dismissed L-1A Case: Dairy Operations Management

identifjring data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: LIN 05 102 5 Date: SEP 0 5 2006 
IN RE: 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) 
IN BEHALF OF BENEFICIARY: 
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. 
-I 
< 
 /- +'' 
/ 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 05 102 51418 
Page 2 
DISCUSSION: The Director, Nebraska 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 chief 
executive officerlgeneral manager to open a new office in the United States 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. 5 1101(a)(15)(L). The petitioner, a limited liability company organized under the laws of the State of 
Missouri, is in the business of managing 
 operations and alleges that it has a 
qualifying relationship as a subsidiary with 
 a business entity incorporated as a 
private company under the laws of New Zealand. 
The director denied the petition based on the following independent conclusions: (1) that the petitioner did 
not prove the existence of a qualifying relationship as defined in 8 C.F.R. 5 214.2(1)(l)(ii); (2) that the that the 
petitioner failed to establish that the beneficiary had been employed in a primarily managerial or executive 
capacity with the foreign entity for one year within the preceding three years; and (3) that the petitioner failed 
to prove that the United States operation, within one year of the approval of the petition, will support an 
executive or managerial position. 
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, the petitioner asserts that the director erred in 
denying the petition because (1) the petitioner supplied sufficient evidence supporting its claim to a qualifying 
relationship as clarified on appeal; and (2) there is ample evidence on the record to establish that the 
beneficiary had been working in an executive or managerial position overseas and will work in an executive 
or managerial position for the United States entity within one year of the approval of the petition. In support 
of its appeal, the petitioner submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 
LIN 05 102 51418 
Page 3 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies 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. 
In addition, the regulation at 8 C.F.R. $ 214.2(1)(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, 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)(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 issues in this proceeding are (1) whether the petitioner established the existence of a qualifying 
relationship as defined in 8 C.F.R. 5 214.2(1)(l)(ii); (2) whether the petitioner established that the beneficiary 
had been employed in a primarily managerial or executive capacity with the foreign entity for one year within 
the preceding three years; and (3) whether the petitioner established that the United States operation, within 
one year of the approval of the petition, will support an executive or managerial position. 
LIN 05 102 51418 
Page 4 
The first issue is whether the petitioner has proven the existence of a qualifying relationship as defined in 8 
C.F.R. $ 214.2(1)(l)(ii). 
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 
101 (a)(l5)(L) of the Act; 8 C.F.R. $ 214.2(1). 
Title 8 C.F.R. t$ 214.2(1)(l)(ii)(K) defines "subsidiary" as: 
[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. 
In a letter dated February 16, 2005 appended to the initial petition, the petitioner described itself as a 
subsidiary of the beneficiary's employer abroad, - a New Zealand private company. As 
. . 
evidence of this qualifying relationship, the petitioner submitted articles of organization for the p 
imited liability company, and an operating agreement for the petitioner, which identifies 
as the sole member of the petitioner. The operating agreement also appoints the beneficiary as the 
manager of the petitioner. The petitioner also submitted evidence proving the existence and ownership of the 
foreign employer including a New Zealand certificate of incorporation and a financial statement. The 
financial statement indicates in both the statement of shareholder accounts and in the comDanv director that 
the beneficiary (identified as Is the majority stockholder. 
In addition, the petitioner indicated in its 
 will provide services to 
both the petitioner and to an entity called 
 The petitioner 
asserts that the petitioner is the sole 
 , that the petitioner "will cany out 
much of its business through that limited partnership," and that the petitioner and 
each applied for, and each have 
 numbers. The petihoner a so provided a 
copy of a deed evidencing that 
I have 
(and not the petitioner) acquired a dairy operation in 
Missouri, and a Missouri 
 Registration describing the relationship between 
the foreign entity, the petitioner, an 
 s follows: 
[now known as 
w Zealand 
Director, and 24% owned by 
 Trust of 
are Trustees. [The beneficiary] is the Manager of Focal 
le General Partner, control- Also, 
not to be made by its General Partner require a 75% 
affirmative vote. Thus, through the combination of [the beneficiary's] position as sole 
LIN 05 102 51418 
Page 5 
Manager of the General Partner o 
 their 30% interest in 
the limited partnership, [the 
 own the controlling 
ownership interest i 
Trustees) as the owner of a 30% interest in the limited partnership as a limited partner and the petitioner as the 
owner of a 1% interest as a general partner. 
On March 1, 2005, the director requested additional evidence. 
 Specifically, the director requested 
documentary evidence establishing a qualifying relationship 
 entity and - 
L.P., since the duties of the beneficiary will entail work for both 
 and the petitioner. 
In response, the petitioner referred the director to the Missouri Foreign-Owned Agricultural Land Registration 
submitted with the initial petition describing the relationship between the foreign entity, the petitioner, and 
The petitioner also provided, inter alia, a letter dated March 4, 2005 from the petitioner's 
Missouri attornevs. -hstrong. Teasdale LLP, which ex~lains that the beneficiary will be an employee of the 
On March 24, 2005, the director denied the petition. The director determined that, since the ownership 
records for 
 the petitioner contain inconsistencies, he could not determine 
., and thus the petitioner failed to prove the existence of a qualifying 
relationship. 
On appeal, the petitioner provided a copy oarhership Agreement and sought to clarify the 
inconsistencies relied upon by the director in denying 
 tition. The petitioner explained that Focal 
. amended its ownership percentages after th 
 Business Ownership Structure "organization 
chart" was written. Therefore, the petitioner previously provided two different, albeit correct, versions of the 
ownership record for the limited partnership from two different time periods. 
provided evidence that, as of the 
 the petition, the petitioner owned 
general partner and the " 
 owned 30% o 
In addition to explaining this inconsistency, the petitioner provided a copy of the Partnership Agreement 
which explained the role of the limited partners in the business 
Except as otherwise provided by law or in this Agreement, whenever an action is to be 
taken by the Partnership or whenever this Agreement refers to an action to be taken by 
the General Partner or the Limited Partners, such action shall be taken with the agreement 
of the General Partner andlor a vote of at least seventy-five percent (75%) of the Limited 
Partners, as the case may be. 
Also, the Partnership Agreement explained that the limited partnership shall be dissolved only if all the 
partners consent, or if the general partner withdraws from the partnership unless 75% of the remaining limited 
partners agree to continue the partnership and agree on terms to admit a new general partner. 
LIN 05 102 51418 
Page 6 
Upon review, petitioner's assertions are not persuasive. 
As a threshold issue the petitioner has not clearly established that it will even employ the beneficiary. Even 
if could be proven to be a qualifying organization, the beneficiary is prohibited from 
working for the limited partnership since it has not petitioned to employ the beneficiary in these proceedings. 
As explained in the letter dated March 4, 2005 from the petitioner's Missouri attorneys, Armstrong Teasdale 
LLP, "[the beneficiary] will also be an employee of the [petitioner] and/or (emphasis 
added). Since the petitioner does not know if it will even employ the petitioner and may apparently choose to 
permit a different employer to employ the beneficiary, the petition cannot be approved. For this reason alone, 
the petition will not be approved. 
Even assumin 
established that a qualifyi 
the petitioner asserts that 
"controlled" by the same person, the evidence submitted by the petitioner is not consistent with its 
characterization of the ownership structures of the various 
 le, the petitioner purports that 
the beneficiary and his spouse own 76% of the shares of 
 Ltd. However, the financial 
statement for the foreign entity indicates in both the 
 current accounts and in the 
company director that the beneficiary (identified as 
 is the majority stockholder. This was 
confirmed in a letter dated March 9, 2005, from 
 w Zealand law firm. 
is not mentioned in the financial statement nor in the letter from the New Zealand law 
the petitioner purports that the beneficiary and his spouse own a 30% interest in 
 However, 
Schedule A to the Limited Partnership Agreement lists the 'an 
 Trusts" as the 30% 
% and Agricultural Land Regis a ion as 
Trustees]). Therefore, it appears the beneficiary alone is the 76% owner o t e oreign 
the petitioner is the general partner of Focal Dairies, 
1 own 30% of the limited partnership in their capacities as trustees of 
a trust. 
Based on this evidence, the issue is whether the petitioner's role as general partner under the Limited 
Partnership Agreement coupled with the 30% interest in the limited partnership owned b the beneficia 
 and 
his spouse in their trustee capacities under the =SO known as the = and- 
Trust) is enough to prove that the limited partn 
 he foreign entity are sufficiently "controlled" by the 
same person or entity to establish a "qualifying relationship." It is concluded that the petitioner has not 
proven that there is sufficient control over both entities by the same persons or entities, directly or indirectly, 
to establish that there is a qualifying relationship. 
As explained above, the Limited Partnership Agreement vests the limited partners, when acting as a block of 
75% or more of the ownership interests, with the power to control the limited partnership and to override 
decisions made by the general partner. Therefore, unless the petitioner can prove that the same person or 
entity which controls or owns the foreign entity also owns or controls more than 25% of the limited 
partnership and controls the general partner, the petitioner cannot prove that a qualifying relationship exists. 
In this case, the owner of the foreign entity is the beneficiary alone. The owner of 30% of the limited 
LIN 05 102 51418 
Page 7 
partnership is the beneficiary and his spouse as trustees under a trust, presumably formed under the laws of 
New Zealand although this was not disclosed by the petitioner. Since the petitioner has not provided a copy 
of the trust document or any information regarding the trust's beneficiaries, it cannot be determined if the 
beneficiary and his spouse are permitted, as trustees, to vote the interest in the limited partnership without any 
restrictions. Moreover, ownership of a limited partnership interest as husband and wife is presumed to be 
held as tenants by the entireties in Missouri. See Feinberg v. Feinberg, 924 S.W.2d 328 (Mo. App. E. D. 
1996); Wehrheim v. Brent, 894 S.W.2d 227 (Mo. App. E. D. 1995). When property is owned as entireties 
property in Missouri, the "marital union" owns the property, not the individuals, and each spouse has an 
interest in the use and enjoyment of the whole. See Feinberg, 924 S.W.2d 328. Therefore, even if a trust was 
of the partnership interest, the fact that the beneficiary and his spouse own the 
interest i 
 and the beneficiary alone owns the interest in the foreign entity establishes that 
the same person does not control the entities. 
Accordingly, the petitioner has not proven that there is a qualifying relationship between the foreign employer 
and as defined by 8 C.F.R. 5 214.2(1)(1)(ii)(G), and the petition will be denied for that 
reason. 
The second issue is whether the beneficiary had been employed in a primarily managerial or executive 
capacity with the foreign entity for one year within the preceding three years. 
8 C.F.R. § 214.2(1)(3)(v)(B) requires that the petitioner prove that 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." 
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 
(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 
LIN 05 102 51418 
Page 8 
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. $ 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. 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act, and implies in its appeal that the beneficiary is acting as both. A beneficiary may not claim to be 
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If the 
petitioner is indeed representing the beneficiary as both an executive and a manager, it must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the statutory 
definition for manager. However, given the lack of clarity, the AAO will assume that the petitioner is 
asserting that the beneficiary is acting either in a managerial capacity or in an executive capacity and will 
consider both positions separately as if argued in the alternative. 
In the initial Form 1-129 petition, the petitioner described the beneficiary's duties with the foreign employer as 
follows: "Responsible for the management of all aspects of [the foreign employer] including financial 
management, farm administration, staff management, operations, risk management, asset protection, etc." 
The petitioner provided more detail regarding the beneficiary's job duties in a letter dated February 17, 2005. 
While this description was intended for the United States operation, the petitioner stated that the beneficiary's 
duties overseas were "very similar to the duties he will have in the U.S." The duties are as follows: 
Finance 
r3 
 Prepare annual budget and present to limited partners for review. Upon 
approval, implement budget. 
o 
 Provide operating cashflows monthly through dairy desk and ensure 
financial targets are achieved. 
Oversee the financial performance of all [the petitioner's] operations. 
r, 
 Monitor costs to ensure they fall within shareholder expectations as set 
out in the business plan. 
LIN 05 102 51418 
Page 9 
Farm Administration 
'a 
 Oversee and approve all expenditures. 
'a 
 Review monthly income and expenses, report to limited partners. 
Staff Management 
O 
 Ensure sufficient employment levels to enable the companies to meet the 
objectives contained in the business plan. 
a 
 Recruit, hire, train, and discipline staff as needed. 
O Draft standard employee contract. 
O Develop technical staff selection process to ensure high calibre 
personnel. 
a Liaise with local government and universities to promote job 
opportunities for U.S. workers. 
Operations 
O 
 Develop systems and relationships with local experts to effectively 
manage operations. 
a 
 Seek and engage professional business advice when required. 
.3 
 Organize and oversee overall development of dairy farming operations. 
a 
 Supervise each dairy operation to ensure the best on farm practices are 
used to achieve target production to the highest quality levels. 
Asset Protection 
a 
 Manage all farm and building construction and maintenance. 
a 
 Responsible for securing insurance policies as needed. 
Risk Management 
a 
 Ensure that all health and safety regulations are met, and that risks to 
staff and stock are minimized. 
O 
 Ensure that all environmental and animal control regulations are met. 
Communications 
a 
 Furnish directors with comprehensive monthly report. 
O 
 Attend bi-annual partner meetings and present outlines summarizing 
farm operation[']s financial performance and forward-loolung strategies. 
a 
 Hold monthly meetings with local stakeholders to discuss accounts for 
payment and general farm issues. 
c, 
 Keep close contact with designated stakeholder liaison to support general 
management and policy decisions. 
Other than credentials, articles about the beneficiary, and proof of employment, the petitioner provided no 
other documentation explaining the beneficiary's duties with the overseas employer. 
LIN 05 102 51418 
Page 10 
On March 1, 2005, the director requested additional evidence. 
 Specifically, the director requested 
documentary evidence that the beneficiary qualifies as a manager and an executive in the managing of a farm 
in New Zealand. This request included an organizational chart. 
On March 9,2005, the petitioner responded to the request for evidence. In response, counsel to the petitioner 
provided a list of employees of the foreign entity. This list, which is not organized as a chart referencing job 
descriptions or supervisory roles, identifies a "manager" (the beneficiary), one "assistant manager," and seven 
"dairy workers," with the explanation that two of the dairy workers have resigned. The petitioner also 
enclosed a job description for the beneficiary's foreign position. This job description contains general 
references to the beneficiary's responsibility for financial management, farm administration, staff 
management, operations, communications, asset protection, and risk management. 
On March 24, 2005, the director denied the petition. The director determined that the petitioner failed to 
establish that the beneficiary had been employed in a primarily managerial or executive capacity with the 
foreign entity for one year within the preceding three years. 
On appeal, counsel to the petitioner asserts that the director erred and that the beneficiary had been acting in a 
managerial or executive capacity for the foreign employer. Counsel argues that the New Zealand farm is a 
"highly complex operation" and a "multi-million dollar business" which could not operate successfully 
without at least one manager or executive. Further, counsel asserts that the beneficiary spends no time 
performing traditional farm work but, instead, is engaged solely in managing the operation through others. 
Finally, counsel summarizes his arguments by asserting that the beneficiary manages the foreign entity by 
supervising the work of others and by managing an essential function of the organization, and that the 
beneficiary qualifies as an executive of the foreign entity. In support of the appeal, counsel submits materials 
describing the complex nature of the business and an excerpt from the Department of Labor's Occupational 
Outlook Handbook describing farm, ranch, and agricultural managers.' 
Upon review, 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. 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 petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. As explained above, a petitioner 
1 
Counsel also included in his brief reproduced excerpts from the beneficiary's personal calendar. However, 
counsel did not provide a copy of the beneficiary's calendar or any other documentary evidence related to this 
diary or log. The unsupported assertions of counsel do not constitute evidence. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. 
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). 
LIN 05 102 51418 
Page 11 
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are 
managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial 
sections of the two statutory definitions. 
The petitioner has failed to prove that the beneficiary acted in a "managerial" capacity. In support of its 
application, the petitioner has 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 that 
the beneficiary's duties include developing systems, managing farm building maintenance, and overseeing 
financial performance. The petitioner did not, however, define these terms, explain exactly how the 
beneficiary will perform these duties, or define how much time the beneficiary devotes to each of the duties 
listed. While counsel to the petitioner repeatedly asserts that the beneficiary "spends 0% of his time 
performing actual 'farming' duties," it is obvious that there are non-managerial, clerical duties associated with 
a business of the scope and magnitude described by the petitioner in addition to millung cows and planting 
crops. While the record may indicate that many of the traditional farm duties are performed by others, the 
evidence submitted fails to establish who, other than the beneficiary, is performing the additional functions 
incidental to operating a business. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). 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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, the petitioner has failed to establish that the beneficiary supervised or controlled the work of other 
supervisory, professional, or managerial employees. The petitioner has failed to provide job descriptions or 
an organizational chart for the beneficiary's subordinates in New Zealand. While the petitioner provided a list 
of six other active employees of the foreign entity (one assistant manager and five dairy workers), it is unclear 
whether the "assistant manager" actually supervises the dairy workers. Also, given the lack of a job 
description, it is impossible to determine whether the assistant manager is primarily engaged in providing 
supervisory or managerial services or whether the beneficiary functionally supervises the dairy workers 
directly. Given the beneficiary's vague job description coupled with the lack of information regarding the 
duties of the New Zealand subordinate employees, the beneficiary would appear to be a first-line supervisor 
and/or the provider of actual services. 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 Intl., 19 I&N Dec. 593, 
604 (Comm. 1988). 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. 
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology Intl., 19 I&N Dec. at 604.~ 
2 
While the petitioner does not assert that the beneficiary is supervising professional employees, the record is 
nevertheless devoid of any evidence that the "assistant manager" or the "dairy workers" are professionals. 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. 
LIN 05 102 51418 
Page 12 
Finally, the petitioner has not proven that the beneficiary managed an essential function of the organization. 
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. 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(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that 
the beneficiary manages the function rather than performs the duties related to the function. An employee 
who primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995) (citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this 
matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
The petitioner's vague job description fails to realistically define the beneficiary's duties in a way that would 
allow one to ascertain which functions are managerial and which functions would be non-managerial. The 
petitioner lists the beneficiary's duties as managerial, but it fails to properly quantify or define the time the 
beneficiary spends on them. This failure of documentation is important because several of the beneficiary's 
daily tasks, such as drafting employee contracts, preparing budgets and reports, and securing insurance 
policies, might not fall directly under traditional managerial duties as defined in the statute. Absent a clear 
and credible breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine 
what proportion of his duties would be managerial, nor can it deduce whether the beneficiary is primarily 
performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972). 
Therefore, the record does not prove that the beneficiary was acting in a managerial capacity. 
Section 101(a)(32) of the Act, 8 U.S.C. $ 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely slull, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degrees held by the subordinate employees. 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 
established that a bachelor's degree is necessary for any of the positions listed for the foreign entity. 
LIN 05 102 51418 
Page 13 
Similarly, the petitioner has failed to prove that the beneficiary acted in an "executive" capacity. 
 The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision malung" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. As indicated above, the petitioner has failed to prove that the 
beneficiary, who was apparently managing between six and eight people working on a dairy farm, acted 
primarily in an executive capacity. 
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or 
executive capacity abroad as required by 8 C.F.R. 3 2 14.2(1)(3)(v)(B) and for this reason the petition may not 
be approved. 
The third issue is whether the petitioner failed to prove that the United States operation, within one year of the 
approval of the petitioner, will support an executive or managerial position. 
As explained above, the regulation at 8 C.F.R. fj 214.2(1)(3)(~) states, in pertinent part, that if a 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, the petitioner shall submit evidence that: 
(C) The intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial 
position as defined in paragraphs (l)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 The proposed nature of the office describing the 
scope of the entity, its organizational structure, and 
its financial goals; 
(2) 
 The size of the United States investment and the 
financial ability of the foreign entity to remunerate 
the beneficiary and to commence doing business in 
the United States; and 
(3) 
 The organizational structure of the foreign entity. 
LIN 05 102 51418 
Page 14 
Again, as a threshold issue, the petitioner has not clearly established that it will even employ the beneficiary. 
the letter dated March 4, 2005 from the petitioner's Missouri attorneys, Armstrong 
explains that "[the beneficiary] will also be an employee of the [petitioner] and/or [Focal 
(emphasis added). Since the petitioner does not how if it will even employ the petitioner and 
may apparently choose to permit a different employer to employ the beneficiary, the petitioner has not proven 
that the intended United States operation, within one year of the approval of the petition, will support an 
executive or managerial position. For this reason alone, the petition will not be approved. 
Even assuming 
 was the petitioner and the employer in this matter, the petitioner has not 
established that the intended United States operation, within one year of the approval of the petition, will 
support an executive or managerial position. 
dated February 
purchased 1,78 
establishing a dairy farm in 
17, 2005 appended to the initial petition, the petitioner explained that Focal 
7 acres in Missouri for $2,323,100.00 on December 3, 2004 for the purpose of 
the United States. The beneficiary will be transferred to the United States to 
establish the operation of the dairy farm and, ultimately, would become responsible for the management and 
operation of both this initial farm and all additional farms as they are acquired. His duties in Missouri would 
be similar to his duties in New Zealand with the foreign entity. 
r indicates in both the letter and in an attached business plan that the petitioner and/or Focal 
intend to acquire one additional farm during its first year of operation, that both farms will host 
collectively approximately 2,000 to 3,000 cows by the end of first year, and that the operation will need one 
employee for every 165 cows. Therefore, by the end of its first year in operation, the petitioner predicts that it 
will need between 12 and 20 employees to work on the farms. 
While counsel to the petitioner asserts in its brief that the business plan calls for the hiring of a "specialized 
manager" who will be subordinate to the beneficiary and who will manage the farm workers hired by the 
United States operation, the business plan is not consistent with this assertion. On page 5, the business plan 
calls for the hiring of "one senior New Zealand trained manager" to oversee and train Americans for each 
farm. It is unclear whether this role will be filled by the beneficiary, by fellow investo-(who is 
identified as the "conversion consultant" in the business plan), or by an unidentified third person. Regardless, 
the business plan does not explain exactly who, after one year of predicted growth, will manage the 12 to 20 
farm workers or provide sufficient details to establish that he or she will be a supervisory, professional, or 
managerial employee. 
Therefore, in view of the initial investment made in the United States operation, the question is whether the 
above plan for growth is likely to support an executive or managerial position within one year of petition 
approval. 
Upon review, the petitioner's assertions are not persuasive, and it is concluded that the proposed plan will not 
likely support an executive of managerial position within one year. 
LIN 05 102 51418 
Page 15 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 8 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away Erom the developmental stage to full operations where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
In this case, the petitioner has failed to establish that, after one year, the business will be able to support a 
managerial position. While the business plan calls for the hiring of between 12 and 20 farm laborers, the 
staffing of the United States operation appears similar to the model used by the foreign entity. The duties of 
these employees and of the "specialized manager" are not specifically defined in the business plan. 
Therefore, the record does not establish that the petitioner will require an employee to manage one or more 
managers, supervisors, or professionals, or an essential function of the operation. 
Furthermore, the petitioner has not proven that the United States operation will support an executive position 
within one year. As explained in the business lan a New Zealand management company associated with 
several of the limited partners of 
dh 
will assist in the management and administration of the 
United States operation and that it is envisage t at, eventually, the United States operation will become "self- 
managing." However, the business plan does not explain when, in the future, the petitioner expects to begin 
malung its own management and administrative decisions. Therefore, the record does not establish that the 
United States entity will support an executive position within one year of petition approval since the 
management of the organization will be directed by the management company. 
Accordingly, the petitioner has not established that the United States operation, within one year of the 
approval of the petitioner, will support an executive or managerial position, and for this reason the petition 
will not be approved. 
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. 8 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.