dismissed L-1A Case: Export Business

IC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 06 175 50831 Office: VERMONT SERVICE CENTER Date: MAR 1 0 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1101(a)(15)(L) 
IN 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. 
Administrative Appeals Office 
EAC 06 175 50831 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant 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 vice 
president 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 
1 10 1 (a)(15)(L). The petitioner, a corporation organized under the laws of the State of Texas, is allegedly an 
export business.' 
The director denied the petition concluding that the petitioner failed to establish (1) that the sufficient physical 
premises have been secured to house the new office; (2) that the beneficiary was employed abroad in a 
primarily managerial or executive capacity; or (3) that the United States operation will support an executive 
or managerial position within one year. The director also indicated that, since the beneficiary left the United 
States while the petition was pending, the concurrently filed request to change status and extend the 
beneficiary's stay is considered abandoned and may not be approved. 
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 asserts that the petitioner has secured 
sufficient physical premises to house the new office and that it has established that the beneficiary has and 
will perform qualifying duties. Counsel also argues that the beneficiary may extend her stay and change 
status to L-1 classification if the petition is approved on appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within 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. 8 214.2(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 
'~t should be noted that, according to Texas state corporate records, the petitioner's corporate status in Texas is 
not in good standing. Therefore, as the State of Texas has forfeited the petitioner's corporate privileges, the 
company can no longer be considered a legal entity in the United States. Therefore, this would call into 
question the continued eligibility of the petitioner for the benefit sought if the appeal were not being 
dismissed for the reasons set forth herein. 
EAC 06 175 5083 1 
Page 3 
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. 
(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. 5 2 14.2(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: 
(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. 
As a threshold issue, it is noted that 8 C.F.R. 5 214.1(~)(5) states that there is no appeal from the denial of an 
application for extension of stay, whether filed on a Form 1-129 or Form 1-539. Likewise, 8 C.F.R. 5 248.3(g) 
states that there is no appeal fiom the denial of a change of status request made under that chapter. 
Accordingly, the AAO will not consider these issues on appeal. Regardless, as the AAO is dismissing the 
appeal, and thus upholding the denial of the petition, for the reasons further explained herein, the requests to 
EAC 06 175 5083 1 
Page 4 
change status and to extend the beneficiary's stay were correctly, and automatically, denied for that reason and 
need not be further addressed even if the AAO had jurisdiction to consider these additional issues. 
Therefore, the first issue in this matter is whether the petitioner has established that it has secured sufficient 
physical premises to house the new office. 
Counsel vaguely described the petitioner's proposed United States operation in a letter dated May 10, 2006 as 
purchasing goods in the United States for export to "the parent company" in Peru. As evidence that the 
petitioner secured sufficient physical premises to house this operation, the petitioner submitted a copy of an 
undated document titled "Commercial Lease" purportedly representing the petitioner's lease o-~ 
, Houston, Texas, from "Hispanic Equity Builder." While the term of the lease is from April 
1, 2006 until March 3 1, 2007, the lease fails to identify the monthly rent. Furthermore, the lease fails to 
specifically describe the dimensions, access, and nature of suite 303. 
On September 20, 2006, the director requested additional evidence. The director requested, inter alia, 
evidence establishing that the United States operation will grow to be of a sufficient size to support a 
managerial or executive position, a description of the United States operation's proposed staff, and 
photographs of the interior and exterior of its physical premises. 
In response, counsel submitted a letter dated November 28, 2006 in which he further describes the proposed 
United States operation as follows: 
The Petitioner is responsible for locating product sources and developing trade partners 
within the United States. In this regard, the Petitioner will locate wholesale sources of 
"closeout items," and negotiate both short and long term agreements to create continuous 
sources of "new" and "hot" items that will attract and maintain customers in the Peruvian 
market. 
The petitioner also submitted a document described as a "business plan." 
 The plan indicates that the 
petitioner intends "to operate the business with one full-time employee and one part-time employee," will 
purchase goods for export to Peru, and will develop "a warehouse and logistics system" for the goods 
purchased. The plan further describes its proposed inventory and supply system as follows: 
Inventory will be controlled by indexing the products as they are brought in and as they are 
sold. [The petitioner's] tracking system will tell the management what merchandise is in 
stock, what is on order, when it will arrive, and what was sold. With such a system, [the 
petitioner] can plan purchases more intelligently and quickly recognize the fast moving items 
we need to reorder and the slow moving items we should mark down or specially promote. 
Inventory will turn approximately 6 times a year. We will keep 25 percent of our initial 
inventory or $1500 worth of goods on hand at all times. For inventory valuation we will use 
the Last In, First Out (LIFO) method. We will sell the recently purchased inventory first. 
This method will help us pay less in taxes. We have established a list of possible suppliers 
and requested quotes, prices, and available discounts. We also will ask for customer 
EAC 06 175 5083 I 
Page 5 
references. The goods to be imported into the [sic] Peru and sold fi-om the wholesale location 
will include clothing, sporting goods, furniture, auto parts, kitchenware and electronics as 
well as computers. 
The petitioner also submitted photographs purportedly of the United States operation. Counsel indicates in 
his November 28, 2006 letter that "[plhotographs of the offices secured for the new company are provided." 
The photographs show the exterior of a large, multi-floor office building. The photographs also show the 
interior of an office which, due to the characteristics of the window and the wall configuration, do not appear 
be inside the office building portrayed in the exterior photographs. Finally, the petitioner submitted 
photographs of a building described as "warehouse," vehicles described as "delivery trucks," and goods 
described as "merchandise of warehouse." However, these photographs clearly depict a warehouse and 
delivery trucks associated with a business called "Erika's Bargain Sales." 
On March 16, 2007, the director denied the petition. The director concluded, inter alia, that the petitioner 
failed to establish that it has secured sufficient physical premises to house the new office. Specifically, the 
director determined that the record does not contain evidence that the petitioner has secured space suitable for 
the purchase and storage of goods. The director also noted that the photographs of the petitioner's office do 
not appear to be inside the building pictured in the exterior photos and that the photographs of the warehouse 
and trucks appear to relate to an unaffiliated business. 
On appeal, counsel argues the following in an attachment to the Form I-290B: 
The Petitioner submitted photographs of its leased office space, a commercial lease, and 
pictures of its primary supplier's warehouse and trucks. The purpose of the pictures of the 
supplier's premises and shipping capabilities was to illustrate the nature of business, i.e. to 
make arrangements with suppliers who are capable of providing sufficient goods and 
transportation to supply the foreign company's needs. There was never any suggestion or 
implication that the warehouse and the trucks were part of the US business. Moreover, 
because of the arrangements with its suppliers, the Petitioner did not need a separate 
warehouse. As stated, the goods are shipped directly fi-om the supplier to the foreign 
company. 
In addition, the office suggests that the interior and exterior pictures of the Petitioner's office 
were not taken at the same location, and that the pictures of the interior of the office were 
taken in a residence rather than a commercial building. The pictures of the Petitioner's office 
were sent in response to an RFE. The officer basis [sic] this opinion on alleged architectural 
and interior design inconsistencies. If that concern existed and formed a basis of denial, the 
officer should have sent an additional request for evidence to clarify this issue. The fact that 
a person chooses to set up his or her office in a manner that does not follow what the 
adjudicating officer considers the "norm" is not a failure to provide sufficient proof that the 
office exists. The Petitioner sent sufficient evidence that the US Company has sufficient 
premises for the proposed business activity. 
EAC 06 175 5083 1 
Page 6 
Upon review, counsel's assertions are not persuasive. 
In this matter, the petitioner has failed to establish that it has secured sufficient physical premises to house the 
proposed United States operation. As noted above, the petitioner indicates that it plans to purchase 
merchandise in the United States, maintain an inventory of goods "at all times," index merchandise as it is 
"brought in," and work with multiple suppliers. Based on the petitioner's description of its proposed 
enterprise, the petitioner would need one or more physical locations which could accommodate both its 
administrative functions and its collection, storage, and processing of merchandise. However, as correctly 
noted by the director, the record is devoid of evidence establishing that the petitioner has secured storage 
space to support the growth of its 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). It has not been established that the 1,500 square foot 
office suite allegedly leased by the petitioner could accommodate the proposed United States operation as 
described in the business plan. Based on the record, it appears that the office at 9950 Westpark Drive would 
not permit the enterprise to 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 within one year. 
In addition, counsel's assertions on appeal that the petitioner does "not need a separate warehouse" and that 
"goods are shipped directly from the supplier to the foreign company" are not persuasive because they are 
inconsistent with the petitioner's description of its proposed business in the underlying petition. As noted 
above, the petitioner claims that it will purchase merchandise in the United States, maintain an inventory, and 
sell to buyers in Peru. Counsel offers no factual or evidentiary basis for his argument. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503 (BIA 1980). 
Furthermore, as correctly noted by the director, the photographs submitted in response to the director's 
Request for Evidence are not persuasive in establishing that the petitioner has secured sufficient physical 
premises to house the new office. The interior office space depicted in the photographs does not appear to be 
located inside of the office building depicted in the exterior photographs. The windows, wall and ceiling 
configuration, and interior doors depicted in the interior photographs are not consistent with the office 
building's features as depicted in the exterior photographs. Regardless, as further discussed above, the interior 
office space depicted in the photographs does not appear sufficient to house the proposed United States 
operation, which will involve purchasing and storing inventory. Moreover, as admitted by counsel on appeal, 
the warehouse and vehicles depicted in the photographs labeled "warehouse" and "delivery trucks" are not 
actually associated with the petitioner's business. Accordingly, the photographs are not persuasive in 
establishing that the petitioner has secured sufficient physical premises to house the new office. 
Finally, counsel's assertion on appeal that the director was obligated to request additional evidence regarding 
"architectural and interior design inconsistencies" in the photographs prior to denying the petition is without 
merit. First, the purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). If there is evidence of 
EAC 06 175 5083 1 
Page 7 
ineligibility, a petition may be denied on that basis. Id. In this matter, the director correctly determined that 
the interior photographs were inconsistent with the exterior photographs and, thus, constitutes evidence of 
ineligibility. Therefore, the director was permitted to deny the petition on this basis without eliciting further 
evidence. Second, even if the director had committed a procedural error by failing to solicit further evidence, 
it is not clear what remedy would be appropriate beyond the appeal process itself. In this matter, while 
counsel has argued that the director should have requested evidence clarifying the inconsistency between the 
two sets of photographs, counsel failed to supplement the record on appeal with evidence addressing this 
inconsistency. Moreover, instead of providing an explanation for the inconsistency between the two sets of 
photographs and the possible attempt to mislead the director on a material fact, counsel appears to indicate 
that the director erred in not accepting the photographs as evidence that an office actually exists. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 
1988). The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 
8 C.F.R. 8 103.2(b)(2)(i). It would serve no useful purpose to remand the case simply to afford the petitioner 
the opportunity to supplement the record with new evidence when it has already had that opportunity. 
Accordingly, the petitioner has failed to establish that it has secured sufficient physical premises to house the 
new office. 
The second issue in the present matter is whether the petitioner has established that the beneficiary was 
employed in a primarily managerial or executive capacity with the foreign entity for one year within the 
preceding three years. 8 C.F.R. 8 214.2(1)(3)(v)(B). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 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 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
EAC 06 175 5083 1 
Page 8 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1 101(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 in the initial petition whether the beneficiary will primarily perform 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. Although counsel specifically asserts that the beneficiary has been employed in an "executive" 
capacity, the petitioner does not clearly restnct the beneficiary to this classification. Given the lack of clarity, 
the AAO will assume the petitioner is asserting that the beneficiary was employed in either a managerial or an 
executive capacity and will consider both classifications. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989) (noting that the AAO reviews appeals on a de novo basis). 
Counsel described the beneficiary's foreign duties as "purchasing manager" in a letter dated May 10, 2006 as 
"traveling to the United States often to search for merchandise and goods that can be traded for in Peru." The 
foreign entity also described the duties of the beneficiary in a letter dated May 10, 2006. While the foreign 
entity referred to the beneficiary's position in Peru as "international logistics manager," it similarly described 
the beneficiary in the letter as traveling "to the United States several times a year to act as the [bluyer of 
products and merchandise purchased in the United States." 
On September 20, 2006, the director requested additional evidence. 
 The director requested, inter alia, 
evidence that the beneficiary primarily performed qualifying duties abroad, job descriptions for all 
subordinate employees, an organizational chart, and a breakdown of the number of hours devoted to each 
employee's job duties on a weekly basis, including a breakdown for the beneficiary. 
In response, counsel submitted a letter dated November 28, 2006 in which he further describes the 
beneficiary's foreign duties as follows: 
[Alnalyzing the market trends and product demand, locating new sources of products to be 
exported to and marketed in Peru through the parent company, negotiating short and long 
term contracts with suppliers and developing trade partners in order to maximize profits, 
analyze the subsidiary's employment requirements and hire sufficient employees to meet 
company needs, insure that all legal, financial, and tax issues are fully addressed through 
EAC 06 175 5083 1 
Page 9 
outside consultants, analyzing United States promotions and marketing strategies for possible 
modification and implementation in the Peruvian markets. 
Counsel also noted that "[tlhe beneficiary was not responsible for the management of the employees" and that 
she "was managing a major function of the company, i.e. making purchasing and strategic marketing 
decisions." The petitioner submitted an organizational chart which also indicates that the beneficiary did not 
supervise any employees abroad. 
On March 16, 2007, the director denied the petition. The director concluded, inter alia, that the petitioner 
failed to establish that the beneficiary was employed abroad in a primarily managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary was primarily employed abroad as an executive. 
Upon review, counsel's assertions are not persuasive. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. §§ 214.2(1)(3)(ii) and (iv). The petitioner's description 
of the job duties must clearly describe the duties performed by the beneficiary and indicate whether such 
duties were either in an executive or managerial capacity. Id. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
acted in a "managerial" or "executive" capacity. The duties ascribed to the beneficiary appear to be primarily 
non-qualifying administrative or operational tasks and not managerial or executive duties. The petitioner 
describes the beneficiary as primarily working as a buyer of goods in the United States for export to Peru. 
She allegedly analyzed market trends and product demand, located new sources of products, negotiated 
contracts, and developed relationships with suppliers. However, it has not been established that these duties 
were managerial or executive in nature. To the contrary, these duties appear to be non-qualifying 
administrative or operational tasks, and the record does not establish that she was relieved of the need to 
perform these tasks by a subordinate staff. As it appears that the beneficiary primarily performed these non- 
qualifying tasks, it has not been established that she was "primarily" employed as a manager or an executive. 
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 International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees, or managed an essential function of the organization. As 
indicated above, the beneficiary supervised no employees abroad. The beneficiary also did not manage an 
essential function of the foreign employer. 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 10 l(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 managed an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties performed in 
EAC 06 175 5083 1 
Page 10 
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. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary managed the function rather than performed the duties related to 
the function. In this matter, it appears more likely than not that the beneficiary performed the non-qualifying 
tasks related to the function rather than managed the function. As explained above, the duties ascribed to the 
beneficiary, e.g., buying products, analyzing trends, locating product sources, negotiating contracts, and 
developing relationships, appear to be non-qualifying tasks. As the beneficiary was not relieved from the 
need to perform these non-qualifying tasks by other workers, it has not been established that she "managed" 
an essential function. Therefore, the petitioner has not established that the beneficiary was employed 
primarily in a managerial capacity. 
Similarly, the petitioner has failed to establish 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 making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary acted primarily in an executive capacity. As explained above, it appears that the 
beneficiary primarily performed the tasks necessary to produce a product or to provide a service. Therefore, 
the petitioner has not established that the beneficiary was employed primarily in an executive capacity. 
In reviewing the relevance of the number of workers an employer has, federal courts have generally agreed 
that Citizenship and Immigration Services (CIS) "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. U.S. 
Citizenship and Immigration Services, 469 F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of 
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 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 CIS to consider the size of an organization 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). 
Accordingly, the petitioner has failed to establish that the beneficiary primarily performed managerial or 
executive duties abroad, and the petition may not be approved for that reason. 
EAC 06 175 5083 1 
Page 11 
The third issue in the present matter is whether the petitioner has established that the intended United States 
operation, within one year of the approval of the petition, will support an executive or managerial position. 
As explained above, the petitioner indicated in its "business plan" that it plans to purchase merchandise in the 
United States and export these items to Peru for resale. The plan also indicates that the petitioner intends "to 
operate the business with one full-time employee and one part-time employee" and that the beneficiary's 
duties in the United States will be "essentially identical" to her duties in Peru. See supra. Finally, the plan 
projects that the United States operation will have $37,500.00 in salary expenses during its second year in 
operation. As the petitioner avers that the beneficiary will be paid $30,000.00 per year, it appears that the 
petitioner is projecting that it will spend approximately $7,500.00 in its second year in operation on salaries 
for subordinate workers. 
On March 16, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the intended United States operation, within one year of the approval of the petition, will support a 
primarily executive or managerial position. 
On appeal, counsel asserts that the beneficiary will perform qualifying duties within one year. 
Upon review, counsel's assertions are not persuasive. 
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. fj 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 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. 
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 of Ho, 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 of Ho 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 
EAC 06 175 5083 1 
Page 12 
materials andlor the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefor. Most importantly, the business plan must be credible. 
Id. 
In this matter, the record is not persuasive in establishing that the beneficiary will primarily perform qualifying 
managerial or executive duties within one year of petition approval. The petitioner has failed to establish that the 
United States operation will succeed and rapidly expand as it moves away from the developmental stage to full 
operations, where there would be an actual need for a manager or executive who will primarily perform 
qualifying duties. The petitioner has failed to sufficiently describe both the beneficiary's and her 
subordinates' proposed duties after the petitioner's first year in operation; has failed to establish that an 
investment has been made in the United States operation; and has failed to sufficiently describe the nature, 
scope, organizational structure, and financial goals of the new office. 8 C.F.R. $ 214.2(1)(3)(v)(C). 
First, as correctly noted by the director, the petitioner has failed to establish that the beneficiary will be 
performing primarily "managerial" or "executive" duties after the petitioner's first year in operation. As 
explained above, the petitioner claims that it will "operate the business with one full-time employee and one 
part-time employee" and that the beneficiary will primarily perform the same non-qualifying tasks which 
were ascribed to her abroad. See supra. Therefore, it appears that the beneficiary will primarily perform non- 
qualifying tasks after the petitioner's first year in operation. Furthermore, the petitioner not established that its 
projected single part-time employee will relieve the beneficiary of the need to perform primarily non- 
qualifying tasks by failing to describe the duties of this projected employee. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. $ 
103.2(b)(14). As the petitioner fails to explain what tasks the beneficiary and her subordinate staff will 
perform after the petitioner's first year in operation or to explain how much time the beneficiary will devote to 
performing non-qualifying tasks, it cannot be concluded that she will be "primarily" employed as a manager 
or executive. 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 
lOl(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because it failed to establish that a sufficient investment was made in the 
enterprise. 8 C.F.R. 214.2(1)(3)(v)(C)(2). In this matter, the petitioner projects its first year expenses to be 
$72,120.00. However, the record indicates that the petitioner received a wire transfer for only $29,975.00. 
The record is devoid of evidence establishing that the petitioner has received the rest of the investment. Once 
again, 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. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year for this additional reason. 
EAC 06 175 5083 1 
Page 13 
Third, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner has failed to sufficiently describe the nature, scope, 
organizational structure, and financial goals of the new office. 8 C.F.R. 8 214.2(1)(3)(v)(C)(l). As explained 
above, the petitioner's "business plan" vaguely describes the United States operation as a proposed export 
business. However, the plan fails to specifically describe the petitioner's proposed products, services, 
customers, or competitors. The plan also fails to corroborate its projections regarding revenue, income, 
expenses, or financial goals. Moreover, the record does not contain any independent analysis. Absent a 
detailed description of the petitioner's proposed United States business operation specifically and credibly 
addressing the petitioner's proposed product, marketing plan, customers, staffing, and incomelexpense 
projections, it is impossible to determine whether the proposed 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. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. 5 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
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 at 1002 n. 9 (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 denial. 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., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.