifically, 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. Id. 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. 
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 marketlprospective 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 
EAC 09 073 5 1590 
Page 9 
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. 
Id. 
Here, the petitioner has not established that the beneficiary will be performing primarily managerial or 
executive job duties within one year, nor has it adequately described the nature of the new U.S. office, the 
scope of the entity, its organizational structure, and its financial goals. 
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. $ 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. 
Counsel's initial description of the beneficiary's duties was general and non-specific, providing little insight 
into what specific tasks the beneficiary will perform beyond generalities. For example, the petitioner stated 
that the beneficiary will be "operating the company on a day to day basis," and "in charge of development, 
construction budgets, projects supervision, human resources, sales and marketing." The petitioner failed, 
however, to describe any duties the beneficiary would perform within these broad areas of responsibility. 
This lack of specificity is critical, as duties such as "operating the company," and "sales and marketing" do 
not appear to fall within the statutory definitions of managerial or executive capacity. 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Accordingly, the director requested a comprehensive description of the beneficiary's proposed duties and an 
explanation as to how the duties will be managerial or executive in nature. While the petitioner submitted a 
response to the RFE, the petitioner did not respond to this specific request, or otherwise provide any 
additional information regarding the beneficiary's proposed job duties. The regulation states that the petitioner 
shall submit additional evidence as the director, in his or her discretion, may deem necessary. The purpose of 
the request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought 
has been established, as of the time the petition is filed. See 8 C.F.R. $4 103.2(b)(8) and (12). The failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 
C.F.R. $ 103.2(b)(14). 
The AAO acknowledges that counsel has sought to clarify the beneficiary's duties on appeal, noting that the 
beneficiary will "manage a department, subdivision, hnction or component of the organization," "supervise 
and control the work of other supervisory, professional, or managerial employees," and "direct the day-to-day 
operations of the company." The petitioner also adds that the beneficiary will "oversee all operations," 
"approve bidding," and perform job selection, budget analysis, project distribution and international project 
analysis and coordination. These nonspecific and general descriptions of the beneficiary's proposed role 
EAC 09 073 51590 
Page 10 
cannot be accepted in lieu of the comprehensive job descriptions specifically requested by the director. 
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 proposed activities in the course of his daily routine. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. at 1108. 
The definitions of executive and managerial capacity each 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, Znc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). While the AAO does not doubt that the beneficiary will 
exercise the appropriate level of authority over the business as its president and owner, the petitioner must 
establish that his duties will be primarily managerial or executive in nature within one year of commencing 
the new business in the United States. As the petitioner has not provided a detailed description of the 
beneficiary's duties sufficient to demonstrate what will constitute the beneficiary's primary duties, it has failed 
to meet its burden and the petition cannot be approved. 
Furthermore, in the case of a new office, the AAO will view the beneficiary's proposed duties in view of the 
petitioner's proposed organizational structure, the nature of the business, business plans, financial projections, 
and other factors to determine whether the petitioner will reasonably support a managerial position within one 
year. The petitioner must establish that the beneficiary will be relieved from having to primarily perform the 
daily operational tasks of the business within one year. 
The petitioner claims to have hired a project manager and a secretaryltreasurer, but has failed to submit any 
evidence to establish that these positions have been filled. The petitioner indicates that its first IRS Form 941 
does not have to be filed until after March 3 1, 2009; however, it could have provided alternative evidence of 
payments to its claimed employees. Moreover, the petitioner claims that it will hire staff to fill the positions of 
director of operations, finance, director of real estate, marketing, accounting, construction manager and 
construction supervisor. However, the petitioner has provided no timetable for hiring these employees, no 
hiring plan, no business plan, and no other evidence that would support a finding that the company will be 
fully staffed within one year of approval of the petition. The petitioner also failed to submit any evidence of 
the company's financial projections and objectives and therefore, the AAO has no basis to determine whether 
the petitioner could feasibly hire the proposed staff within one year. The e-mail correspondence submitted on 
appeal referencing the company's job openings, which was prepared several weeks after the denial of the 
petition, is insufficient to support a finding that the company will grow quickly and hire sufficient staff to 
relieve the beneficiary from performing the "day-to-day operations," sales, marketing and other non- 
qualifying duties listed in his general job description. 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 California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
The AAO cannot speculate as to when the proposed employees might be hired or otherwise determine how 
many employees the company would support at the end of the ftrst year of operations, or who would be 
EAC 09 073 5 1590 
Page 11 
performing the day-to-day, non-managerial functions of the petitioner's construction company. There is 
insufficient evidence to support the petitioner's claim that the beneficiary would supervise subordinate 
managers, supervisors or professionals within one year. 
Overall, in light of the petitioner's failure to provide the requested comprehensive job description for the 
beneficiary, and given the lack of detail regarding the petitioner's business plan, hiring plan and financial 
objectives for the first year of operations, the petitioner has not established that the beneficiary will perform 
primarily managerial or executive duties or that the new company could support a managerial or executive 
position within one year. For this reason, the appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner established that beneficiary was been 
employed by the foreign entity in a primarily managerial or executive capacity. 
The petitioner indicated on Form 1-129 that the beneficiary is the foreign entity's senior vice president and 
chairman of the board member. The petitioner stated that he is "responsible for the budget and trade," and 
"responsible for the performance and policy of the company." The petitioner submitted a letter from the 
foreign entity, which stated the following with respect to the beneficiary's current overseas position: 
[The beneficiary] is the chairman of the council of Directors, the member of general meeting; 
achieves control of the budget, companies. Control and supervision of the trade are achieved; 
responsible for the performance of the general policy of company. 
In the request for evidence issued on January 16, 2009, the director instructed the petitioner to provide the 
following additional evidence to establish that the beneficiary has been employed abroad in a primarily 
managerial or executive capacity: (1) an organizational chart for the company, indicating the beneficiary's 
position within the hierarchy; (2) a description of the typical managerial responsibilities performed by the 
beneficiary abroad, supported by documentary evidence; (3) the number of subordinate supervisors who 
worked under the beneficiary's management; (4) the job titles and duties of the employees he managed; (5) 
the amount of time the beneficiary allotted to executive duties and to non-executive duties; and (6) the degree 
of discretionary authority in day-to-day operations the beneficiary had in the overseas position. 
In response, the petitioner submitted a letter from the foreign entity. In response to the director's request for a 
description of the beneficiary's typical managerial responsibilities, the foreign entity stated: 
[The beneficiary] is a Chairman of the Committee of Directors, member of the General 
Meeting; he supervises the budget, Company. He controls and supervises over trade; he is 
responsible for fulfillment of the general policy of the Company. 
Counsel stated that the beneficiary supervises two subordinate supervisors, an accountant who has "control 
over finances," and an auditor who performs "audit for bookkeeping in general." 
Finally, the petitioner submitted an organizational chart for the foreign entity; however, neither the 
beneficiary nor any other employees were identified by name on the chart. The chart shows that the 
"chairman of the general meeting" and the "chairman of the committee of directors" jointly supervise the 
EAC 09 073 51590 
Page 12 
general director, who in turn supervises all lower-level employees. Positions identified on the chart include 
the general director's assistant, an office manager, a general accountant, a bookkeeping department, a deputy 
assistant on legal matters, a site manager, a legal office, engineering supervision workers, engineering skills 
workers, workers, internal audit, cash office, drivers, security guards and chamber maids. 
In denying the petition, the director determined that the minimal evidence submitted in response to the RFE 
was insufficient to establish that the beneficiary has been employed by the foreign entity in a primarily 
managerial or executive capacity. The director observed that the petitioner failed to describe the typical 
managerial responsibilities the beneficiary performed abroad, and failed to submit an organizational chart 
which clearly depicts the beneficiary's position within the company's overall organizational structure. 
On appeal, the petitioner provides additional information regarding the beneficiary's duties and the structure 
of the foreign entity. Specifically, the petitioner indicates that the beneficiary's responsibilities include the 
following: 
Implementation of a control of company budget and trade supervision 
Responsible for fulfillment of general policy of the company 
In addition, the petitioner stated that the beneficiary's duties include: 
Directly does delivery matters and purchasing of equipment fiom abroad 
Get an [sic] weekly reports about company's income and expenditure and estimates a 
company's quarter budget 
Examines a financial reports [sic] and implementation of delivery agreements 
Controls a rest of materials at warehouses. 
The petitioner indicates that the beneficiary directly supervises an accountant, and an auditor, 
and one accountant. The subordinate 
accountants are identified as 
In addition, the petitioner submits an organizational chart for the foreign entity on which all position holders 
are identified by name. The beneficiary is identified as holding the position of chairman of the committee of 
directors with only one direct subordinate, the general director. 
As noted above, the petitioner clarifies on appeal that the foreign entity has nine employees and 20 or more 
temporary employees. The petitioner provides a list of permanent employees which includes the beneficiary, 
the general director, the chairman of the council of directors, a chief accountant, two accountants, a lawyer, a 
maid and a driver. The petitioner also provides a list of temporary employees, which includes two maids, two 
drivers, four security staff, two workers, three engineers, three accountants, a general director, an office 
manager, a lawyer, and an economic advisor. 
Of the beneficiary's claimed subordinates, the AAO notes that appears on the 
organizational chart as "accountant" and "internal audit," but is not list-~ 
is listed on the organizational chart as "bookkeeping" and is listed as ''deputy chief accountant" on 
EAC 09 073 5 1590 
Page 13 
the temporary employee list." does not appear on the organizational chart at all, but is 
listed as an accountant on the permanent employee list, and as a maid on the temporary employee list. Finally, 
is listed on the organizational chart as the assistant to the general director. There is an 
employee listed as "chief accountant" on the permanent employee list, but this individual does not appear on 
the organizational chart. 
Upon review, the petitioner has not established that the petitioner has been employed by the foreign entity in a 
primarily 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(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. Id. 
The petitioner initially described the beneficiary's position with the foreign entity in only general terms, 
noting that the beneficiary's duties included "budget and trade" and responsibility for "the performance and 
policy of the company." This description provides little insight into what specific managerial or executive 
duties the beneficiary performs on a day-to-day basis, and no indication as to his level of supervisory 
authority over budget and trade functions, what he does to ensure the performance of the company, or the 
types of company policies he has developed or implemented. 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. Sava, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Accordingly, the director requested a detailed description of the typical managerial responsibilities the 
beneficiary performs, and requested that the petitioner "please articulate and submit documentary evidence of 
the managerial decisions made by the beneficiary on behalf of the foreign organization." The petitioner's 
response essentially restated the vague duties provided at the time of filing and offered no insight into the 
nature of the beneficiary's duties. The petitioner stated that the beneficiary "achieves control of the budget," 
controls and supervises trade, and "is responsible for the performance of the general policy of the company." 
These statements were non-responsive to the director's request for a detailed description of the beneficiary's 
typical responsibilities. Furthermore, the petitioner did not submit any evidence in response to the director's 
request that the petitioner "articulate and submit documentary evidence of the managerial decisions" the 
beneficiary has made. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165 (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. tj 
103.2@)(14). 
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. As with the beneficiary's 
proposed U.S. position, the petitioner has failed to provide any detail or explanation of the beneficiary's 
activities in the course of his daily routine. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. Here, the petitioner has not established 
EAC 09 073 51590 
Page 14 
with sufficient specificity what duties the beneficiary primarily performs, such that they could be classified as 
managerial or executive in nature. The AAO will not accept a vague job description and speculate as to what 
qualifying duties may be involved. A beneficiary's "control," management or direction over a company cannot 
be assumed or considered "inherent" to his position merely on the basis of broadly-cast job responsibilities. 
On appeal, the petitioner once again reiterates that the beneficiary is responsible for implementation of a 
company budget, trade supervision, and fulfillment of general policy of the company, a description which the 
director already found to be insufficient to establish the beneficiary's eligibility as a manager or executive. 
The petitioner states that the beneficiary's responsibilities include "directly does delivery matters and 
purchasing of equipment," "get an [sic] weekly reports about company's income," "examines a financial 
reports [sic] and implementation of delivery agreements," and "controls a rest of materials at warehouses." 
These duties are poorly articulated, vague, and otherwise insufficient to establish that the beneficiary's duties 
are primarily managerial or executive in nature. Rather, the duties suggest that the beneficiary is directly 
performing non-qualifying duties related to purchasing, delivery and warehouse functions. An employee who 
"primarily7' performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology Zntn 'l., 19 I&N Dec. 593,604 (Comm. 1988). 
The definitions of executive and managerial capacity each 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). Thus, the fact that the beneficiary owns and manages a 
business does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial or executive capacity as defined by sections 101(a)(44)(A) and (B) of the Act. The record must 
establish that the majority of the beneficiary's duties fall within the statutory definitions of managerial or 
executive capacity. The AAO does not doubt that the beneficiary exercises the requisite level of authority 
over the foreign entity as one of the higher ranked among its nine permanent employees. However, due to the 
petitioner's failure to provide a sufficiently detailed description of the beneficiary's day-to-day duties, and a 
breakdown of how the beneficiary's time has been allocated among managerial and non-managerial tasks, the 
petitioner has not established that the beneficiary was employed abroad in a primarily managerial or executive 
capacity. 
Moreover, the petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, 
rather the AAO must determine based on a totality of the record whether the description of the beneficiary's 
duties represents a credible perspective of the beneficiary's role within the organizational hierarchy. When 
examining the managerial or executive capacity of a beneficiary, USCIS reviews descriptions of a 
beneficiary's duties and those of his or her subordinate employees, the nature of the petitioner's business, and 
any other facts contributing to a complete understanding of a beneficiary's actual role in a business. 
As noted above, of the two employees claimed to be the beneficiary's direct subordinates, one of them does 
not appear on either of the foreign entity's employee lists, while the other is a temporary employee. The two 
remaining employees claimed to report to the beneficiary indirectly have been given multiple job titles and 
EAC 09 073 5 1590 
Page 15 
their exact functions within the company is unclear. Therefore, while the petitioner indicates that the 
beneficiary supervises two employees who in turn supervise two additional lower-level employees, the 
discrepancies in the record prohibit a determination as to the actual composition of the beneficiary's 
subordinate staff. Xn addition, notwithstanding the supervisory job titles assigned to some of the beneficiary's 
subordinates, the sole employee among the beneficiary's named subordinates who is depicted as holding a 
supervisory-level position,, does not appear on the foreign entity's employee lists. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 9 1 101(a)(44)(A)(i) and (ii). Contrary 
to the common understanding of the word "manager," the statute plainly states that 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)(A)(iv) of the Act; 8 C.F.R. 3 
214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other employees, the beneficiary must also have the 
authority to hire and fire those employees, or recommend those actions, and take other personnel actions. 8 
C.F.R. tj 2 14.2(1)(1)(ii)(B)(3). 
The petitioner's evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or manager position. An employee will not be considered to be a manager or 
supervisor simply because of a job title, because he or she is arbitrarily placed on an organizational chart in a 
position superior to another employee, or even because he or she supervises daily work activities and 
assignments. See generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 
2003) (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at "16 (E.D. Tex. Jan. 1 1,2007)). Rather, the 
employee must be shown to possess some significant degree of control or authority over the employment of 
subordinates. As discussed above, the petitioner's claim that the beneficiary oversees two supervisors is not 
adequately supported due to the discrepancies noted with regard to the organizational chart and employee 
lists. Furthermore, the petitioner has not provided evidence regarding the duties performed by the 
beneficiary's claimed subordinates sufficient to establish that the beneficiary's subordinates qualify as 
supervisors or professionals.4 Finally, the petitioner has not stated that the beneficiary has the authority to 
hire and fire subordinate staff or to recommend these and other personnel decisions. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 @.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by subordinate employee. The possession of a bachelor's 
degree by a subordinate employee does not automatically lead to the conclusion that an employee is employed 
in a professional capacity as that term is defined above. 
EAC 09 073 51590 
Page 16 
Based on the lack of a sufficiently detailed position description for the beneficiary and the unresolved 
discrepancies in the record regarding the beneficiary's subordinate staff, the petitioner has not established that 
the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. 
Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the record as presently constituted does not contain evidence that the 
petitioner had secured adequate physical premises to house the new office in the United States as of the date 
the petition was filed. See 8 C.F.R. § 214.2(1)(3)(v)(A). 
The petitioner stated on Form 1-129 that its address is in Dallas, Texas. In the 
request for evidence issued on January 16, 2009, the director requested photographs of the interior and 
exterior of its business premises, as well as a letter £rom the owner of the building or management company 
verifying the petitioner's occupancy of the premises. 
In response, the petitioner submitted an "ofice service agreement" entered into on January 28, 2009 by the 
petitioner and Meridian Business Centers. The agreement has an initial term of seven months commencing on 
February 2, 2009. The agreement provides the petitioner with the use of one office with two desks, chairs and 
Internet connections, with access to conference rooms and kitchen facilities. 
The lease agreement submitted in response to the RFE does not establish the petitioner's eligibility pursuant to 
8 C.F.R. 9 214.2(1)(3)(v)(A). 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). 
Absent evidence that the petitioner had a valid lease agreement for the premises at the address stated on the 
Form 1-129, or some other business premises, as of January 12,2009, the petitioner has not met this eligibility 
requirement and the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.