dismissed L-1A Case: Convenience Store

t adentin 0 ? J~~:Q 
ded to Prevent ii mdrr3nted 
invasion of personal ~vacy 
U.S. Department of Homeland Secudty 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: WAC 09 005 50548 Office: CALIFORNIA SERVICE CENTER Date: MAR 0 4 2010 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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 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. 5 103.5 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, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
V Chief, Administrative Appeals Office 
WAC 09 005 50548 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant petition and 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)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 3 1101(a)(15)(L). The petitioner, a Pennsylvania limited liability company established in May 2008, 
states that it will operate a convenience store and gas station. It claims to be a subsidiary of -1 
, located in India. The petitioner seeks to employ the beneficiary as the manager of its new office in 
the United States for a period of one year 
The director denied the petition concluding that the petitioner failed to establish that the U.S. company would 
employ the beneficiary in a primarily managerial or executive capacity within one year of the approval of the 
petition. 
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 asserts that the director 
should not have denied the petition based on a lack of evidence without first requesting all of the initial 
evidence required for a new office petition pursuant to 8 C.F.R. 5 214.2(1)(3)(v)(C). Counsel contends that 
the director's decision "was largely based on conjecture and speculation." Counsel submits a brief and 
additional documentary evidence in support of the appeal. 
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. 3 214.2(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. 
WAC 09 005 50548 
Page 3 
(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 United States operation, 
within one year of the approval of the petition, will support an executive or managerial position. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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; 
WAC 09 005 50548 
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 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1(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. 
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. 5 
2 1 4.2(1)(3)(v)(B). 
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 
WAC 09 005 50548 
Page 5 
"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 petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on October 7, 2008. The petitioner 
stated that the beneficiary will serve in the position of manager, with responsibility to "manage a Sunoco gas 
station and convenience store." The petitioner indicated that he will "oversee operations, supervise employees, 
deal [with] vendors,'' and noted that the company currently has three employees. 
The petitioner submitted a copy of a "Business Contract of Sale," indicating the petitioner's agreement to purchase 
a Sunoco gas station and convenience store located in Treverton, Pennsylvania at a purchase price of $245,000. 
The petitioner did not submit any additional information regarding the beneficiary's proposed duties, the 
proposed nature of the office, the scope of the entity, its organizational structure, and its financial goals, or the 
size of the United States investment. See generally, 8 C.F.R. $5 214.2(1)(3)(ii) and (v)(C). 
On October 10, 2008, the director issued a request for additional evidence in which it referenced the 
regulations for new office petitions at 8 C.F.R. 214.2(1)(3)(~). The director requested an original letter from 
the foreign company which indicates the proposed number of employees for the U.S. office and the types of 
positions they will hold; the amount of the U.S. investment; and the financial ability of the foreign company 
to pay the beneficiary and commence doing business. The director further requested that the foreign entity 
explain how the proposed business will support a managerial or executive capacity position within one year. 
In addition, the director instructed the petitioner to submit a more detailed description of the beneficiary's 
proposed duties and the percentage of time he will spend on specific duties, as well as a proposed 
organizational chart for the U.S. company, and job duties, proposed salaries and educational requirements for 
each proposed position. 
In response, the petitioner submitted a letter from the foreign entity's director, dated November 3, 
2008. = recited the statutory definitions for managerial and executive capacity, and indicated that the 
beneficiary would perform these duties while the "staff under the manager's supervision carries out the business." 
letter included an organizational chart identifying a cashier, an account clerk, a clerk and an assistant 
manager who would report to the manager. stated that all employees work full-time. 
indicated that the foreign entity has invested a total of $41,550.14 in the United States entity, and 
referred to an annexed "wire transfer and a copy of detail information statement." However, the only supporting 
documents submitted with the RFE response were a membership certificate, membership certificate register, and 
the petitioner's lease agreement. 
The director denied the petition on December 3 1, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity within one year of approval of the 
petition. In denying the petition, the director found that the petitioner's explanation of its proposed business was 
WAC 09 005 50548 
Page 6 
vague and general, and that the petitioner failed to concretely describe its intended organizational structure. The 
director further found the evidence insufficient to establish that the petitioner would have the financial means to 
support a managerial or executive position within one year, noting that there was no evidence of a commitment 
from the claimed parent company as to when or if it intended to provide additional funding. 
On appeal, counsel asserts that the director denied the petition based on the petitioner's failure to submit required 
evidence that was not requested in the director's RFE. Specifically, counsel asserts that the director's request for 
evidence did not adequately address the missing initial evidence required by the regulations governing "new 
ofice" petitions. Counsel contends that the director should not have denied the petition without first requesting all 
of the evidence that must be considered when adjudicating a petition for a new office. Finally, counsel asserts 
that, due to the missing evidence, the director's decision was "largely based on conjecture and speculation." 
Counsel asserts that the petitioner's initial evidence, considered with the new evidence submitted on appeal, are 
sufficient to establish eligibility for the benefit sought. 
Upon review, counsel's assertions are unpersuasive. The petitioner has not established that the beneficiary would 
be employed in a primarily managerial or executive capacity under the extended petition. 
As a threshold issue, the AAO will address counsel's claim that the director's RFE failed to address all 
required evidence needed to determine the petitioner's eligibility for approval of a "new office" petition 
pursuant to 8 C.F.R. 5 214.2(1)(3)(~). 
Title 8 C.F.R. 5 103.2(b)(8)(ii), the revision of which went into effect on June 18, 2007, states as follows: 
If all required initial evidence is not submitted with the application or petition or does not 
demonstrate eligibility, [U.S. Citizenship and Immigration Services (USCIS)] in its discretion 
may deny the application or petition for lack of initial evidence or for ineligibility or request 
that the missing initial evidence be submitted within a specified period of time as determined 
by [USCIS]. 
Id.; see also 72 F.R. 19100 (April 17, 2007). As the instant petition was filed in 2008, the director was not 
obligated to request additional evidence if the petition fails to demonstrate eligibility for the benefit 
sought. Here, the petition was submitted with very little of the required initial evidence for a new office 
petition, and the director could have exercised her discretion to deny the petition without issuing the RFE. 
Nevertheless, the director issued a request for evidence advising that the requirements for a new office 
petition were not met, and referred the petitioner to the regulatory requirements for the requested 
classification. The RFE provided the petitioner with ample notice of the deficiencies in its petition, and 
contrary to counsel's assertions on appeal, the petitioner's response to the director's request did not adequately 
address all of those deficiencies. 
Therefore, the AAO concurs with the director that the petitioner did not establish through its initial evidence 
and through its response to the RFE that the beneficiary would be employed in the United States in a 
primarily managerial or executive capacity. An adverse determination made based on the petitioner's failure 
to submit required evidence is not based on "conjecture and speculation" on the part of the director, but rather 
WAC 09 005 50548 
Page 7 
on the petitioner's failure to meet its burden of proof. Accordingly, the denial was appropriate, even though 
the petitioner may believe that it has evidence or argument to rebut the director's finding. 
Finally, even if the AAO were to find that the director should have requested additional evidence not 
specifically requested in the WE, the director's error would be harmless. If the petitioner has rebuttal 
evidence, the administrative review process provides for a motion to reopen, motion to reconsider, or an 
appeal as a forum for that new evidence. The petitioner has submitted additional evidence on appeal which 
will be discussed further below and which the AAO has taken into account before reaching its determination. 
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. Beyond the required 
description of the job duties, USCIS reviews the totality of the record when examining the claimed 
managerial or executive capacity of a beneficiary, including the petitioner's proposed organizational structure, 
the duties of the beneficiary's proposed subordinate employees, the petitioner's timeline for hiring additional 
staff, the presence of other employees to relieve the beneficiary from performing operational duties at the end 
of the first year of operations, the nature of the petitioner's business, and any other factors that will contribute 
to a complete understanding of a beneficiary's actual duties and role in a business. As discussed above, the 
petitioner's evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly 
expand as it moves away from the developmental stage to full operations, where there would be an actual 
need for a manager or executive who will primarily perform qualifying duties. See generally, 8 C.F.R. 
5 2 14.2(1)(3)(v). 
Here, the evidence of record does not include a detailed description of the beneficiary's duties sufficient to 
establish that his proposed employment involves executive or managerial authority over the new operation, or 
that his duties will be primarily managerial or executive in nature. At the time of filing the petitioner indicated 
that the beneficiary "will manage a Sunoco gas station and convenience store," which will involve overseeing 
operations, supervising employees and dealing with vendors. Accordingly, the director requested a 
comprehensive description of the beneficiary's proposed duties, advising the petitioner that it should be 
specific and indicate the percentage of time the beneficiary would spend in each of the listed duties. In 
response to this specific request, recited the statutory definitions directly from section 10 1(a)(44) of 
the Act and stated that the beneficiary will perform the duties described therein, and supervise four employees 
who will carry out the business. A recitation of the statutory definitions of managerial and executive capacity 
is not a "comprehensive description" of the beneficiary's proposed position in the United States. Conclusory 
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language 
of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afyd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute 
the majority of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial 
administrative or operational duties. Although specifically requested by the director, the petitioner has neither 
WAC 09 005 50548 
Page 8 
described the beneficiary's actual proposed duties in any detail nor established what proportion of the 
beneficiary's duties will be managerial in nature, and what proportion will be non-managerial. See Republic of 
Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Any failure to submit requested evidence that precludes 
a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(l4). 
Although the petitioner has submitted a substantial amount of documentary evidence in support of the appeal, 
the record remains devoid of a description of the proposed duties beyond the brief statement made on the 
Form 1-129. The petitioner indicates that the beneficiary will oversee the operations of a gas station and 
convenience store, supervise its employees and deal with vendors, but fails to explain how these duties rise to 
the level of managerial or executive capacity as contemplated by the statutory definitions. Furthermore, the 
AAO notes that the petitioner's "dealer supply franchise agreement" with Sunoco, which is submitted for the 
first time on appeal, includes the following provision at section 1.06: 
This agreement is made on the condition, and with the understanding that the Premises will 
be under the direct, daily on-Premises supervision of andlo-1 
who will personally manage and oversee daily operation of Premises at least 8 hours per day 
and 40 per week. 
signed the Form 1- 129 as the petitioner's "managing member," but neithe nor 
is listed on the petitioner's organizational chart. This provision raises questions regarding the 
beneficiary's actual level of authority and discretion over the day-to-day operations of the petitioner's store. 
Overall, the petitioner's failure to describe the beneficiary's duties and level of authority is sufficient grounds 
for denial of the petition. 
In addition, the petitioner has not adequately described or documented the intended scope of the U.S. office, 
its financial goals, and its anticipated organizational structure after one year. 
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. 4 1 101(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. 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 
lOl(a)(44)(A)(iv) of the Act; 8 C.F.R. 5 214.2(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. 4 214.2(1)(1)(ii)(B)(3). 
Here, the petitioner indicates that the beneficiary will be supervising a cashier, a clerk, an account clerk, and 
an assistant manager. According to the organizational chart, all four employees would report directly to the 
beneficiary. Although requested by the director, the petitioner opted not to provide position descriptions or 
educational requirements for the beneficiary's proposed subordinates. Again, any 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). Thus, the petitioner has not established that these employees possess or require a bachelor's 
WAC 09 005 50548 
Page 9 
degree, such that they could be classified as professionals.' Nor has the petitioner shown that any of these 
employees supervise subordinate staff members or manage a clearly defined department or function of the 
petitioner, such that they could be classified as managers or supervisors. 
Although the petitioner indicates that one of the beneficiary's proposed subordinates is an "assistant manager," 
the 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. In the present matter, the totality of the record does not support a conclusion 
that the beneficiary's proposed subordinates are supervisors, managers, or professionals. Instead, the record 
indicates that the beneficiary's subordinates would perform the actual day-to-day tasks of operating the gas 
station and convenience store. The petitioner has not submitted evidence of an organizational structure 
sufficient to elevate the beneficiary to a supervisory position that is higher than a first-line supervisor of non- 
professional employees. 
Furthermore, it is not clear how the petitioner's current staff of four employees would relieve the beneficiary 
from performing the non-qualifying duties inherent in operating the business. A company's size alone, 
without taking into account the reasonable needs of the organization, may not be the determining factor in 
denying a visa to a multinational manager or executive. See 5 101(a)(44)(C) of the Act, 8 U.S.C. 
5 1 10 1 (a)(44)(C). However, in reviewing the relevance of the number of employees a petitioner has, federal 
courts have generally agreed that USCIS "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 13 13, 13 16 (9'h 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 USCIS 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). 
' 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 10 1 (a)(32) of the Act, 8 U.S.C. 5 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 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.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by a subordinate employee. 
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Page 10 
According to the evidence submitted, the petitioner is required to keep its business open for 18 hours daily, or 
126 hours per week. Although the petitioner claims that all of the employees work full-time, the petitioner 
has submitted recent payroll register reports on appeal which indicate that, between December 29, 2008 and 
January 11,2009, only the assistant manager worked full-time (80 hours over two weeks). The clerk, account 
clerk and cashier each worked only 37 to 44 hours over the two-week period. The petitioner has not 
established that its reasonable needs would be met by one full-time and three part-time employees. Rather, it 
appears that the beneficiary would be required to participate in the day-to-day operations in order to keep the 
business operating during the extensive operating hours mandated by the petitioner's agreement with Sunoco. 
An employee who "primarily" 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 Intn'l., 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner has not 
submitted a business plan or other evidence that would establish that the petitioner intends to increase its 
staffing levels or how it would otherwise grow to support a managerial or executive position within one year. 
See generally, 8 C.F.R. § 2 14.2(1)(3)(v)(C). 
For all of the above reasons, the petitioner has not established that the beneficiary will be employed in a 
primarily managerial or executive capacity within one year, or that the U.S. company could support such a 
position. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the U.S. and foreign entities have a 
qualifying relationship. To establish a "qualifying relationship" under the Act and the regulations, the 
petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same 
employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section lOl(a)(15)(L) of the Act; 8 C.F.R. 5 214.2(1). 
The petitioner stated on Form 1-129 that it is an affiliate of the foreign entity. It also indicated that- 
. of India owns a 5 1 percent interest in the U.S. company, which, if established, would be a 
parent-subsidiary relationship. In the RFE issued on October 10, 2008, the director requested copies of the 
petitioner's stock certificates, stock ledger, and evidence that the foreign entity paid for its interest in the U.S. 
company, including copies of wire transfers andlor canceled checks. In response, the petitioner submitted 
copies of its membership certificates indicating that the beneficiary owns 51 membership units and- 
owns 49 membership units in the U.S. company. The petitioner also submitted two wire transfer receipts 
showing that the beneficiary has made two transfers in the amounts of $13,119 and $10,800 to m 
for "living expenses." stated in his letter that "the parent company has invested $41,550.14 by 
wire transfer," but no evidence of this investment was submitted. 
The record as presently constituted does not support the petitioner's claim that the foreign entity is the 
petitioner's parent company, given that neither of its membership certificates were issued to the foreign entity. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591- 
92 (BIA 1988). Furthermore, the record does not support a determination that the two companies have an 
WAC 09 005 50548 
Page 11 
affiliate relationship as defined at 8 C.F.R. $ 214.2(1)(l)(ii)(J). While it appears that the beneficiary owns a 
majority interest in the U.S. company, the evidence submitted on appeal, which includes the foreign entity's 
memorandum and articles of association, indicates that the beneficiary owns a 20% interest in that company. 
If one individual owns a majority interest in a petitioner and a foreign entity, and controls those companies, 
then the companies will be deemed to be affiliates under the definition even if there are multiple owners. 
Here, however, the beneficiary does not hold the requisite majority interest in the foreign entity. For this 
additional reason, 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). 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). 
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 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.