dismissed L-1A Case: Custom Clothing

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riming data deleted 0 
pent clearly unwmanteel 
invasion of personal privw) 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington. DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 08 015 52147 Office: VERMONT SERVICE CENTER Date: ,jM 1 4 2010 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. $ 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any 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 1-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
V~erry Rhew 
Chief, Administrative Appeals Office 
EAC 08 015 52147 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 1 Ol(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 9 1101(a)(15)(L). The petitioner, an Oklahoma limited liability company, claims to be a subsidiary of 
- ~ 
located in Vietnam, and indicates that it will operate a custom clothing and tailor shop 
in the United States. The petitioner seeks to employ the beneficiary in the position of general manager of its 
new office for a period of three years.' 
The director denied the petition on three independent and alternative grounds, concluding that the petitioner 
failed to establish: (1) that the U.S. company has a qualifying relationship with the foreign entity; (2) that the 
beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity; and (3) 
that the beneficiary would be employed by the U.S. entity in a primarily managerial or executive capacity 
within one year of 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 all evidence 
required for approval for the petition was previously submitted. Counsel suggests that the director 
misinterpreted the beneficiary's current and proposed job duties and misapplied the evidentiary requirements 
applicable to the requested classification. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on 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. 
- - - - - - - - 
1 
 Pursuant to the regulation at 8 C.F.R. 4 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
EAC 08 01 5 52147 
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. 3 214.2(1)(3)(v) also provides 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 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: 
(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 financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The first issue addressed by the director is whether the petitioner established that the U.S. and foreign entity's 
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)(lS)(L) of the Act; 8 C.F.R. 5 2 14.2(1). 
The regulation at 8 C.F.R. tj 214.2(1)(l)(ii) states, in pertinent part: 
(G) 
 Qualzfiing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
EAC 08 015 52147 
Page 4 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee[.] 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
(L) Affiliatemeans 
(I) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
The petitioner stated on Form 1-129, Petition for a Nonimmigrant Worker, that the U.S. company is a wholly- 
owned subsidiary of. The petitioner submitted a copy of the U.S. entity's articles of 
organization in support of the petition, but did not provide evidence of the company's ownership. 
On December 28, 2007, the director issued a request for additional evidence (RFE), in which the director 
instructed the petitioner to submit, inter alia, evidence of the ownership and control of both the U.S. and 
foreign entities, including, but not limited to, copies of stock certificates, stock ledgers, and articles of 
incorporation. In addition, the director requested evidence of the size of the United States investment by the 
foreign entity. Finally, the director requested evidence that the foreign entity continues to do business, such as 
copies of audited or reviewed financial statements or annual corporate tax returns. 
The petitioner's response included: a "Register to Operate Limited Liability Company" for '1 
1 owns 53.3% of the company's issued shares, while the remaining shares 
are owned by the beneficiary (20%) and two other shareholders (13.3% each). 
EAC 08 015 52147 
Page 5 
As evidence of the foreign entity's ongoing business operations, the petitioner submitted tax certificates issued 
to the beneficiary for the years 2004, 2005 and 2006; a November 2005 payroll list; and photographs 
depicting the operation of the foreign entity. 
With respect to the U.S. company, the petitioner re-submitted its Oklahoma Certificate of Limited Liability 
Company and articles of organization, neither of which identifies the ownership of the company. 
The petitioner also submitted the U.S. company's bank statement for the month of November 2007 and a wire 
transfer notification, which indicate that the company received a wire transfer in the amount of $30,000 from 
on November 19, 2007. The payment detail on the notification suggests that the money 
was provided as payment for various container shipments. 
The director denied the petition on August 26, 2008, concluding that the petitioner failed to establish that the 
U.S. and foreign entities have a qualifying relationship. In denying the petition, the director observed that no 
evidence was submitted to clearly establish that the foreign entity owns the petitioning company, as claimed. 
The director further found insufficient evidence to establish that the foreign entity continues to do business, 
noting that the most recent financial document submitted was a tax certificate dated March 19,2006. 
Finally, the director noted that, while it appears that the beneficiary, as the sole organizer of the U.S. 
company, may hold an interest in the petitioner, he does not have a controlling interest in the foreign entity, 
and therefore it had not been established that the two entities have an affiliate or other qualifying relationship. 
On appeal, counsel for the petitioner asserts that "MA doesn't not [sic] require the beneficiary to hold a 
controlling interest in the foreign entity." Counsel further contends that the petitioner is 100 percent owned by 
and claims that the petitioner submitted evidence of a wire transfer from "Vietnam 
Export Import Commerce Bank." 
Upon review, the petitioner has not established that the petitioner and foreign entity have a qualifying 
relationship. 
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. 
While the petitioner and counsel have repeatedly asserted that the foreign entity wholly owns the U.S. 
company, the record remains devoid of any documentary evidence of the ownership and control of the U.S. 
company, such as its limited liability company operating agreement or membership certificates. 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)). Without documentary evidence to support the claim, 
the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of 
EAC 08 015 52147 
Page 6 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Furthermore, the wire transfer the petitioner submitted as the foreign entity's proof of investment in the U.S. 
company appears to have originated from an unrelated entity, and therefore, the evidence 
does not support an affirmative determination that the claimed parent-subsidiary relationship exists. 
The petitioner has now had three opportunities to provide the required evidence of ownership of the U.S. 
company and has failed to do so. 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)(14). The non-existence or other unavailability 
of required evidence creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 
The AAO further concurs with the director that the record as presently constituted contains insufficient 
evidence of the continued operation of the foreign entity in Vietnam. The petitioner has not addressed this 
finding on appeal and has therefore not overcome the director's adverse determination. 
Finally, while counsel is correct to state that the statute does not require the beneficiary to hold a controlling 
interest in the foreign entity, counsel appears to have misunderstood the grounds for denial of the petition. 
The petition was denied due to the complete lack of documentary evidence of the claimed parent-subsidiary 
relationship between the foreign and U.S. entities. The director, in discussing the beneficiary's ownership 
interest in the foreign entity, was speculating as to whether an affiliate relationship may exist between the two 
entities based on common ownership by the beneficiary. The director's analysis was flawed as it was based on 
an assumption that the beneficiary may be the sole member of the U.S. entity. There is no evidentiary 
foundation for such an assumption, given the lack of documentation regarding the U.S. company's ownership. 
Based on the foregoing discussion, the petitioner has not established that there is a qualifying relationship 
between the U.S. and foreign entities. Accordingly, the appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner established that the beneficiary has been 
employed by the foreign entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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; 
(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 
EAC 08 015 52147 
Page 7 
(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 1101(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. 
On the Form 1-129, Petition for a Nonimmigrant Worker, the petitioner described the beneficiary's duties with 
the foreign entity as follows: 
During the past three years, [the beneficiary] managed , oversee the 
investment of funds, manage associated risks, supervise cash management activities, 
supervise employees, review their output, established administrative procedures and policies. 
In the request for evidence issued on December 28, 2007, the director instructed the petitioner to submit: 
complete position descriptions for the beneficiary and his subordinates; a breakdown of the percentage of time 
the beneficiary and his subordinates devoted to each of their job duties on a weekly basis; an organizational 
chart; information regarding the skills required to perform the overseas duties; and the amount of time the 
beneficiary allocated to managerial versus non-managerial duties. 
In response, the petitioner indicated that the beneficiary is employed by the foreign entity as vice president of 
operations, supervising the vice president of sales and human resources manager. The petitioner stated that the 
foreign entity also employs a "Veston Master," "Dresses Master" and "helpers" who are responsible for 
cutting, sewing, buttoning and embroidery. The petitioner stated that the beneficiary's position required the 
following technical and managerial skills: 
The executive/managerial and technical skills would include managed the operation, and 
making decision based on what VP of Sales and HR manager reported. Also have to be there 
to sign the contract with client after VP of Sales negotiates the price. Also involving hiring 
and firing employees' base [sic] on unsatisfied performance. And the technical skill would be 
able measure, custom cutting and sewing a whole suite [sic] and/or long dress from scratch. 
And the ability to run the day to day operation including talking to client and able to tell them 
which is fit and look right to the client, able to know the bills and pay all the bills. Knowing 
the material and purchasing the supplies and of course master the sewing skills. 
EAC 08 015 52147 
Page 8 
For the time spent by beneficiary abroad would be about 50% on managing the other 
supervisors and making decision based on what observed and based on the reports that other 
supervisors reported. Other 30% would be sales and marketing the products to clients and 
20% would be for ordering raw material, equipments and actual making of the product like 
custom tailor clothes for VIP clients. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary has been 
employed by the foreign entity in a primarily managerial or executive capacity. The director noted that, while 
the beneficiary had a managerial job title, the evidence was insufficient to establish that his duties were 
primarily managerial or executive in nature, particularly in light of the size and nature of the business. 
On appeal, counsel emphasizes that the petitioner previously explained that the beneficiary spent "about 50%" 
of his time managing other supervisors, 30% of his time on sales and marketing, and 20% of his time on 
ordering raw material, equipment and making finished products for the petitioner's customers. 
Upon review, the petitioner has not established that the beneficiary was employed by the foreign entity in a 
primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(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 prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Here, the petitioner concedes that the beneficiary spends a full 50% of his time on duties which have not been 
shown to be managerial or executive in nature, including sales and marketing, ordering raw materials and 
equipment, and custom tailoring products for customers. While the petitioner indicates that the beneficiary 
devotes the remaining 50% of his time to supervising a vice president and a human resources manager, the 
petitioner has not clearly delineated what specific tasks the beneficiary performs in this regard. For example, 
the petitioner states that the beneficiary "makes decisions" based on his observations and the reports of his 
subordinates, but the petitioner has not provided examples of the beneficiary's managerial decisions, although 
such information was specifically requested by the director. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. at 165. Since the petitioner has not identified the specific managerial duties the 
beneficiary performs, the AAO cannot conclude that the 50 percent of his time claimed to be allocated to such 
duties is actually spent performing duties that fall under the statutory definitions of managerial or executive 
capacity. 
Moreover, a managerial or executive employee must have authority over day-to-day operations beyond the 
level normally vested in a first-line supervisor, unless the supervised employees are professionals. See Matter 
EAC08015 52147 
Page 9 
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). The evidence of record does not 
clearly establish that the beneficiary's claimed subordinates actually supervise subordinate employees, 
notwithstanding their managerial job titles. 
An employee will not be considered to be a supervisor simply because of a job title, because he or she is 
arbitrarily placed on an organizational chart in a position superior to another employee, or even because he or 
she supervises daily work activities and assignments. In order to be a supervisor, the employee must be 
shown to possess some significant degree of control or authority over the employment of a subordinate. See 
generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (Cited in 
Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at * 16 (E.D. Tex. Jan. 1 1, 2007)). The petitioner was 
requested to provide complete position descriptions for all employees subordinate to the beneficiary and to 
identify the foreign entity's employees by name and job title. The petitioner identified only two employees, 
the vice president of sales and human resources manager, by name, and the brief position descriptions 
provided for these employees did not include any supervisory duties. The evidence of record does not 
establish that the beneficiary supervises subordinate supervisors or managers. Nor has the petitioner provided 
evidence that the beneficiary's subordinate employees possess or require a bachelor's degree, such that they 
could be considered professionals.2 
Although the appeal will be dismissed, the AAO notes that the director based his decision, in part, on an 
improper standard, when she noted that "USCIS is not persuaded in a business the size and nature of yours, 
the beneficiary was engaged in primarily executive or managerial duties." The director's comments are 
inappropriate. Although USCIS must consider the reasonable needs of the petitioning business if staffing 
levels are considered as a factor, the director must articulate some rational basis for finding a petitioner's staff 
or structure to be unreasonable. See section 10 l(a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C). The fact 
that a petitioner is a small business or engaged in a particular industry will not preclude the beneficiary from 
qualifying for classification under section 101(a)(15)(L) of the Act. Here, the director failed to articulate the 
basis for his conclusion that the beneficiary was "engaged primarily in the non-management, day-to-day 
operations involved in producing a product or providing a service." 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 10 l(a)(44)(C) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(C). 
2 
 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 10 1 (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, 1 1 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. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. 
EAC 08 015 52147 
Page 10 
However, notwithstanding the director's omission of the required analysis to support his conclusions, the 
AAO notes that 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 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 
923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990)(per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for 
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. 200 1). 
The petitioner indicates that the foreign entity operates a custom dressltailor shop staffed by a president, two 
vice presidents, a human resources manager, and additional unidentified and undocumented "masters" and 
"helpers" who are claimed to actually produce the products and provide the services of the company. At the 
same time, the petitioner indicates that the beneficiary, who is claimed to be second only to the company 
president in the company's organizational hierarchy, is required to spend a full 50 percent of his time 
performing purchasing, sales, marketing and tailoring activities. The petitioner has not explained how the 
reasonable needs of the petitioning enterprise justify the beneficiary's performance of such a large portion of 
the company's non-managerial and non-executive duties. Considering the lack of evidence of the foreign 
entity's employment of the claimed "masters" and "helpers" and the petitioner's emphasis on the beneficiary's 
tailoring and sewing skills, the AAO is left to question what proportion of the foreign entity's services are 
actually performed by the beneficiary. 
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 
lOl(a)(44)(A) and (B) of the Act, 8 U.S.C. tj 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. 
Based on the foregoing discussion, the AAO concurs with the director's conclusion that the evidence of record 
is insufficient to establish that the beneficiary has been employed by the foreign entity in a primarily 
managerial or executive capacity. As the petitioner has not submitted any additional evidence or argument on 
appeal to overcome this decision, the appeal will be dismissed. 
The third and final issue addressed by the director is whether the petitioner established that the beneficiary 
would be employed in the United States in a primarily managerial or executive capacity within one year of 
approval of the petition. 
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
USCIS regulation, that allows for a more lenient treatment of managers or executives that are entering the 
United States to open a new office. When a new business is first established and commences operations, the 
regulations recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of low level activities not normally performed by employees at the executive or 
managerial level and that often the full range of managerial responsibility cannot be performed in that first 
EAC 08 015 52147 
Page 11 
year. In an accommodation that is more lenient than the strict language of the statute, the "new office" 
regulations allow a newly established petitioner one year to develop to a point that it can support the 
employment of an alien in a primarily managerial or executive position. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is prepared to commence doing business immediately upon approval so that it will support 
a manager or executive within the one-year timeframe. This evidence should demonstrate a realistic 
expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental 
stage to full operations, where there would be an actual need for a manager or executive who will primarily 
perform qualifying duties. See generally, 8 C.F.R. fj 214.2(1)(3)(~). At the time of filing the petition to open a 
"new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to 
house the new office and that it will support the beneficiary in a managerial or executive position within one 
year of approval. Specifically, the petitioner must describe the nature of its business, its proposed 
organizational structure and financial goals, and submit evidence to show that it has the financial ability to 
remunerate the beneficiary and commence doing business in the United States. Id. 
The petitioner filed the nonimmigrant petition on October 18, 2007. The petitioner submitted evidence that 
the U.S. company was organized as an Oklahoma limited liability company on October 1,2007, and provided 
a copy of its lease agreement. On the Form 1-129, Petition for a Nonimmigrant Worker, the petitioner 
indicated that as general manager of the U.S. entity, the beneficiary will have "complete responsibility for 
hiring, firing, training, budget, profit and loss, etc." The petitioner did not submit evidence of the U.S. 
company's proposed organizational structure, evidence of the size of the United States investment, or other 
evidence required by the regulations at 8 C.F.R. 5 214.2(1)(3)(v)(C). 
Accordingly, in the RFE issued on December 28, 2007, the director instructed the petitioner to submit: (I) a 
copy of the U.S. company's business plan, giving specific dates for proposed actions for the next two years; 
(2) a comprehensive description of the beneficiary's proposed duties, with an explanation as to how such 
duties will be primarily managerial or executive in nature within one year; and (3) evidence of the size of the 
United States investment and the financial ability of the foreign entity to commence doing business in the 
United States. 
In response, the petitioner described the beneficiary's proposed duties as the following: 
[The beneficiary] while on duty oversea would spent [sic] the whole 6 days per week working 
on set up the new business, by looking for the new office location, and sign the lease on 
behalf of [the foreign entity]. And open new bank account and money will be transferred to 
the account from [the foreign entity] in Vietnam. And daily functions would include answer 
the phone call, greeting clients, show clients the products and services offered by [the U.S. 
company] and ordering raw materials, supplies, equipments and print flyers and pass them 
out the supermarket, shopping center. And of course [the beneficiary] would be the one who 
tailor the clothes based on the client's request. Since, this is a new opportunity and the term of 
the company still waiting for INS to make decision. [The petitioner] has not hired any other 
employee right now. The only thing that [the petitioner] needs help on is accounting 
functions. All accounting is currently out sources [sic] since [the beneficiary] is not 
understands [sic] well all the accounting and taxes in the United States therefore this is a must 
out sourcing. 
EAC 08 015 52147 
Page 12 
The petitioner further stated: 
The executive/managerial duties oversea are about 25% on managing the day to day 
operation like ordering raw mate 
 e of the major decision would 
required the verbal approval of 
 abroad. And the other 75% is 
focusing on measuring, cutting and sewing. So most of the time is non executive functions 
while operating oversea. Since right now it's a startup company most of the job would be the 
actual sewing to prove to clients while abroad and outsource the accounting part. 
The petitioner stated that the beneficiary's intended period of assignment is three years, after which he will 
transfer his duties to "other managers." The petitioner noted that the beneficiary "will need to hire 
employees/staff prior to his departure back to Vietnam." 
In a letter dated October 18, 2007, the petitioner stated that the initial set up cost for the U.S. company is 
$70,000, which will be used for "business machinery, business equipments and supplies, trading fees and 
taxes." The petitioner indicated that the money would be provided in three installments in the amounts of 
$20,000, $25,000 and $25,000. The petitioner attached the above-referenced wire transfer notification 
indicating that the company received a wire transfer in the amount of $30,000 from 
- 
Finally, the petitioner submitted a three-page business plan which briefly describes the company's business 
positioning strategy, marketing strategy, advertising and promotion plans, and provides a "5-Year Forecast" 
for 'f According to the forecast, the petitioner anticipates paying wages and salaries of $40,000 
in 2008, its first full of operation. The brief business plan does not mention the number or type of staff to be 
hired, or any timeline for the hiring of additional employees. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity within one year. In denying the petition, the 
director noted that the petitioner indicated that the beneficiary would initially allocate 75 percent of his time 
to providing the services of the company, and had failed to identify any other employees to be hired within 
one year who would relieve the beneficiary from performing such non-qualifying duties. 
On appeal, counsel contends that the petitioner never stated that the beneficiary would devote 75 percent of 
his time to performing the services of the company. Rather, counsel asserts, "the petitioner states that since it 
is a startup company, the beneficiary has to do everything in order to set up new company in the United 
States." Counsel indicates that the beneficiary's duties will include hiring and firing employees, ordering raw 
materials, purchasing equipment and making marketing decisions. Counsel emphasizes that the beneficiary 
intends to "delegate his duties to other employees." 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed by the United States entity in a managerial or executive capacity within one year. 
The AAO notes that the petitioner's company name is not '' and there is no evidence that the 
company intends to operate using this name. 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). 
EAC 08 015 52147 
Page 13 
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. 5 214.2(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. 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. 5 214.2(1)(3)(~). 
In the instant matter, the petitioner failed to explain how the beneficiary would be relieved from performing 
non-qualifying duties within one year. Contrary to counsel's contention on appeal, the petitioner did in fact 
indicate that 75% of the beneficiary's time will be "focusing on measuring, cutting and sewing," while 25% of 
his time would be devoted to "managing the day-to-day operation like ordering raw material and equipment." 
The petitioner further indicates that the beneficiary will be performing customer service duties, tailoring 
clothes and passing out flyers in supermarkets and shopping centers. While it appears that the beneficiary will 
eventually have responsibility for hiring subordinate employees, the petitioner has failed to provide any 
timeline for hiring additional staff, and no indication as to the number or type of staff to be hired. The 
petitioner only stated that the beneficiary would have to hire unidentified "staff' before returning to Vietnam. 
Absent information regarding the number and types of workers to be hired and the company's ability to 
support the hiring of such subordinate staff, the AAO cannot conclude that the beneficiary would be relieved 
from performing primarily non-managerial duties within one year. 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 
Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
Although the director noted the lack of evidence with respect to the company's proposed staffing and 
organizational structure in the notice of denial, the petitioner has not addressed the petitioner's proposed 
staffing levels on appeal, other than counsel's unsupported assertion that the beneficiary will hire employees 
upon approval of the petition. The minimal evidence does not in fact establish a reasonable expectation that 
the business will rapidly expand to the point where it requires a manager or executive to primarily perform the 
high-level duties contemplated by the statutory definitions. In fact, the amount of money budgeted for 
payment of wages and salaries during the first full year of operations, $40,000, is lower than the beneficiary's 
proffered annual salary, which further precludes a finding that the petitioner intends to hire subordinate staff 
within one year. 
A related issue not addressed by the director is whether the petitioner provided sufficient evidence of the size 
of the financial investment in the new United States office, as required by 8 C.F.R. 5 214.2(1)(3)(v)(C)(2). 
The petitioner indicates that its anticipated start-up costs will amount to $70,000 but has not provided 
evidence that it has received or will receive this funding. As noted above, the petitioner has received a 
I 
, . 
EAC 08 015 52147 
Page 14 
payment of $30,000, but there is insufficient evidence that this money was intended to be an investment in the 
U.S. company by the foreign entity. 
Therefore, the AAO's review of this issue is severely restricted by the petitioner's failure to submit evidence 
or information regarding the beneficiary's proposed duties and the proposed organizational structure of the 
office as required by 8 C.F.R. 5 214.2(1)(3)(v)(C). 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. The AAO cannot speculate as to when or how many employees might be hired or otherwise 
determine how many employees the company would support at the end of the first year of operations, or who 
would be performing the day-to-day, non-managerial functions of the business. 
The AAO does not doubt that the beneficiary will have supervisory authority over the petitioner's business. 
However, 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). Overall, the vague job description provided for the 
beneficiary, the lack of detail regarding the petitioner's business plan and hiring plan for the first year of 
operations, considered with the lack of evidence of the size of the U.S. investment, prohibits a determination 
that the petitioner could realistically support a managerial or executive position within one year. For this 
reason, the appeal will be dismissed. 
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), affd. 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 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.