dismissed L-1A Case: Construction/Design Consulting

identifying $!+? :'sl$ted to 
Pmv=g *iy mwamEted 
invasimof MMCY 
LIPS. Departmer~t of Homeland Sec~~rity 
20 Massachusetts Ave. N. W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
File: EAC 08 069 51635 Office: VERMONT SERVICE CENTER Date: SEP 3 0 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1101(a)(15)(L) 
IN 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 further inquiry must be made to that office. 
t.dik{l~ 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 08 069 5 1635 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the 
appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of the beneficiary as its 
president as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(15)(L). The petitioner, a corporation 
organized in the State of New York, is engaged in construction, design and consulting services, 
particularly for restaurants and related establishments. It claims to be the subsidiary of Machan Restaurant 
and Machan Group, located in Nagpur, India. The beneficiary was previously granted one year in L-1A 
status in order to open a new office in the United States and the petitioner seeks to extend the 
beneficiary's stay for two additional years. 
On May 6, 2008, the director denied the petition, concluding that the petitioner did not establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
Specifically, the director noted that the beneficiary appeared to be engaged primarily in the performance 
of necessary functions for the petitioner, and did not appear to have subordinate employees to relieve him 
from performing such non-qualifying tasks. Consequently, the director concluded that the beneficiary 
was not acting primarily as a manager or executive as required by the regulations. 
On appeal to the AAO, counsel for the petitioner contends that the director's decision in this matter 
erroneously focused on the size of the petitioning organization and thus unfairly prejudiced the petitioner 
and beneficiary. Moreover, counsel argues that the director ignored his repeated requests to treat the 
petitioner as a new enterprise and thus a new office under the applicable regulations. 
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 Forrn 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. 
EAC 08 069 5 1635 
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 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 regulation at 8 C.F.R. 9 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening 
of a new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and 
the duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 4 1 10 l(a)(44)(A), defines the term "managerial capacity" as 
an assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component 
of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, 
or a department or subdivision of the organization; 
EAC 08 069 5 1635 
Page 4 
(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 10 1 (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 request for extension, filed on Fonn 1-129 on January 8, 2008, indicated that the petitioner currently 
employed two persons plus an unspecified number of independent contractors. In a letter of support dated 
January 2, 2008, the petitioner provided a brief overview of the beneficiary's position in the United 
States. The petitioner stated as follows: 
[The beneficiary's] responsibilities within [the petitioner] have been including the following: 
a. Coordinates, oversees, directs and administers start-up operations, 
investment decisions, capital expenditures, resource allocation decisions, 
policy formulation and coordination of the same with the Indian parent 
company, among other discretionary matters - essentially - provides 
strategic guidance and leadership; 
b. 
 Develops and oversees corporate policy matters, including the supervision 
and hiring of managerial, professional supervisory level personnel; corporate 
policy enforcement through subordinate managers, and major business 
negotiations; 
EAC 08 069 5 1635 
Page 5 
c. 
 Establishes, develops, cultivates and oversees initial and subsequent business 
relations, affiliations, suppliers, customers; oversee major negotiations and 
other relevant discretionary matters to ensure effective startup and long term 
growth; 
d. 
 Develops and implements policies, marketing plans and strategies for long 
term growth, goals and objectives, including but not limited to financial 
objectives and other aspects of entity development; 
e. Establishes quality control guidelines and procedures, including R&D 
matters, which will have substantial impact on [the petitioner's] 
productslservices, industry reputation and long-term growth; 
f. 
 Develops and oversees employee and independent contractor training, hiring 
and discharge policies, specifically managerial level employees such as 
project managers, sales and marketing directorslmanagers and establishment 
and enforcement of other related corporate policies and objectives. 
The petitioner also stated: "It must be emphasized that [the beneficiary] has directly performed the 
important sales and marketing functions of [the petitioner] ." 
On March 3, 2008, the director issued a request for evidence. 
 Specifically, the director requested 
additional evidence to establish that the beneficiary will be employed in a managerial or executive 
capacity, including but not limited to a comprehensive overview of the beneficiary's duties, an 
organizational chart for the petitioner with position descriptions and job titles for all of the beneficiary's 
subordinates, and the amount of time the beneficiary allocated to managerial/executive functions in 
comparison to the time allocated to non-qualifying functions. The director also requested evidence of 
wages paid to employees and contractors. 
In a response dated April 16, 2008, the petitioner submitted an updated overview of the beneficiary's 
duties. Specifically, the petitioner provided the following overview with a percentage breakdown of the 
time devoted to each of his tasks: 
a. 
 Manages, coordinates, oversees, directs and administers the operations of the 
company as well as: investment decisions, capital expenditures, resource 
allocation decisions, policy formulation and coordination of the same with the 
Indian parent company, among other discretionary matters - essentially - 
provides strategic guidance and leadership; (50%) 
b. Manages and directs the overall administrative and financial operations of the 
company including developing and implementing marketing, sales and 
promotion policies, strategies, programs and [sic] (30%) 
EAC 08 069 51635 
Page 6 
c. Establishes, develops, cultivates and oversees initial and subsequent business 
relations, affiliations, suppliers, customers; oversee major negotiations and other 
relevant discretionary matters to ensure effective startup and long term growth; 
(5%) 
d. Develops and implements policies, marketing plans and strategies for long term 
growth, goals and objectives, including but not limited to financial objectives and 
other aspects of entity development; (5%) 
e. Establishes quality control guidelines and procedures, including R&D matters, 
which will have substantial impact on [the petitioner's] products/services, 
industry reputation and long-term growth; (5%) 
f. 
 Develops and oversees employee and independent contractor training, hiring and 
discharge policies, specifically managerial level employees such as project 
managers, sales and marketing directorslmanagers and establishment and 
enforcement of other related corporate policies and objectives. (5%) 
Counsel additionally provided information pertaining to the other employee of the petitioner, namely, 
Vice President. Counsel contended that is a professional employee by virtue of 
her possession of a master of arts in lighting and design from the Parsons School of ~esign.' The 
petitioner stated that the beneficiary also employs professional designers as consultants. The petitioner 
did not provide the requested position description for the vice president or describe the services 
performed by the claimed consultants and contractors. As evidence of wages paid to employees and 
contractors, the petitioner submitted a copy of the beneficiary's 2007 Form W-2 and a copy of a Form 
1099 issued to who received $5,200 in non-employee compensation. The petitioner did not 
provide evidence of any payments made to the vice-president. 
In the alternative, counsel asserted that the beneficiary qualified as a function manager in that he oversees 
essential functions and operations of the petitioner and is thus a key functional person within the 
petitioning entity. 
1 
 It is noted that the director erroneously believed that s diploma was submitted on behalf of the 
beneficiary, and rejected its evidentiary value because the names did not coordinate. Moreover, the 
director overlooked the petitioner's claim to employ 
 as vice president of the company. The 
director's error is harmless because the MO conducts a de novo review, evaluating the sufficiency of the 
evidence in the record according to its probative value and credibility as required by the regulation at 8 C.F.R. 
5 245a.2(d)(6). 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 cows. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
EAC 08 069 5 1635 
Page 7 
On May 6, 2008, the director denied the petition, concluding that the petitioner did not establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
Specifically, the director noted that the beneficiary appeared to be engaged primarily in the performance 
of necessary functions for the petitioner, and did not appear to have subordinate employees to relieve him 
from performing such non-qualifying tasks. Consequently, the director concluded that the beneficiary 
was not acting primarily as a manager or executive as required by the regulations. 
On appeal, counsel contends that the director's decision in this matter erroneous focused on the size of the 
petitioning organization and thus unfairly prejudiced the petitioner and beneficiary. Moreover, counsel 
argues that the director ignored his repeated requests to treat the petitioner as a new enterprise and thus a 
new office under the applicable regulations. 
Upon review, the AAO concurs with the director's findings. 
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. fj 214.2(1)(3)(ii). 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 primarib 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). 
In this matter, the petitioner provided a generic description of duties for the beneficiary, which essentially 
paraphrases the regulatory definitions and provide minimal insight into a typical day for the beneficiary. 
Therefore, it is difficult for the AAO to decipher the exact nature of the beneficiary's role in the company. 
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). 
In this matter, the petitioner provides a broad and nonspecific overview of the beneficiary's alleged 
duties. For example, the petitioner states that one of the tasks the beneficiary performs is "develop[ing] 
and implement[ing] policies, marketing plans and strategies for long term growth, goals and objectives, 
including but not limited to financial objectives and other aspects of entity development." While on the 
surface, the task sounds professional in nature, in retrospect, it is actually an imprecise description of a 
general area of business. It is unclear how the beneficiary operates as a manager in light of this broad 
description of duties. 
Consequently, the director requested a breakdown of the percentage of time the beneficiary devotes to 
each duty. The petitioner responded by claiming that 50% of the beneficiary's time was spent as follows: 
Manages, coordinates, oversees, directs and administers the operations of the company as 
well as: investment decisions, capital expenditures, resource allocation decisions, policy 
EAC 08 069 51635 
Page 8 
formulation and coordination of the same with the Indian parent company, among other 
discretionary matters - essentially - provides strategic guidance and leadership 
An additional 30% was claimed to be spent doing as follows: 
Manages and directs the overall administrative and financial operations of the company 
including developing and implementing marketing, sales and promotion policies, strategies, 
programs. 
Again, while professional sounding on their face, these descriptions shed minimal light on an actual 
workday for the beneficiary. 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 answer a critical question in this case: What does the beneficiary 
primarily do on a daily basis? The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner further contends that the beneficiary supervises of the vice president, who holds a masters 
degree in lighting and design, establishes that he is a managerial employee since he is supervising a 
professional. Although the beneficiary is not required to supervise personnel, if it is claimed that his 
duties involve supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See 3 10 1 (a)(44)(A)(ii) of the Act. 
There are two problems with the petitioner's assertions. 
 First, the petitioner provided minimal 
information with regard to the vice-president. 
 Despite the director's specific request for detailed 
information pertaining to the wages paid to its employees, the petitioner failed to provide documentation 
of the vice-president's employment with the company. This, coupled with the petitioner's failure to 
provide a position description for the vice-president renders it nearly impossible to determine the nature 
of this employee's role in the company and the manner in which she works with the beneficiary. Failure 
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 3 103.2(b)(14). As a result, the MO cannot determine whether the vice-president was 
actually employed with the petitioner and/or whether she performed professional or managerial duties. 
Second, the absence of additional information regarding the nature of the vice-president's claimed 
position with the company precludes a finding that the possession of a baccalaureate degree is required to 
perform the duties of her position. In evaluating whether the beneficiary manages professional 
employees, the MO 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. 3 1 101(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 slull, 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 
EAC 08 069 51635 
Page 9 
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.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 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. In the instant case, the petitioner has not, in fact, established that a bachelor's degree (or 
masters degree, in this case) is actually necessary, for example, to perform the services of the 
vice-president. 
In addition, the petitioner submits evidence of payment to and contracts with Hilton Construction, and 
claims that Hilton Construction qualifies as personnel which the beneficiary supervises. The minimal 
documentation pertaining to the nature of their relationship with Hilton, and the extent of influence and 
contact which the beneficiary asserts over said company, is insufficient to warrant a conclusion that the 
beneficiary is acting in a primarily managerial capacity. For example, it appears that the petitioner has a 
business relationship with Hilton, but there is no information regarding the specific nature of the 
relationship or the nature of the labor or number of contractors. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJicz, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). For the reasons discussed above, the AAO cannot conclude that the 
beneficiary will be employed in a primarily managerial or executive capacity. 
In the alternative, counsel asserts that the beneficiary qualifies as a function manager. The term "function 
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate 
staff but instead is primarily responsible for managing an "essential function" within the organization. 
See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 3 1101(a)(44)(A)(ii). The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must furnish a written job offer that clearly describes the duties to be performed, 
i.e. identify the function with specificity, articulate the essential nature of the function, and establish the 
proportion of the beneficiary's daily duties attributed to managing the essential function. 8 C.F.R. 3 
214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate 
that the beneficiary manages the function rather than performs the duties related to the function. An 
employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 
(Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N 
Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner has not provided evidence that the 
beneficiary manages an essential function. 
While performing non-qualifying tasks necessary to produce a product or service will not automatically 
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the 
petitioner still has the burden of establishing that the beneficiary is "primarily" performing managerial or 
executive duties. Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" 
EAC 08 069 5 1635 
Page 10 
manager turns in part on whether the petitioner has sustained its burden of proving that his duties are 
"primarily" managerial. 
In the present matter, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as managerial, but it fails to quantify the time the beneficiary spends on them. Although the 
petitioner did provide a breakdown of the percentage of time the beneficiary devotes to each specific area 
of duties, merely claiming that 50% of his time is devoted to managing and coordinating resource 
allocation or policy formation is still indicative of his active participation in such tasks, and not the mere 
management or direction of such an area. Moreover, the AAO notes that initially, the petitioner claimed 
that the beneficiary actually performed the sales and marketing functions for the company, though later 
the petitioner claimed that he merely manages these functions without providing specific examples of the 
manner in which he executes this management. Absent a clear and credible breakdown of the time spent 
by the beneficiary performing his duties as opposed to managing or delegating such duties to others, the 
AAO cannot determine what proportion of his duties would be managerial or executive, nor can it deduce 
whether the beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. 
US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Finally, counsel contends that the director erroneously relied on the small size of the company in 
prejudicially denying the petition. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 
1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. Moreover, in reviewing the 
relevance of the number of employees a petitioner has, federal courts have generally agreed that CIS 
"may properly consider an organization's small size as one factor in assessing whether its operations are 
substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 
(D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for CIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial or 
non-executive operations of the company, or a "shell company" that does not conduct business in a 
regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp 2d 7, 15 (D.D.C. 2001). 
Furthermore, in the present matter, the regulations provide strict evidentiary requirements for the 
extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. 9 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214,2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an 
executive or managerial position. 
A review of the record indicates that the petitioner filed a petition on November 16, 2006, seeking to 
employ the beneficiary as its president to open a new office in the United States. The petition was 
approved, and the beneficiary was granted a one-year period of stay from January 9, 2007 to January 8, 
EAC 08 069 5 1635 
Page 11 
2008. The instant petition involves an extension request for the original petition. Counsel repeatedly 
argues that the U.S. petitioner only commenced its business operations in JulyIAugust 2007 and thus 
should be considered a new office for purposes of review. This argument is flawed. The only provision 
that allows for the extension of a "new office" petition requires the petitioner to demonstrate that it has 
been staffed and has been "doing business" in a regular, systematic, and continuous manner for the 
previous year. 8 C.F.R. 5 214.2(1)(14)(ii). 
There is no provision in CIS regulations that allows for an extension of this one-year period. If the 
business does not have sufficient staffing after one year to relieve the beneficiary from primarily 
performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. 
In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
The petitioner has failed to establish that the beneficiary will be employed in a predominantly managerial 
or executive position. For this reason, the appeal will be dismissed. 
Moreover, the record does not contain sufficient evidence that the petitioner has been engaged in the 
regular, systematic, and continuous provision of goods andlor services in the United States for the entire 
year prior to filing the petition to extend the beneficiary's status. The petitioner, by its own admission, 
claims that its business dealings were delayed until JulyIAugust of 2007, at least six months after the 
initial petition's approval. While it is noted that the record contains copies of invoices from March and 
April of 2007, as well as quarterly profit and loss statements showing income for the first two quarters of 
2007, this evidence is not sufficient to establish that the petitioner was continuously doing business 
during the relevant period as required. Pursuant to the regulation at 8 C.F.R. fj 214.2(1)(14)(ii)(B), the 
petitioner is expected to submit evidence that it has been doing business since the date of the approval of 
the initial petition. In the instant case, there is no evidence that the petitioner engaged in the regular, 
systematic, and continuous provision of goods andlor services in the United States for the entire year 
prior to filing the petition to extend the beneficiary's status. For this additional reason the petition may 
not 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). 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with 
the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.