dismissed L-1A Case: Dental Products

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File: EAC 06 017 53349 Office: VERMONT SERVICE CENTER Date: FEB 0 12007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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.
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11iRobert P. W~emann, Chief
./ Administrative Appeals Office
www.uscis.gov
EAC 06 017 53349
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 AAO will dismiss the
appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-l A nonimmigrant
intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act),
8 U.S.C. § 1101(a)(l5)(L). The petitioner, a Maine limited liability company, states that it is engaged in the
provision of specialty dental products and oral healthcare products. The petitioner claims to be an affiliate of
Oakmead Dental Care, located in the United Kingdom . The petitioner seeks to employ the beneficiary as its
president/managing director for a period of one year to open a new office in the United States.
The director denied the petition , concluding that the petitioner failed to demonstrate that the intended United
States operation , within one year of the approval of the petition, will support an executive or managerial
position.
On appeal , counsel for the petitioner asserts that the petitioner submitted sufficient evidence to establish that
the beneficiary will be employed in a managerial or executive capacity within one year. Counsel contends
that the director misinterpreted the regulations governing the establishment of a new office , and substituted
her own business judgment for that of the petitioner in finding the U.S. company's business plan deficient.
Counsel submits a brief and re-submits documentation previously submitted with the original petition in
support of the appeal.
To establish eligibility under section 101(a)(l5)(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 (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 .
EAC 06017 53349
Page 3
(iv) Evidence that the alien's prior year of employment abroad was in a position that
was managerial, executive or involved specialized lrnowledge and that the alien's
prior education, training, and employment qualifies him/her 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 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 issue in this proceeding is whether the petitioner has demonstrated that the intended U.S. operation,
within one year of the approval of the petition, will support the beneficiary's employment in an executive
or managerial position.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides:
The term "managerial capacity" means an assignment within an organization in which the employee
primarily-
(i) manages the organization, or a department, subdivision, function, or component of the
organization;
EAC 06017 53349
Page 4
(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 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), provides:
The term "executive capacity" means an assignment within an organization in which the employee
primarily-
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the
board of directors, or stockholders of the organization.
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. § 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.
In addition, if a petition indicates that a beneficiary is coming to the United States to open a "new office,"
it must show that it is ready to commence doing business immediately upon approval. At the time of
filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired
EAC 06017 53349
Page 5
sufficient physical premises to commence business, that it has the financial ability to commence doing
business in the United States, and that it will support the beneficiary in a managerial or executive position
within one year of approval. See generally, 8 C.F.R. § 214.2(l)(3)(v). If approved, the beneficiary is
granted a one-year period of stay to open the "new office." 8 C.F.R. § 214.2(l)(7)(i)(A)(3). At the end of
the one-year period, when the petitioner seeks an extension of the "new office" petition, the regulation at
8 C.F.R. § 214.2(l)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing business "for
the previous year" through the regular, systematic, and continuous provision of goods or services. See 8
C.F.R. § 214.2(l)(1)(ii)(H) (defining the term "doing business"). The mere presence of an agent or office
of the qualifying organization will not suffice. Id.
The nonimmigrant petition was filed on October 24,2005. The petitioner indicated on the Form 1-129 that
the beneficiary will be employed in the position of president/managing director. In a letter dated October 17,
2005, counsel for the petitioner described the beneficiary's proposed duties in the United States as the
following:
[The beneficiary] intends to work full-time in the United States as the President and
Managing Director of [the U.S. company]. In this capacity he will be responsible for
negotiating contracts with manufacturers/suppliers of the oral healthcare and dental care
products to be marketed. He will conduct market research to develop a market penetration
and growth plan on behalf of the new operation. He will be engaged in the daily
administration of the operation including liaising with professionals, networking with the
local and regional major dental practices to promote his business, and generally getting the
company off the ground in the first 12 months of operation.
[The beneficiary] intends to hire at least two (2) full-time U.S. employees within the first
year of operation to fill the important roles of Office Administrator and Regional Sales
Representative.
The petitioner stated that the U.S. company would be engaged in the supply of dental products and oral
healthcare products manufactured in the United States to dental practices in the United Kingdom and in the
United States.
On October 27, 2005, the director determined that the petitioner did not submit sufficient evidence to process
the petition, and therefore requested that the petitioner submit additional evidence in support of its petition.
Specifically, the director requested: (1) a complete position description for all of the beneficiary's proposed
subordinates in the United States; (2) a comprehensive description of the beneficiary's proposed duties, and
an explanation if they are managerial or executive in nature; (3) evidence to show how the new company in
the United States will grow to be of sufficient size to support a managerial or executive position; and, (4) a
copy of the business plan for commencing the start-up company in the United States, giving specific dates for
each proposed action, for three years starting with the date the company began operations in the United
States. The director noted that the business plan should document staffing, projections and goals.
In response, the petitioner submitted a letter dated November 28, 2005, written by the beneficiary. The
beneficiary indicated that his proposed "executive-level duties" in the U.S. entity would be the following:
EAC 06 017 53349
Page 6
• Product design and development decision-making including research and
development of technology to support parent claim(s). Reference the company's
unique product brand known as "DNA Toothbrush;"
• Maintain responsibility for overall financial management of the company. Manage
and direct Financial Office to be hired within 12 months.
• Develop and direct overall corporate marketing plan, budget and forecasting.
Manage and direct full-time Marketing Manager to be hired within six months of
business start-up;
• Liaise with outside professionals in accounting, legal and medical fields to ensure
proper regulatory compliance for business, licensing, tax and other federal and state
compliance issues;
• Negotiate product and supply contracts with manufacturers and customers, licensing
agreements with manufacturers, possible joint venture business deals with
manufacturer(s);
• Develop the overall direction and business plan for the three (3) separate (and
branded) spheres of the petitioner's business including Vermont Oral Healthcare,
Saratoga Safety Cap, and Saratoga Sandbag-Lock;
It is noted that the beneficiary is the senior-most individual in the organization. He is
the directing mind of the business, reports to no other person in the corporate hierarchy,
and is responsible for the total direction, development and control of the entity.
It must also be noted that the beneficiary's micro-level activities in sales and marketing
will soon be replaced through the hiring of a Marketing Manager and subordinate sales
and marketing associates as detailed in the position description attachments. Various
micro-level financial duties (daily bookkeeping, receivables collection, basic banking)
will also be supplanted through the hiring of a Financial Officer and Personal Assistant
(both targeted for Year 1 of the business).
In addition, the petitioner submitted a table of the proposed positions for the u.s. company. The table
indicated that the United States company plans to hire a part-time personal assistant in March 2006, a
marketing manager in Summer 2006, and a part-time financial officer in December 2006. The table also
indicated three additional positions that the U.S. company plans to employ in 2007, and provided brief
descriptions for all proposed employees. The table also indicated a "milestone that triggers hiring" of the
proposed positions. For example, the marketing manager will only be hired when "successful trials of
Sandbag Lock in Washington or successful trial and order of safety cap product in UK or decision by
Colgate to license product." It appears that the proposed positions, with the exception of the part-time
personal assistant, will only be hired if the U.S. company achieves a certain goal.
The petitioner also submitted a business plan for the United States company. The business plan explains
that the U.s. entity will design, produce and sell innovative products. The business plan goes on to
explain three products the petitioner wishes to produce and sell in the United States. The products are a
toothbrush, a safety cap used to secure railway tracks and a sandbag-lock used for defense, environmental
EAC 06 017 53349
Page 7
disasters or construction. It appears that Dental Direct pIc, doing business as Vermont Oral Healthcare,
and Saratoga Technologies Ltd own the products. The business plan indicated that Saratoga
Technologies Ltd., a British company, "owns the innovation, commercial and patent rights" for the safety
. cap and sandbag-lock products. The business plan indicates that the petitioning company owns a 63
percent interest in Saratoga Technologies Ltd.
The petitioner's business plan shows that the company anticipates sales of its toothbrush to begin during
the third quarter of 2006. According to the business plan , the company anticipates achieving United
Kingdom accreditation for the other two products by the summer of 2006, after which the U.S. company
will sell the products , under license , to U.S. customers.
The director denied the petition on January 18 , 2006 on the ground that insufficient evidence was
submitted to demonstrate that the beneficiary would be employed in a primarily executive or managerial
capacity by the U.S. company within one year of commencing operations. The director noted that it
appeared that "the United States entity will fail to grow to a sufficient size to warrant the granting of the
proposed petition." In addition , the director noted that the U.S . entity plans to hire "too few employees"
who would relieve the beneficiary from performing non-qualifying duties and he will not hold a position
of managerial or executive capacity. In addition , the director stated that the "Service questions the
petitioner's proposed business venture since a good portion of the asserted business to be conducted
related to marketing sandbag technology since this venture is vastly different from the petitioner's
business abroad."
Finally, the director determined that the submitted business plan "lacks sufficient detail" and failed to
establish that the petitioner "has a viable plan through which to plot a reasonable course of action in the
present United States economy." The director observed that the company would not have sales or a
support staff to support the beneficiary's position.
On appeal , counsel for the petitioner asserts that the evidence presented clearly established that the
beneficiary would be working at an executive level for the petitioner. Counsel also states that the
petitioner submitted a business plan that indicated that the beneficiary would supervise two professional
positions , a marketing manager and a financial officer, within one year of operations. Counsel asserts that
the director dismissed the evidence submitted and contends that the director substituted "his or her own
personal business judgment, or lack thereof, for that of the petitioner and has concluded without adequate
foundation or reasoning that the petitioner's detailed 28 page business plan is faulty, and will not work."
Counsel asserts that the director used his or her own subjective business judgment and wrongfully raised
the standards for new office L-1 petitions in this decision .
Further, counsel contends that the director placed undue emphasis on the anticipated size of the
petitioner 's staffing levels, without taking into consideration the reasonable needs of the company.
Counsel cites Matter of Michael Hertz Assoc., 19 I &N Dec. 558 (Comm. 1998), and asserts that this
case supports the petitioner's position that the beneficiary is in fact employed by the U.S. company in a
primarily managerial and executive capacity.
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not
EAC 06 017 53349
Page 8
established that the beneficiary would be employed in a managerial or executive capacity.
Although the appeal will be dismissed , the AAO concurs with counsel that the director based his decision,
in part , on an improper standard . The director should not hold a petitioner to her undefined and
unsupported view of what constitutes a "viable plan through which to plot a reasonable course of action in
the present United States economy" or base her decision on the fact that the proposed business operations
are "highly questionable" and thus the company will not be sufficiently staffed within one year to warrant
approval of the petition. The director should instead focus on applying the statute and regulations to the
facts presented by the record of proceeding. When denying a petition , a director has an affirmative duty
to explain the specific reasons for the denial ; this duty includes informing a petitioner why the evidence
failed to satisfy its burden of proof pursuant to section 291 of the Act , 8 U.S.C. § 1361. See 8 C.F.R. §
103.3(a)(1)(i). In this case , the director failed to articulate his basis for finding a petitioner 's business
plan or proposed staffing levels to be unreasonable. As the AAO 's review is conducted on a de novo
basis , the AAO will herein address the petitioner's evidence and eligibility. See Dor v. INS, 891 F.2d
997, 10002 n . 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis).
As noted about, counsel cites Matter of Michael Hertz Assoc., 19 I & N Dec. 558 (Comm. 1998), in
which the United States District Court found that a petitioner for an H-1B nonimmigrant beneficiary
should be approved and "consideration of a claim to such eligibility first focuses on the tasks , demands,
duties, and actual requirements of the position in question." Id. at 560. It appears that counsel is citing
this decision as support to the petitioner's proposition that the duties of the position held by the
beneficiary at the U.S. company rise to the level of executive or managerial capacity. As discussed in
more detail below , the petitioner submitted the beneficiary's proposed job duties that contain several non­
qualifying duties. In addition , as discussed below, it appears that the U.S. company cannot commence
business operations immediately upon approval and expand to a point which it would require the
beneficiary 's services in a primarily managerial or executive capacity. Counsel's reference to Matter of
Michael Hertz Assoc. is 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(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 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) .
Based on the current record , the AAO is unable to determine whether the claimed managerial duties
constitute the majority of the beneficiary's duties , or whether the beneficiary will primarily perform non­
managerial , administrative , or operational duties by the end of the petitioner's first-year of operations.
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
EAC 06 017 53349
Page 9
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or
executive duties); see also Matter ofChurch Scientology Intn 'I., 19 I&N Dec. 593, 604 (Comm. 1988).
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states
that the beneficiary will be responsible for the "daily administration of the operation including liaising with
professionals, networking with the local and regional major dental practices to promote his business, and
generally getting the company off the ground in the first 12 months of operation"; "maintain responsibility for
overall financial management of the company"; "develop and direct overall corporate marketing plan, budget
and forecasting"; and "develop the overall direction and business plan for the three (3) separate (and branded)
spheres of the petitioner's business including Vermont Oral Healthcare, Saratoga Safety Cap, and Saratoga
Sandbag-Lock." 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. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 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 will be responsible
for "negotiating contracts with manufacturers/suppliers of the oral healthcare and dental care products to be
marketed"; "conduct market research to develop a market penetration and growth plan on behalf of the new
operation"; "product design and development decision-making including research and development of
technology to support parent claim(s)"; "develop and direct overall corporate marketing plan, budget and
forecasting"; and "negotiate product and supply contracts with manufacturers and customers, licensing
agreements with manufacturers, possible joint venture business deals with manufacturer(s)." It appears that
some portion of the beneficiary's time will be devoted to non-executive duties associated with developing
and marketing the services and developing the products of the business rather then directing such
activities through subordinate employees. Based on the current record, the AAO is unable to determine
whether the claimed managerial duties constitute the majority of the beneficiary's duties, or whether the
beneficiary primarily performs non-managerial administrative or operational duties. The petitioner's
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is
managerial in nature, and what proportion is actually non-managerial. See Republic of Transkei v. INS,
923 F.2d 175, 177 (D.C. Cir. 1991).
In addition, although the beneficiary is not required to supervise personnel, if it is claimed that he is
employed in a managerial capacity based on his supervisory duties, the petitioner must establish that the
subordinate employees are supervisory, professional, or managerial. See § 101(a)(44)(A)(ii) of the Act.
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 U.S.C. § 1101(a)(32), 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"
EAC 06017 53349
Page 10
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 AAO 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, for example, to perform the administrative functions of the part-time personal assistant
and the marketing functions of the marketing manager, who will be the beneficiary's only subordinate
employee within one year of operations. Although the one of the proposed employees has been assigned
a managerial job title, the petitioner has not submitted sufficient evidence to substantiate the claim that
this employee will in fact be employed in a managerial or supervisory role.
In addition, in a letter submitted by the petitioner's counsel dated October 17, 2005, counsel stated that
the beneficiary intends to hire two full-time employees: one office administrator and one regional sales
representatives. However, in response to the director's request for evidence, the petitioner indicated that
the U.S. company will employ a personal assistant and a marketing manager within the first year of
operations. The petitioner did not explain why the proposed positions changed from the initial filing to
the response to the director's request for evidence. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used as a
factor in determining whether an individual is acting in a managerial or executive capacity, CIS must take
into account the reasonable needs of the organization, in light of the overall purpose and stage of
development of the organization. However, it is appropriate for CIS to consider the size of the petitioning
company in conjunction with other relevant factors, such as a company's small personnel size, the absence
of employees who would perform the non-managerial or non-executive operations of the company, or a
"shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics
Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant
when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id.
In the instant matter, as discussed above, the petitioner submits two separate and inconsistent hiring plans
for the first year of operations. As indicated, the petitioner initially stated that the U.S. company will
employ an office administrator and a regional sales representative, however, the petitioner subsequently
submitted a list of proposed positions indicating that the petitioner will employ a personal assistant and a
marketing manager. In addition, the petitioner did not indicate a firm date of hiring the employees since
the hiring of most of the proposed positions depend on a "triggering" event to occur prior to hiring
employees to fill the the proposed positions. Therefore, the petitioner does not present sufficient evidence
to establish that the U.S. company can employ the beneficiary in a predominantly managerial or executive
position after the initial year of operations.
EAC 06 017 53349
Page 11
As it appears the beneficiary will supervise, at most, one part-time personal assistant and one marketing
manager, it is reasonable to assume, and has not been proven otherwise, that the beneficiary will be
directly performing sales, client relations, negotiations, product development, and financial development
at the end of the first year of operations. In addition, the petitioner does not plan to hire a finance
manager to oversee payroll, budget and bookkeeping, thus it appears that the beneficiary will be directly
responsible for financial tasks. The record does not evidence a proposed subordinate staff who would
relieve the beneficiary from performing non-qualifying duties associated with the day-to-day operations
associated with the launch of three separate product lines. An employee who "primarily" performs the
tasks necessary to produce a product or to provide services is not considered to be "primarily" employed
in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church
Scientology Intn'l., 19 I&N Dec. at 604. Accordingly, the director reasonably concluded that the
beneficiary will be performing the day-to-day operations and directly be providing the services of the
business rather than directing such activities through subordinate employees.
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, 8 U.S.C. §
1101(a)(44)(B). 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 managerial 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-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 making" and receive only" general
supervision or direction from higher level executives, the board of directors, or stockholders of the
organization." Id. As discussed above, the beneficiary will supervise one personal assistant and one
marketing manager, and the petitioner has not demonstrated that the beneficiary will be primarily focused
on the broad goals and policies of the company within one year. Based on the foregoing discussion, the
petitioner has not established that the beneficiary will be employed in a primarily executive capacity.
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
EAC 06 017 53349
Page 12
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 28-page business plan for the U.S. entity. The business plan indicated that the
goal of the U.S. entity is to produce, market and sell three distinct patented products. However, it appears
that separate companies, Vermont Oral Healthcare and Saratoga Technologies Ltd, own all three
products. Although the petitioner indicated that the petitioner owns 630/0 of Saratoga Technologies Ltd.,
the petitioner has not submitted any documentation to evidence that the U.S. entity has obtained the right
to produce, market and sell these products. The petitioner has not submitted agreements or contracts to
evidence that the two companies permit the U.S. company to produce, market and sell the patented
products. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N
Dec. at 591-92.
Furthermore, the petitioner indicated in the business plan that one of the products, the Safety Cap, is being
tested in the United Kingdom and noted that it anticipates that the product may achieve the required
accreditation from the United Kingdom authorities by the summer of 2006. Therefore, it appears that this
product is still in the testing phase and it does not appear that this product can be manufactured and sold
at this time. Similarly, the petitioner's projections indicate that the company does not expect sales of its
toothbrush to commence prior to the third quarter of 2006.
The AAO acknowledges the petitioner's concern that the director based his or her decision on the fact that
the proposed business plan will fail since the U.S. entity will enter in a business venture that is vastly
different from the petitioner's business' abroad. While the AAO acknowledges those remarks are
inappropriate, in reviewing the business plan, it appears that the petitioner has failed to identify the scope
of the U.S. company and the feasibility of achieving the goals discussed in the business plan. 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
While the record shows that the beneficiary has the knowledge and experience to launch all three
products, the fact that none of the proposed products is ready for full-scale production and marketing
prohibits the AAO from finding that the company could commence business operations immediately upon
approval and expand to a point which it would require the beneficiary's services in a primarily managerial
or executive capacity.
EAC 06 017 53349
Page 13
Upon review , 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 . For this
additional reason, the appeal will be dismissed.
Beyond the decision of the director, the evidence of the record does not establish that a qualifying
relationship exists between the foreign company and the United States entity. 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 is 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).
The petitioner claims to be an affiliate of the beneficiary's foreign employer, Oakmead Dental Care , LLC.
As stated in a letter dated October 17, 2005, counsel for the petitioner asserts that the foreign company is
jointly owned, 50% each, by the beneficiary and his business partner, Counsel further states
that the beneficiary and _ also jointly own the U.S. entity. The petitioner neither submitted
documentation to evidence the owners of the foreign company nor the U.S. company. Without
documentary evidence to support the claim , the assertions of counsel will not satisfy the petitioner's
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter ofObaigbena,
19 I&N Dec . 533, 534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
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 . at 593; see
also Matter of Siemens Medical S ystems , Inc. , 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 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.
As general evidence of a petitioner's claimed qualifying relationship , the stock certificates , the corporate
stock certificate ledger, stock certificate registry , corporate bylaws, and the minutes of relevant annual
shareholder meetings must be examined to determine the total number of shares issued, the exact number
issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control.
Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the
distribution of profit, the management and direction of the subsidiary, and any other factor affecting
actual control of the entity. See Matter ofSiemens Medical Systems , Inc., supra . Without full disclosure
of all relevant documents , CIS is unable to determine the elements of ownership and control. For this
additional reason, the appeal will be dismissed.
Beyond the decision of the director , the petitioner did not provide sufficient evidence to establish that a
sufficient financial investment has been made in the United States company , as required by 8 C.F.R. §
214.2(l)(3)(v)(2). In the business plan submitted by the petitioner , it indicates "an anticipated spend of
some $100 ,000 before a likely product order is placed within the next twelve months." As evidence of
EAC 06 017 53349
Page 14
the U.S. entity's financial stability, the petitioner submitted the foreign company's financial statements for
2004. However, the petitioner did not submit any documentation to evidence that the foreign parent
company has deposited the needed amount of capital in the U.S. entity's bank account, or documentation
such as receipts of wire transfers or copies of the U.S. company's bank account. 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. For this additional reason, the appeal will be
dismissed.
Beyond the decision of the director, the record contains insufficient evidence to establish that the
beneficiary had at least one year of full-time employment abroad in a managerial or executive capacity
with a qualifying organization within the three years preceding the filing of the instant petition. Although
the petitioner states that the beneficiary was employed by the foreign company as a principal director,
counsel for the petitioner also asserts that the beneficiary "owns a separate company in the United
Kingdom which trades as 'Dental Direct Directory Services Ltd." According to a profile of the
beneficiary included in the petitioner's business plan, "for the past two years [the beneficiary] has set up
and run a company that develops oral healthcare products." The petitioner's business plan also implies
that the beneficiary has been involved in product development activities with Saratoga Technologies Ltd.
for the past two years. Given these unexplained statements in the record it cannot be concluded that the
beneficiary was employed by the foreign company, , on a full-time basis
during the requisite time period. 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.
MatterofHo, 19 I&N Dec. 582,591-92 (BIA 1988).
While it appears that the beneficiary may have been concurrently employed by multiple related
companies in the United Kingdom, the lack of evidence regarding the beneficiary's duties with the other
companies, and the lack of documentary evidence to establish that the companies have a qualifying
relationship, prohibits a finding that the had the requisite year of full-time qualifying employment abroad.
Accordingly, the appeal will be dismissed.
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),
affd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting
that the AAO reviews appeals on a de novo basis).
The petition will be denied 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.