dismissed L-1A Case: Counseling And Therapy Services

u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington,.DC 20529
U.S. Citizenship
and Im:rI1igration
Services
File: SRC 05 80023337 Office: TEXAS SERVICE CENTER Date: . "AY () 4 2'007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant. to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
• ~~q Robert P. Wiemann, Chief
I Administrative Appeals Office
SRC 05 80023337
Page 2
DISCUSSION: The Director, Texas 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 employ the beneficiary in the position of president
and general manager as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of
the Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(15)(L). The petitioner, a Florida
corporation, states that it is engaged in counseling and therapy services. The petitioner claims to be a
subsidiary of the parent company, , located in the United Kingdom. The
petitioner seeks to employ the beneficiary for a period of one year to open a new office in the United States.
The director denied the petition, concluding that the record contains insufficient evidence to demonstrate:
(1) that sufficient funding or capitalization was provided to the U.S. entity from the foreign entity; (2) that
sufficient physical premises to house the new office have been secured; (3) that the beneficiary was
employed by the foreign company in a primarily executive or managerial capacity; and, (4) that the
intended United States operation, within one year of the approval of the petition, will support an executive or
managerial position.
On appeal, the petitioner asserts that "we are appealing your decision based on the fact that all evidence of
your requirements were provided." The petitioner explains that the funding was transferred from the
foreign company to the beneficiary's personal account and was not deposited to a business account
because a business account cannot be opened without a social security number. In addition, the petitioner
indicated that the size of the leased premises was submitted with the original petition. Finally, the
petitioner asserts that the petition should not be denied on the ground that after one year the new office
will not support an executive managerial position because "this type of Visa is for a minimum period of
one year. After the one year initial start-up, the parent company will decide whether or not to renew."
The petitioner submits a brief and copies of previously submitted documents in support of the appeal.
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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. § 214.2(1)(3) further 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 (1)(1)(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.
SRC 05 800 23337
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(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 ~mployment 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.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary
is coming to the United States as a manager or executive to open or to 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 involved 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)(1)(ii)(B) or (C)
of this section, supported by information regarding:
(1) 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 fmancial ability of the foreign
entity to remunerate the beneficiary and to commence doing business in the United
States; and
(3) The organizational structure of the foreign entity.
The first issue in this proceeding is whether a sufficient financial investment was provided to the U.S. entity
from the foreign entity.
As noted by the director, the petitioner submitted a bank statement in the name of the beneficiary rather than
the U.S. entity. The bank statements were for the period between December 24, 2004 through April 21,
2005. The bank statements indicate the balance of the account for each month, however, the statements do
not specify the specific account transactions made on each month. Thus, it is impossible to determine from
where the funds originated. The petitioner did not submit any evidence documenting that the deposits made
into thebeneficiary's personal bank account originated from the foreign company. Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
SRC 05 80023337
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proceedings. Matter of Sofjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972».
The director denied the petition and asserted that the petitioner failed to provide sufficient evidence that the
funding or capitalization of the United States company has been provided by the foreign company since the
bank statements were deposited to an individual's personal bank account.
On appeal, the petitioner explains that the bank statements are under, the beneficiary's name because
"pursuant to Florida banking laws, an immigrant with no status is not able to open a corporate bank account
without a social security card .... Because of this, all monies were transferred to [the beneficiary's] personal
account for start-up costs of the new company and living expenses until the United States company is open."
Upon review, the documentation submitted by the petitioner is insufficient to establish that funding to the
U.S. entity was provided by the foreign company. The bank statements under the beneficiary's name do not
indicate any deposits from the foreign company. The petitioner fails to submit documentation of funding
from the foreign company such as evidence of wire transfers from the foreign company into the U.S. entity's
company bank account, cancelled checks, or deposit receipts. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Sofjici, 22 I&N Dec. at 165. Based on the insufficiency of the information furnished, it cannot
be concluded that the petitioner has secured a sufficient financial investment from the foreign company.
Furthermore, the petitioner has not submitted a business plan or other documentation to establish the U.S.
company's anticipated start-up expenses and it is therefore not possible to determine what investment
amount would be sufficient. Therefore, even assuming, ; ,that the balance on the submitted bank
statement was intended to be used as capitalization for the new U.S. company, the AAO could not
conclude that this amount is adequate for the U.S. company to commence doing business in the United
States. The petitioner has not disclosed the size of the U.S. investment, as required by 8 C.F.R. §
214.2(l)(3)(v)(C)(2). For the foregoing reasons, the appeal will be dismissed.
The second issue in this proceeding is whether the petitioner has secured sufficient physical premises to
house the new office in the United States as required by the regulations at 8 C.F.R. § 214.2(l)(3)(v)(A).
At the time of filing the original petition, the petitioner submitted a lease agreement signed on March 30,
2005 indicating that the lease agreement will commence on March 30, 3005. However, on appeal, the
petitioner submitted a different lease agreement which was signed in April 2005 which indicated that the
lease will commence on April 30, 2005. The petitioner does not explain why the U.S. entity signed two
different lease agreements. 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
ofRo, 19 I&N Dec. 582, 591-92 (BIA 1988). 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 ofRo, 19 I&N Dec. 582, 591 (BIA 1988).
On May 10, 2005, the director requested that the petitioner submit photographs of the leased space and
documentary evidence of the size of the leased space. In its response, the petitioner submitted the requested
SRC 0580023337
Page 5
photographs of the leased space but did not submit documentation establishing the size of the leased property.
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying
the petition. 8 C.F.R. § 103.2(b)(14). On appeal, the petitioner indicates that it did indeed provide
documentation of the size of the leased premises upon the director's request. In addition, the petitioner
submits a letter from IDS Property Management, Inc. indicating that the leased space is 1535 square feet.
In reviewing the record, the petitioner did not previously submit this letter or any documentation to
evidence the size of the leased space as requested by the director. The petitioner was put on notice of
required evidence and given a reasonable opportunity to provide it for the record before the visa petition
was adjudicated. The petitioner failed to submit the requested evidence and now submits it on appeal.
However, the AAO will not consider this evidence for any purpose. See Matter ofSoriano, 19 I&N Dec.
764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated
based on the record of proceeding before the director.
Moreover, the petitioner has not described its anticipated space requirements for the new business, and
the lease in question does not specify the amount of type of space secured. Based on the insufficiency of
the information furnished, and the unexplained existence of two lease agreements for the same premi~s,
it cannot be concluded that the petitioner had secured sufficient space to house the new office as of the
date of filing. For this additional reason, the appeal is dismissed.
The third issue to be addressed is whether the beneficiary has been employed in a primarily managerial or
executive capacity for the foreign entity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(15)(L), provides:
The term "managerial capacity" means an assignment within an organization III 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;
111. 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 V.S.c. § 1101(a)(44)(B), provides:
SRC 05 80023337
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The term "executive capacity" means an assignment within an organization m which the
employee primarily-
1. directs the management of the organization or a major component or function of
the organization;
11. establishes the goals and policies of the organization, component, or function;
111. 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 nonimmigrant petition was filed on April 12, 2005. In a support letter, the petitioner indicated that the
. beneficiary was employed by the foreign company in the position of Director and General Manager from
November 30, 2000 until April 2005. The petitioner described the duties performed by the beneficiary in this
position as the following:
Her duties included but were not limited to managing daily store operations, including
customer service, administrative duties, inside and outside staff, inventory, shipping and
receiving, and bookkeeping. Directed and monitored financial, marketing and all related
managerial activities. Oversaw all the employees, including supervision, training and
scheduling. Creating a synergistic work environment maximizing productivity of personnel.
The petitioner also submitted a "Labor Certification" from the foreign entity with the 1-129petition indicating
that the beneficiary has been-employedwith the foreign company from October 2000 until April 2005 in the
position of Director and General Manager. The foreign entity described the duties performed by the
beneficiary in this position as the following:
• Managed and monitored daily store operations, including customer service, staff,
inventory, shipping and receiving, and recordkeeping
• Managed and monitored financial, marketing and all related managerial activities
• Oversaw all the employees, including supervision, training and scheduling
• Created a synergistic work environment maximizing productivity of personnel
On May 10, 2005, the director issued a notice requesting additional information of the beneficiary's
employment abroad with the parent company. Specifically, the director requested a letter from the
foreign company stating the job duties of the four employees working under the beneficiary's supervision,
and the work schedule for each employee, including the beneficiary.
In the response, the petitioner reiterated the job duties.previously indicated in the supporting documentation
and submitted the job duties of the beneficiary's subordinates. The petitioner stated that the beneficiary
supervised four employees. One employee is the assistant manager and her duties include "assist the daily ,
store operation and supervise all the employees." The second employee is in administration and is
SRC 05 800 23337
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responsible for "payroll and business accounting." The third employee is "responsible for keeping and
monitoring retail stock, purchase, ordering and ensuring business had ample stock for daily operations." The
fourth employee is responsible for "daily retail/customer operations, cash register, sales, incoming sales
calls." In addition, the petitioner states "that there was no specific time spent on each duty because in retail
environment the tasks must be divided to ensure customer satisfaction, however 100% of the tasks were
completed on a daily basis."
The petitioner did not submit the work schedules of the employees as requested by the director. Failure to
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the
petition. 8 C.F.R. § 103.2(b)(l4). The petitioner filed the work schedules on appeal. The petitioner was
put on notice of required evidence and given a reasonable opportunity to provide it for the record before
the visa petition was adjudicated. The petitioner failed to submit the requested evidence and now submits
it on appeal. However, the AAO will not consider this evidence for any purpose. See Matter ofSoriano,
19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be
adjudicated based on the record of proceeding before the director.
The director denied the petition and stated that the petitioner has not established that the beneficiary was
employed in a managerial or executive capacity with the foreign company. The director also noted that
"without knowing the hours worked by each employee, the Service cannot determine if the beneficiary's
employees had adequate time to perform the day-to-day tasks of the foreign company."
On appeal, the petitioner asserts that the requested documentation was submitted and is sufficient to establish
that the beneficiary held a managerial or executive capacity position with the foreign company.
On review, the petitioner's assertions are not persuasive. 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(l)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to
be performed and indicate whether such duties are in a managerial or executive capacity. Id.
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that .
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 I:..2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
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), afj'd, 905 F.2d 41 (2d.
Cir. 1990).
The petitioner provided a vague and nonspecific description of the beneficiary's duties that fails to
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states vague
duties such as the beneficiary was responsible for "managing daily store operations, including customer
service, administrative duties, inside and outside staff, inventory, shipping and receiving, and bookkeeping,"
and the beneficiary was responsible for "creating a synergistic work environment maximizing productivity of
SRC 05 800 23337
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personneL" The petitioner did not describe the "administrative duties" performed by the beneficiary, nor did
it clarify who performed the customer service, shipping and receiving, and bookkeeping duties claimed to be
supervised by 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 provide any detail or explanation of the beneficiary's
activities in the course of her daily routine. The actual duties themselves will reveal the true nature of the
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The petitioner's descriptions of the
beneficiary's position do not identify the actual duties to be performed, such that they could be classified
as managerial or executive in nature.
The job description also includes several non-qualifying duties such as the beneficiary "managed and
monitored financial, marketing and all related managerial activities." It appears that the beneficiary will be
providing the services of the business rather then directing such activities through subordinate employees.
An employee who "primarily" performs the tasks necessary to produce a product or provide a service 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 International, 19 I & N Dec. 593,604 (Comm.
1988).
In the instant matter, the petitioner did not submit a detailedjob description of the duties performed by the
beneficiary at the foreign company and thus AAO cannot determine if the beneficiary was employed by
the foreign entity in a managerial or executive capacity. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. at 165.
Finally, the AAO recently reviewed the nonimmigrant petition submitted by the petitioner on behalf of its
assistant general manager (SRC 05 80023683) and it appears that the beneficiary and the foreign entity's
. assistant general manager perform essentially identical responsibilities, but has not explained the need for
two employees to share the claimed managerial/executive responsibilities in an organization that employs
a total of five people and operates a single retail store. 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 ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
Based upon the lack of a comprehensive job description, the lack of evidence of the company's staffing
levels, and the minimal evidence submitted regarding the business activities of the foreign entity, it
cannot be concluded that the beneficiary has been employed by the foreign entity in a managerial of
executive capacity.
.In addition, although the beneficiary is not required to supervise personnel, if it is claimed that her duties
involve supervising employees, the petitioner must establish that the subordinate employees are
supervisory, professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. The petitioner claims that
the beneficiary supervises one assistant manager, one employee in administration, one employee in
wholesale/stock and one employee in retail. In evaluating whether the beneficiary manages professional
employees, the AAO must evaluate whether the subordinate positions require a baccalaureate degree as a
minimum for entry into the field of endeavor. Section 101(a)(32) of the Act, 8 V.S.c. § 110I(a)(32),
SRC 05 80023337
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states that "[t]he 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
ofSea, 19 I&N Dec. 817 (Comm. 1988); Matter ofLing, 13 I&N Dec. 35 (R.C. 1968); Matter ofShin, 11
I&N Dec. 686 (D.D. 1966).
Therefore, the AAQ must focus on the level of education required by the position, rather than the degree
held by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term
is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary to perform the payroll, inventory and cash register functions of the subordinates
supervised by the beneficiary.
Furthermore, in its response to the director's request for evidence, the petItIOner asserts that the
beneficiary is responsible for "planning, organizing, directing and controlling the company's major
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. § 214.2(l)(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 ina
managerial or executive capacity. Boyang, Ltd. v.INS., 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. The
petitioner's unsupported assertion that the beneficiary manages all the essential functions of the
corporation is insufficient tomeet the petitioner's burden of proof. The fact that the beneficiary manages
a business does hot necessarily establish eligibility for classification as an intracompany transferee in a
managerial or executive capacity within the meanings of sections 101(a)(l5)(L) of the Act. See 52 Fed.
Reg. 5738.5739 (Feb. 27, 1987). The record must establish that the majority of the beneficiary's actual
duties are managerial or executive in nature. The actual duties themselves reveal the true nature of the
employment. Fedin Bros. v. Sava, 724 F. Supp. at 1108.
As discussed above, the beneficiary's job description appears to include non-qualifying duties associated
with the petitioner's day-to-day functions, and the petitioner has not sufficiently identified how the
subordinate staff would have relieved the beneficiary from performing routine duties inherent to this
function. The fact that the beneficiary has been given a managerial job title is insufficient to elevate her
position to that of a "function manager" as contemplated by the governing statute and regulations. Based
SRC 05 80023337
Page 10
on the foregoing discussion, the petitioner has not established that the beneficiary has been employed in a
managerial or executive capacity by the foreign entity. For this reason, the appeal will be dismissed.
The fourth issue to be addressed in this proceeding is whether the petitioner submitted sufficient evidence
to establish that the beneficiary will be employed in an executive or managerial capacity in the United
States within one year.
The record is not persuasive in demonstrating that the beneficiary would be employed in a managerial or
executive capacity as defined at section 101(a)(44) of the Act. 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-l 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 ofthe petition. See 8 C.F.R. § 214.2(l)(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 has not submitted sufficient
evidence to establish that the intended United States operations, within one year of approval, will support
an executive or managerial position.
The nonimmigrant petition was filed on April 12,2005. In a support letter, the petitioner described the duties
to be performed by the beneficiary in the United States as the following:
[The beneficiary] will be running the Florida Corporation. She will be the President and
General Manager. The company has an office in Orlando, Florida pursuant to a Lease. [The
beneficiary] will'be directly managing subordinates during the initial phase of the business
development and will be responsible for training, recruitment and company management.
She will also be responsible for speaking, consulting, and training at seminar classes that the
company offers. This undertaking requires significant executive and therapeutic skills; in
fact, the duties of the position are primarily executive and therapeutic in nature.
In keeping with [the beneficiary's] significant business background and experience, her
main focus will be tp establish the company's goals and policies through planning,
organization, directing and controlling the company's management functions in the United
States. [The beneficiary] will have wide latitude in discretionary decision-making regarding
policy decisions as related to the financing, accounting, marketing, inventory control[,] sales,
consulting and planning therapeutic seminar classes offered by her through the company.
Additionally, the company anticipates the hiring of additional people to handle the day-to­
day tasks within a short period of time. [The beneficiary] will periodically meet with
professionals in accounting, law, and banking to assist in furthering the goals for both the
parent and the subsidiary.
SRC 05 80023337
Page 11
[The beneficiary] will be the senior level person in the ,U.S. organization responsible for
planning, organizing, directing and controlling the company's major functions; more
importantly, she will be responsible for development and successful implementation of
strategic objectives and plans in conjunction with the parent company objectives.
[The beneficiary] will use her independent judgment and authority to identify and develop
the business, and to develop strong and mutually beneficial relationships with suppliers and
the community.
On May 10, 2005, the director issued a notice requesting additional information of the beneficiary's
proposed employment with the U.S. entity. Specifically, the director requested that the petitioner submit
a business proposal describing the duties of the beneficiary after the initial start-up year, including the
percentage of her time which the beneficiary will spend in performing each of the duties. In addition, the
director requested the petitioner's proposed staffing level by the end of the first year of operations,
including the position titles and proposed duties of its anticipated employees.
In the response, the petitioner reiterated the job duties previously indicated in the supporting documentation
and stated that "the minimum staffing level will be three persons and [the beneficiary] to start and will
continue to increase as needed based on [the beneficiary's] discretion."
The petitioner did not submit the proposed duties of the beneficiary after the initial first year of operations,
nor did the petitioner submit the percentage of time the beneficiary will spend on each duty, or the position
titles and proposed duties of employees the U.S. entity proposes to hire. Failure to submit requested
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. §
103.2(b)(14).
The director denied the petition and stated that the petitioner has not established that the beneficiary will be
employed in a managerial or executive capacity with the U.S; entity.
On appeal, the petitioner asserts that the petition should not be denied on this basis since "this type of Visa is
for minimum period of one year. After the one year initial start-up, the parent company will decide whether
or not to renew." In addition, the petitioner clarifies that the additional employees the U.S. entity plans to
hire within one year of operating the business will be employees that will assist with the provision of
counseling and therapy services.
On review, the petitioner's assertions are not persuasive. 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(l)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to
be performed and indicate whether such duties are in a managerial or executive capacity. Id.
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
spend a 'majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9thCir. July 30, 1991).
SRC 05 800 23337
Page 12
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. Go.; Ltd. v. Sava, 724 F. Supp. at 1103.
.'. . .
The petitioner provided a vague and nonspecific description of the beneficiary's propqsed duties that'fails
.to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states
vague duties such as the beneficiary wilf be responsible for establishing the company's "goals and
policies through planning, organization, directing and controlling the company's management functions in .
the United States," and the beneficiary will have "wide latitude in discretionary decision-making
regarding policy decisions as' related to the financing, accounting, marketing, inventory contt:ol, sales,
consulting and planning therapeutic' seminar classes." 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. 1'he petitioner has failed to provide any detail' or
explanation of the beneficiary's activities in the course of her daily routine. The actual duties themselves
will reveal the true natUre of the employment. FedinBros: Co~,Ltd. v. Sava, 724 F. Supp. at 1108. The
petitioner's descriptions of the beneficiary's proposed position do not identify the actual:duties' to be .
performed, such that tlley could be classified as managerial or executive in nature."
The job description also includes several non-qualifying duties such as :the beneficiary will be responsible
for "speaking; consulting and training at seminar cla,sses that the company offers." It appears that the
beneficiary will be directly providing the services of the business rather then directing such activities
through subordinate employees. An employee who "primarily" performs the tasks necessary to produce a
product or provide a service is not considered,to be "primarily" employed in a managerial or executive
capacity. See sections 101(a)(44)(A) and (B) of the J\ct (requiring that one "primarily" perfo:rm the
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I &
N Dec. 593, 604 (Comm. 1988).
The petitioner's description of the beneficiary's' duties cannot be read or considered in 'the abstract, rather
the AAO must determine based on the totality of the record whether the description of the.beneficiary's
duties represents a credible account ofthe beneficiary's role within the organizational hierarchy. As noted
by the petitioner on appeal, the petitioner, plans to hire three additional employees to '.'assist with the
counseling and therapy." Thus, it appears that the only individual in charge of running the business and'
· managing the sales, marketing, paYroll, customer service and finance operations will be the beneficiary
herself. It appears that the proposed employees will assist with the counseling and therapy services,
however, the beneficiary, iIi addition to personally providing counseling services, is the only employee
who will perform the majority.ofthe operational tasks required in running' a business. Accordingly, the
· director reasonably concluded that the beneficiary as the petitioner's only managerial employee will be'
performing the day40-day operations and directly be providing the services of the business rather than
directing such activities through subordinate employees. An employee who "primarily" performs the
tasks necessary to produce a product orprovide 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 International 191 & N Dec. at 604.
SRC 05 800 23337
Page 13
Furthermore, as contemplated by the regulations, a comprehensive business plan should contain, at a
minimum, a description of the business, its products and/or services, and its objectives. See Matter ofHo,
22 I&N Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory
requirements for the alien entrepreneur immigrant visa classification, Matter ofHo is instructive as to the
contents of an acceptable business plan:
The plan should contain a market analysis, including the names of competing businesses
and their relative strengths and weaknesses, a comparison of the competition's products
and pricing·structures, and a description of the target market/prospective customers of the .
new commercial enterprise. The plan should list the required permits and licenses
obtained. If applicable, it should describe the manufacturing or production process, the
materials required, and the supply sources. The plan should detail any contracts executed
for the supply of materials and/or the distribution of products. It should discuss the
marketing strategy of the business, including pricing, advertising, and servicing. The plan
should set forth the business's organizational structure and its personnel's experience. It
should explain the business's staffing requirements and contain a timetable for hiring, as
well as job descriptions for all positions. It should contain sales, cost, and income
projections and detail the bases therefore. Most importantly, the business plan must be
credible.
Id.
The petitioner submitted a brochure for the services that will be provided by the U.S. entity. The
petitioner did not submit a business plan that outlines how the U.S. entity will achieve the listed
objectives and plans and if it is financially feasible to do so. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Soffici, 22 I&N Dec. at 165. Although the petitioner has submitted a one-page document
labeled "projected cash flow," this document shows that the company intends to derive its income from
construction, "dig up of land," "drain server" and "electricity power." Given the petitioner's statements
that the company intends to operate as a provider of counseling and therapy services, the projected cash
flow is not credible. 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 ofHo, 19 I&N Dec. at 591.
Thus, the petitioner has not submitted sufficient evidence to demonstrate that the intended U.S. operation,
within one year of the approval of the petition, will support an executive or managerial position.
Specifically, the petitioner has not adequately defined the proposed nature of the office, and had not
realistically described the scope of the entity, its organizational structure and its financial goals.
While not directly addressed by the director, the minimal documentation of the foreign entity's business
operations raises the issue of whether the petitioner is a qualifyIng organization doing business abroad.
The majority of the invoices and receipts submitted with the petition are addressed to Mr. •••••
rather than to the foreign company. The petitioner has not explained why the invoices have been issued
by Mr. one ·of the owners of the foreign entity, and not by the foreign company. It is incumbent
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
SRC 05 80023337
Page 14
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). In addition, the petitioner did not submit any invoices or receipts for the foreign company
beyond April 2004, therefore, the evidence does not demonstrate that the foreign entity is current doing
business abroad.
Beyond the decision of the direct'or, the petition indicates that the beneficiary owns 50 percent of the
foreign entity, and thereby of the petitioning company. The regulation at 8 C.F.R. § 214.2(l)(3)(vii) states
that if the beneficiary is an owner or major stockholder of the company, the petition must be accompanied
by evidence that the beneficiary's services are to be used for a temporary period and that the beneficiary
will be transferred to an assignment abroad upon the completion of the temporary services in the United
States. In this matter, the petitioner has not furnished evidence that the beneficiary's services are for a
temporary period and that the beneficiary will be transferred abroad upon completion of the assignment.
In addition, the fact that the owner of half of the foreign corporation resides in the United States raises the
question of whether the parent organization is still doing business so that a qualifying relationship exists
pursuant to 8 C.F.R. § 214.2(l)(l)(ii)(G). For these additional reasons, the appeal must be dismissed and
the petition denied.
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),
ajJ'd. 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 for the above stated reasons, with each considered as an independent and
alternative basis for the decision. In visa petition proceedings, the burden of proving eligibility for the
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U:S.C. § 1361. Here, that
burden has not been met. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.