dismissed L-1A Case: Cotton Trading

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
i&;lti@ing <.?tn d?lztf'd to 
 wash~&ton, DC 20529-2090 
prevent clexly un~d ;rr;anted 
 U. S. Citizenship 
invasion of personal privacy 
 and Immigration 
PUBLIC COPY 
FILE: EAC 08 123 51481 OFFICE: VERMONT SERVICE CENTER Date: APR 2 7 2009 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 10 l(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. 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, as required by 8 C.F.R. tj 103.5(a)(l)(i). 
F. Grissom 
Chief, Administrative Appeals Office 
EAC 08 123 51481 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its vice 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 1 101 (a)(15)(L). The petitioner, a Delaware corporation, states that it is 
operating as a cotton merchant and exporter of raw material. It claims to be a subsidiary of- 
., located in Ahmedabad, India. The beneficiary was initially granted one year in L-1A classification 
in order to open a new office in the United States and the petitioner now seeks to extend the beneficiary's 
status for two additional years.' 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the petitioner asserts that the director placed undue 
emphasis on the petitioner's staffing levels in determining that the beneficiary would not be employed in a 
primarily managerial or executive capacity. Counsel asserts that the petitioner never claimed that the 
beneficiary manages professional staff, but rather claims that he manages "complex company functions." 
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 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 the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. tj 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. 
The AAO notes that the previous petition (EAC 07 090 53 107) was filed by a Florida corporation, = 
, with Federal Employer Identification Number (FEN) 
 The instant petition was 
filed by a Delaware corporation of the same name with FEN-1 
EAC 08 123 51481 
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 himlher 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. tj 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 beeri 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 managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means 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 08 123 51481 
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. 9 1 10 l(a)(44)(B), provides: 
The term "executive capacity" means 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 March 26, 2008. The petitioner 
indicated on Form 1-129 that it has three employees. The petitioner stated that the beneficiary will serve as 
"Vice President of development and operations supervising all aspects of management and development of 
company's growth in the USA, coordinate marketing and trading of raw materials on the international 
market. I' 
The petitioner submitted an organizational chart for the U.S. company which identifies the beneficiary as 
president, and two subordinates. The chart indicates that is responsible for "customer relation 
& marketing" and is responsible for "data entry, banking & custom filing." The petitioner 
stated that the company plans to hire a market surveyor and an international relationship agent. The petitioner 
submitted copies of its IRS Forms W-2 for 2007, which indicate that each subordinate employee earned 
wages of $2,240. 
The director issued a request for additional evidence on May 5, 2008, instructing the petitioner to submit, 
inter alia, the following: (1) a comprehensive description of the beneficiary's duties; (2) a list of the United 
States employees, including job titles and complete job descriptions for each employee, including a 
EAC 08 123 51481 
Page 5 
breakdown of the number of hours devoted to each employees' job duties on a weekly basis; (3) copies of 
educational credentials for each of the beneficiary's subordinates; and (4) copies of the petitioner's IRS Forms 
94 1, Employer's Quarterly Federal Tax Return for all four quarters of 2007 and the first quarter of 2008. 
In response, the petitioner stated that the beneficiary, as vice president, would be responsible for "all 
operation of the Company in USA right from establishment to successful running of the venture." The 
petitioner described the beneficiary's specific duties as follows: 
A. Project implementation 
1. Selection of Warehouse - Finalization of warehouse/plant at appropriate place on 
lease basis and also to take all decision to get it altered and modifies [sic] to match 
the operation of the company. 
2. Sourcing of Equipments - Selection, negotiation and finalization of all equipments 
like Conveyor Belts, Loading and unloading equipments, Transportation vehicles etc. 
required for the venture of the company. 
3. Recruitment of Personnel - He would be responsible and empowered to appoint all 
personnel required for the company in USA like Chief Executive Officer, Works 
Executive Officer, and Skilled Employees etc. He is also empowered to manage his 
team independent and also take all decision about removal, promotion and also to 
handle them in a manner as he think fit. 
4. Arranging Infrastructure Facilities - He would be responsible to set up and 
arrange all infrastructure facilities and tie ups like trucking, shipping, banking, 
forwarding agents and all necessary tie ups with agencies that may be required for the 
execution of the project. 
B. Sourcing of Raw Material 
Exploring and sourcing contacts for procurement of Cotton from various suppliers and 
other parties at competitive price on long term basis. Responsible for entering into and 
execution of all contracts, agreements and commitments for smooth flow of Cotton 
which is a basic raw material of the project. 
C. Financial Issues 
I. To obtain current detailed financial statements, itemized payroll, payables and 
receivables list. 
2. Review budgets of all departments or divisions for reasonableness of assumptions, 
quality of projections and relevancy in light of recent corporate changes and goals. 
3. Evaluate obvious, and not so obvious problems and strengths revealed by the 
financial statements. 
4. Do realistic cash forecast for the next 90 and 180 day periods. 
5. Evaluate asset utilization and re-deploy if appropriate and prudent in the short term. 
EAC 08 123 51481 
Page 6 
1. Ensure all payroll taxes are paid and properly reported. 
2. Determine what, if any problems exist with IRS and state agencies. 
3. Ensure the company is in compliance with all required regulatory and Licensing 
agencies etc. and if not take action to resolve these issues. 
4. Identify all outstanding legal issues and litigation risks along with Probable, and 
possible, associated costs. 
E. Marketing 
Analyze product delivery schedules and take steps to improve meeting Commitments 
dates. 
Evaluate sales, marketing, distribution, forecast and trend lines for improvement 
opportunities in all areas, so as to generate more cash in the short-term. 
Identify both the best customers and the most unhappy customers as well as the 
company's image in the marketplace. 
Complete competitive analysis for each product line. 
Evaluate pricing models for each product line and adjust accordingly. 
Identify product line strengths and weakness and develop short-term action plan to 
solve the most glaring problems. 
Identify potential products - 6,12, and 24 months into the future - and their possible 
impact on revenue and expenses. 
Evaluate and optimize short-term inventory. 
F. General 1 Administrative 
1. Evaluate and control travel, entertaining and all discretionary expenditures and 
implement new written policies for these issues. 
2. Review facilities and real estate issues, including a review of current lease 
requirements. 
3. Review all equipment leases for cost cutting 1 improved technology opportunities. 
4. Createlupdate business plan for current internal clarity and banking or capital 
formation needs. 
5. "Manage by roaming around" - gaining insights into attitudes and problem areas 
within all levels of the organization. 
6. Evaluate in-place systems and procedures and streamline where appropriate. 
7. Evaluate technology implementation and optimize within budget constraints. 
8. Visit all branch offices and evaluate their needs, performance, personnel, and cost- 
effectiveness. 
The petitioner stated that 
 is employed as its "marketing manager of business development," 
on a full-time basis and performs the following duties: 
EAC 08 123 51481 
Page 7 
Involved with Directors of the Company for strategic planning and formulation of 
management decision for growth in diversified areas. (8 hourslweek) 
Marketing of export of products and services. Develop new business associates as 
indicated by Vice President. (1 7 hourslweek) 
Quality Assurance (1 0 hourslweek) 
Interact and finalize foreignldomestic collaboration of the company (5 hourslweek) 
The petitioner stated that is the "data entry, banking & custom filing" employee and performs 
the following duties on a full-time basis: 
Follow up with documentation with staff up to loading containers (10 hourslweek) 
Quality Assurance (1 0 hourslweek) 
Liaison with customers and banking authority (20 hourslweek) 
The petitioner submitted copies of the requested federal quarterly tax returns and state quarterly wage reports 
for 2007 and the first quarter of 2008. For the quarter ended on March 3 1, 2008, which includes the date the 
petition was filed, the petitioner paid $858 to 
 and $2,574 to 
 According to 
the Delaware quarterly wage report, each employee worked during all 13 weeks in the quarter. The record 
also includes pay statements for both employees, which indicate that and both earn an 
hourly wage of $7.15. Therefore, it appears that I worked a total of 120 hours over 13 weeks, 
while worked 360 hours during this period. 
The director denied the petition on August 7, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
In denying the petition, the director noted that the petitioner's description of the beneficiary's duties outlined 
"general managerial functions," but did not specify what specific managerial or executive duties the 
beneficiary performs within the context of the petitioner's business and current staffing arrangement. The 
director observed that the beneficiary's subordinates appear to work on a part-time basis and had not been 
demonstrated to be managerial, supervisory or professional employees. 
The director acknowledged the petitioner's earning of $350,220 in gross sales during 2007 and determined 
that it is "implausible that the part-time subordinate staff were responsible for all its sales." The director noted 
that the petitioner did not demonstrate that it employs full-time salespersons or other employees to provide the 
sales and services of the company. The director therefore concluded that it seems likely that the beneficiary 
will perform or help to perform non-qualifying duties associated with the company's day-to-day operations, 
rather than performing primarily managerial or executive duties. 
Finally, the director determined that the beneficiary's "actual salary does not appear to be commensurate with 
a bona fide manager or executive position in a major metropolitan business market." The director's comments 
regarding the beneficiary's salary will be withdrawn. The director's determination that the beneficiary's salary 
is not commensurate with an executive or managerial position is not supported by the the statute or 
regulations, which neither require, nor permit, a beneficiary's salary to be considered as a factor in 
determining the beneficiary's employment capacity. 
EAC 08 123 51481 
Page 8 
On appeal, counsel for the petitioner asserts that the director placed undue emphasis on the staffing of the 
U.S. company and failed to consider whether the beneficiary would be managing a function. Counsel 
contends that the beneficiary need not supervise professionals in order to be classified as a manager, and 
stresses that "an individual should not be considered to be acting in a managerial or executive capacity merely 
on the basis of the number of employees that the individual supervises." Counsel claims that the director 
made contradictory statements, simultaneously acknowledging that the beneficiary's duties are "general 
managerial functions" while finding that the duties outlined "do not specify exactly what the beneficiary will 
be doing." Counsel argues that "the government has based its entire argument, forcing the beneficiary under a 
part of the statute, which the petitioner never applied for. At no time did the company apply for an extension 
of a L-1A based on managing professional staff. It has always been about managing complex company 
functions." 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary 
would be employed in a primarily managerial or executive capacity under the extended petition. 
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 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 show that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). While the AAO does not doubt that the beneficiary 
exercises discretion over the petitioner's business as its vice president and apparently only full-time 
employee, the totality of the evidence submitted does not demonstrate that the beneficiary's actual duties will 
be primarily managerial or executive in nature. 
As noted by the director, the position description submitted, while lengthy, was overly general and failed to 
identify the specific duties the beneficiary would perform on a day-to-day basis that would qualify as 
managerial or executive in nature. The petitioner indicated that the beneficiary will "evaluate" and "analyze" 
various aspects of the business such as financial problems, asset utilization, tax and legal issues, facilities and 
real estate issues, inventory issues, product delivery schedules, pricing models, distribution, sales and 
marketing, technology implementation, equipment issues, systems and procedures, etc. While these broad 
responsibilities suggest that the beneficiary has general oversight authority over the business, such statements 
provide little insight into what the beneficiary does during a typical workweek. 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). 
Other duties included in the description, particular those related to "project implementation," appear to be 
inconsistent with the type of business the petitioner operates. The petitioner indicates that the beneficiary will 
be responsible for finalizing the leasing and modification of a warehouselplant, sourcing equipment such as 
' EAC0812351481 
Page 9 
conveyor belts and loadingtunloading equipment, and hiring additional personnel such as a chief executive 
officer and a "works executive officer." The petitioner currently buys and sells scrap metal and corrugated 
boxes to export markets, has no warehouse, and has no apparent need for a plant, conveyor equipment or a 
works officer. The claim that the beneficiary, in his capacity as vice president, will hire a chief executive 
officer, is not persuasive. According to the petitioner's organizational chart, the future employees 
contemplated are a market surveyor and an international relationship agent. The petitioner's statements that 
the beneficiary will "review budgets of all departments or divisions," and "visit all branch offices" are also 
unpersuasive in light of the fact that the petitioner's three-person office is not divided into departments or 
divisions and has no known branch offices. 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). 
Finally, the AAO notes that the beneficiary's job description indicates that he is personally responsible for 
sourcing raw material fiom suppliers, and does not delegate this non-managerial task to a subordinate 
employee. In addition, the petitioner indicates that the beneficiary is responsible for other operational tasks 
associated with sales and product delivery. The record contains a purchase order identifying the beneficiary 
as "sales person," as well as correspondence between the beneficiary and a prospective buyer of scrap plastic 
materials. The beneficiary himself appears to be responsible for promoting and selling the petitioner's 
products to potential buyers in export markets. The record shows that the petitioner does not have a business 
telephone number other than the beneficiary's mobile phone and he appears to be the main customer contact 
for all business purposes. 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 IOl(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 'I., 19 I&N Dec. 593, 604 (Comm. 1988). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Although specifically requested by the director, the petitioner's description of the beneficiary's 
job duties does not establish what proportion of the beneficiary's duties is managerial in nature, and what 
proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
The petitioner lists the beneficiary's duties as including both managerial and administrative or operational 
tasks, but fails to quantify the time the beneficiary spends on them. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. €j 103.2(b)(14). This 
failure of documentation is important because several of the beneficiary's responsibilities, such as sourcing 
raw materials and marketing the petitioner's products to potential buyers, do not fall directly under traditional 
managerial duties as defined in the statute. For this reason, the AAO cannot conclude that the beneficiary is 
primarily performing the duties of a function manager, as claimed by the petitioner. See IKEA US, Inc. v. 
US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
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. 5 1 10 1 (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 
EAC 08 123 51481 
Page 10 
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 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. (j 2 14.2(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. (j 214.2(1)(l)(ii)(B)(3). The director determined that the 
beneficiary will not be supervising a staff of supervisory, professional or managerial employees. On appeal, 
counsel emphasizes that the petitioner never claimed that the beneficiary will supervise professionals and 
instead seeks to classify the beneficiary as a manager based on his management of "complex company 
functions." 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. § 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 in managing the essential function, 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. See 8 C.F.R. (j 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. In this matter, the petitioner has 
not provided evidence that the beneficiary manages an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial, and in fact the record 
shows that the beneficiary personally performs sales and procurement tasks. 
As noted above, absent a clear and credible breakdown of the time spent by the beneficiary performing his 
duties, the AAO cannot determine what proportion of his duties will be managerial, nor can it deduce whether 
the beneficiary will primarily perform the duties of a function manager. See ZKEA US, Inc. v. US. Dept. Of 
Justice, 48 F. Supp. 2d at 24. Counsel's unsupported assertion that the beneficiary manages "complex 
company functions" is insufficient to establish the beneficiary's eligibility for this classification as a function 
manager. The unsupported statements of counsel on appeal or in a motion are not evidence and thus are not 
entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Moreover, the petitioner's description of the beneficiary's duties cannot be considered in the abstract. 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 organizational structure, 
the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, 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. 
Counsel correctly observes that 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 lOl(a)(44)(C) of the Act, 8 U.S.C. (j 1 101(a)(44)(C). In the present matter, however, the regulations 
provide strict evidentiary requirements for the extension of a "new office" petition and require USCIS to 
examine the organizational structure and staffing levels of the petitioner. See 8 C.F.R. (j 214.2(1)(14)(ii)(D). 
EAC 08 123 51481 
Page 11 
The regulation at 8 C.F.R. 9 214.2(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. 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. 
Furthermore, 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 (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 
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). 
The petitioner is a one-year-old company engaged in purchasing, selling and exporting scrap metal and 
cardboard. It employs the beneficiary as its president, a "marketing manager," and an employee who is 
responsible for data entry, banking and custom filing. Although the petitioner claims that both of the 
beneficiary's subordinates are employed on a full-time basis, the petitioner's quarterly tax returns show that 
the marketing employee was working, on average, less than 10 hours per week during the first quarter of 
2008, while the other employee worked less than 30 hours per week. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Clearly, the 
marketing employee does not spend 17 hours per week marketing the export of products, as claimed by the 
petitioner. Rather, the record shows that the company's primary functions of sourcing, buying, marketing and 
selling raw materials are performed by the beneficiary. It is reasonable to conclude, and has not been shown 
otherwise, that these duties would require the majority of the beneficiary's time in order for the business to 
remain viable. 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1101(a)(44). The reasonable needs of the petitioner may justify 
a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 90 percent, 
but those needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying 
duties. A review of the totality of the record fails to establish that the petitioner has a reasonable need for the 
beneficiary to perform primarily managerial or executive duties at its current stage of development. 
Even though the enterprise is in a preliminary stage of organizational development and anticipates additional 
growth, the petitioner is not relieved from meeting the statutory requirements. A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant matter, the petitioner has not reached the point 
EAC 08 123 51481 
Page 12 
that it can employ the beneficiary in a predominantly managerial or executive position. For this reason, the 
appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the United States and foreign 
entities are still qualifying organizations, as required by 8 C.F.R. 5 214.2(1)(14)(ii). To establish the requisite 
"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 101(a)(15)(L) of the 
Act; 8 C.F.R. 9 214.2(1). 
The regulation and case law confirm.that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
The petitioner stated' on Form 1-129 that it is a subsidiary of the foreign entity, - 
Where asked to describe the stock ownership and managerial control of each company, the petitioner stated: 
The petitioner submitted a stockholder list and minutes of its organizational meeting indicating that the 
company has the following ownership: 
1,200 shares 
600 shares 
600 shares 
600 shares 
The ~etitioner also submitted co~ies of its stock certificates numbers one. two and three. which were issued 
on May 23, 2007. According td the stock certificates 
 owns 1,200 shares, 
 owns 
600 shares, and - owns 600 shares. The petitioner did not submit a copy of its stock transfer ledger. 
However, the stock certificates clearly undermine the petitioner's claim that the U.S. company is a subsidiary 
of the foreign entity. 
The petitioner also submitted a copy of its Form 1120, U.S. Corporation Income Tax Return for 2007, which 
indicates at Schedule K that the company is 100% owned by one foreign entity or individual. The information 
on the petitioner's tax return directly contradicts the petitioner's stock certificates and corporate 
documentation. 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 
EAC 08 123 51481 
Page 13 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). 
The record contains inconsistent evidence regarding the ownership and control of the U.S. company and no 
evidence regarding the ownership and control of the foreign entity. 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. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Therefore, the petitioner has not established that it has a qualifying 
relationship with the beneficiary's foreign employer. 
Moreover, as noted above, the petitioner in the instant matter, a Delaware corporation, is not the same entity 
that filed the initial petition on behalf of the beneficiary. The initial new office petition was filed in February 
2007 by a Florida corporation incorporated in 2006. The instant petitioner was incorporated in May 2007, 
more than one month after the beneficiary's arrival in the United States in L-IA status. The petitioner 
neglected to mention the change in employers and provides no information regarding the status of the Florida 
company or the relationship between that company and the Delaware company. Accordingly, the petitioner 
has also failed to establish that it has been doing business in the United States for the previous year as 
required by 8 C.F.R. 5 214.2(1)(14)(ii)(C). 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. 200 l), affd. 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 he or she shows 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. tj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.