dismissed L-1A Case: Fast Food Restaurants

identifying data deleted to 
arevsqt ciea::y u~wsnanted 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washinaon, DC 20529-2090 
~2~~3 ~f pe~~~d privacy 
- 
U. S. Citizenship 
PUBLIC COPY and Immigration 
File: EAC 08 187 5 1799 
 Office: VERMONT SERVICE CENTER 
 Date: 
 wf5M09 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
F. Grissom 
Chief, Administrative Appeals Ofice 
EAC 08 187 5 1799 
Page 2 
DISCUSSION: The Director, Vermont Service Center denied the nonimmigrant petition and certified his 
decision to the Administrative Appeals Office (AAO) pursuant to the regulation at 8 C.F.R. tj 103.4(a). The AAO 
will affirm the director's decision to deny the petition. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. tj 1101(a)(15)(L). The petitioner, a Georgia corporation that intends to invest in a chain of fast food 
restaurants, states that it is a subsidiary of Sunny Auto Works, located in Mumbai, India. The petitioner seeks 
to employ the beneficiary as president and chief executive officer of its new office in the United States for a 
period of one year. 
The director denied the petition on three independent grounds. Specifically, the director determined that the 
petitioner had failed to establish: (1) that the beneficiary has been employed by the foreign entity in a 
primarily managerial or executive capacity; (2) that the beneficiary would be employed by the U.S. company 
in a primarily managerial or executive capacity within one year; and (3) that the U.S. company and the 
foreign entity have a qualifying relationship. The director certified his decision to the AAO. 
The regulation at 8 C.F.R. tj 103.4(a)(2) allows an affected party 33 days from the date of the service center 
director's decision to submit a brief in the certification proceeding. The director issued the notice of 
certification on October 10, 2008. To date, neither the petitioner nor counsel has submitted a brief.' 
Therefore, the record of proceeding will be considered complete. 
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. tj 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 qualieing 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. 
1 
 The AAO contacted petitioner's counsel by facsimile on April 27, 2009 to advise him that no brief has been 
incorporated into the record of proceeding, and to allow him the opportunity to resubmit any timely filed brief 
or evidence. Counsel has not responded to the AAO's correspondence as of this date. 
EAC 08 187 5 1799 
Page 3 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a quali@ing 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. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(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. 
The first issue addressed by the director is whether the petitioner established that the beneficiary has been 
employed by the foreign entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 l(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; 
EAC 08 187 51799 
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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 l(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 filed the nonimmigrant petition on June 24, 2008. The petitioner submitted a letter from the 
foreign entity dated June 23,2008, in which the beneficiary's duties were described as follows: 
[The beneficiary] has been serving in our company as controlling shareholder and Executive 
Director since 2004. [The beneficiary] is in charge of all administrative operations and 
management of the company. He has assumed overall responsibility for marketing, expanding 
the company's product lines and distribution channels. He enters into contracts on behalf of the 
company with suppliers and wholesalers as well as with banks. He supervises management 
personnel, establishes new business contracts, negotiates with clients and administers new and 
existing business contracts. Through his education and experience [the beneficiary] has gained 
knowledge and experience regarding: examination of performance requirements, delivery 
schedules, and estimation of costs of materials and production as well as ensuring completeness 
and accuracy, prepares bids, tests and prepares progress reports, reviews bids for conformity to 
contract requirements, plans and directs sales programs to promote new markets, and improve 
EAC 08 187 51799 
Page 5 
fast and efficient customer service. He also has exclusive authority of hiring, firing and 
promoting offices and professional [sic] in the company. 
According to the evidence of record, the foreign entity operates an automobile repair shop. The petitioner 
submitted copies of the foreign entity's payroll register for the period April 2007 through March 2008, which 
identifies the following personnel: 
The director issued a request for additional evidence (RFE) on July 2,2008. The director requested, inter alia: (1) 
a detailed description and documentation of the managerial responsibilities the beneficiary performed abroad; (2) 
detailed position descriptions for all employees of the foreign entity, including a breakdown of the number of 
hours devoted to each employee's job duties on a weekly basis; (3) an organizational chart for the foreign entity; 
and (4) information regarding the number of supervisors the beneficiary managed, his degree of discretionary 
authority over the foreign entity's operations, and the amount of time he devoted to executive versus non- 
executive functions. 
In a letter dated September 23, 2008, the petitioner provided the following expanded description of the 
beneficiary's duties as an executive director and partner of the foreign entity: 
[The beneficiary] hadlhas supervisory responsibilities over our Managers and Mechanics as well 
as final signatory authority over purchase and delivery contracts. He also had administrative and 
human resources functions over his mechanics, including hiring, firing and promotions. . . . He 
and private sector through whom we provide our services. [The beneficiary] also has his own 
Office Assistant, who is responsible for executing routine administrative office tasks such as: 
correspondence management, bookkeeping, routine accounting, typing company letters, 
communication with clients, communication with suppliers, etc. She also provides assistance 
regarding delivery, pick-ups and customer service. As Executive Director, [the beneficiary] was 
in charge of all functions and operations of the company, including budget, finance, 
departmental accounting, personnel, negotiations for product sales; contracts; etc. The services 
are provided by our employees. 
Management Decisions: [The beneficiary] possessed all rights to execute all the managerial 
decisions of the Company, including hiring, firing, training and promotion of employees; assess 
performance of mangers [sic] and mechanics; 
EAC 08 187 51799 
Page 6 
Organizational Development: [The beneficiary] was responsible for formulating projects for the 
Company's future development and executes steps to accomplish the desired growth; he prepared 
publicity and promotional campaigns; plan business strategy and target new business 
investments; set sales and product cost targets for managers and monitor progress; 
Company Representation: [The beneficiary] is represented and performed acts in the name of the 
Company in all kinds of business contacts and relations; enter into contracts, deals and 
negotiations in the name and on behalf of the company; 
Directed and formulated financial strategy; to provide funding in developing and continuing the 
operations to maximize returns on investments. 
The petitioner indicated that the beneficiary's time was allocated among his duties as follows: 
Management decisions 25% 
Company representation 20% 
Financial representation 10% 
Supervision of the company day-to-day operations 15% 
Business Negotiations 15% 
Organizational Development 15% 
The petitioner indicated that the beneficiary's subordinates included a general manager, an assistant sales 
manager, three mechanics, and one "helper & office clean up" employee, and provided position descriptions for 
each position. The petitioner did not indicate the names of the individuals occupying each position. 
The director denied the petitioner and certified his decision to the AAO on October 10, 2008. The director 
concluded that the petitioner failed to establish that the beneficiary has been employed by the foreign entity in a 
primarily managerial or executive capacity. 
Upon review, and for the reasons discussed herein, the AAO concurs with the director's determination. The 
petitioner has not established that the beneficiary has been employed by the foreign entity in a primarily 
managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 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 show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The fact that the beneficiary manages a business does not 
EAC 08 187 51799 
Page 7 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of section 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 
1987) (noting that section 101(a)(15)(L) of the Act does not include any and every type of "manager" or 
"executive"). While the AAO does not doubt that the beneficiary exercised discretion over the foreign 
entity's day-to-day operations and had the appropriate level of authority, the petitioner has failed to show that 
his duties have been primarily in a managerial or executive capacity. 
The petitioner has failed to provide a description of the beneficiary's duties sufficient to establish that he was 
employed by the foreign entity in a primarily managerial or executive capacity. The petitioner's initial 
description of the beneficiary's duties included a number of duties that are not clearly qualifying under the 
statutory definitions of managerial and executive capacity, including marketing, expanding distribution 
channels, negotiating with clients, administering new contracts, examining delivery schedules, and preparing 
progress reports These duties suggest that the beneficiary was directly involved in the company's marketing, 
sales and operational tasks, rather than managing such functions through subordinate personnel. Moreover, 
several of the stated duties appeared to be incongruous with the type of business the foreign entity operates. It 
is not clear why a service-oriented business, i.e., an auto repair shop, would require a manager or executive to 
oversee expansion of product lines and distribution channels, or devote significant amounts of time to 
directing sales programs. The initial description offered little insight into what the beneficiary does a day-to- 
day basis as the ownerldirector of the auto repair shop. 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 his daily routine. The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 
F.2d 41 (2d. Cir. 1990). 
While the petitioner provided a lengthier description of the beneficiary's duties in response to the RFE, the 
duties described therein were no more detailed than the original description provided at the time of filing. For 
example, the petitioner indicated that the beneficiary devoted 15% of his time to "organizational 
development," such as "formulating projects," and targeting new business investments. The petitioner did not 
provide examples of specific projects or investments undertaken by the beneficiary, or provide any details as 
to how he carries out "organizational development" on a day-to-day basis. The petitioner indicated that the 
beneficiary spends 15% of his time supervising "day-to-day operations," but again provided no explanation 
regarding his specific tasks beyond this general statement. The petitioner indicated that the remaining 70% of 
the beneficiary's time will be spent, collectively, hiringlfiring and evaluating employees, entering into 
contracts, deals and negotiations, and directing the company's financial strategy. Conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. at 1 1 08; Avyr Associates, Inc. v. Meissner, 1 997 WL 1 88942 at *5 (S.D.N.Y .). 
The beneficiary's "control," management or direction over a company cannot be assumed or considered 
"inherent" to his position merely on the basis of the beneficiary's job title, placement on a general 
organizational chart or broadly-cast business responsibilities. The petitioner's description of the beneficiary's 
EAC 08 187 51799 
Page 8 
duties is insufficient to establish that the beneficiary has performed primarily managerial or executive duties 
while employed by the foreign entity. 
When examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's duties and his or 
her subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or manager position. An individual whose primary duties are those of a 
first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her 
supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
Here, the petitioner claims that the foreign entity employs a general manager, an assistant sales manager, three 
mechanics, a helper and an office assistant, but has failed to identify the names of the employees who hold 
each position. The petitioner has named six employees, however, according to the foreign entity's payroll 
records, the employees' actual position titles are supervisor, auto electrician, denterlwelder, painterlgroomer, 
helperldriver and fitter. 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, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to 
a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. at 591 (BIA 1988). 
For this reason, the position descriptions provided, particularly those for the positions of "general manager" 
and "assistant sales manager" are not credible, and the AAO is not persuaded that an auto repair shop with 
seven employees requires three tiers of management to supervise three mechanics and a helper. The totality of 
the record does not support a conclusion that the beneficiary's subordinates are supervisors, managers, or 
professionals. Based on the job titles indicated on the petitioner's payroll records, it appears that all of the 
employees are involved in providing, or assisting in the provision, of the company's auto repair and 
reconditioning services. 
While one of the beneficiary's subordinates appears to have the title "supervisor," the petitioner has not 
provided a credible description of this employee's duties. An employee will not be considered to be a 
supervisor simply because of a job title, because he or she is arbitrarily placed on an organizational chart in a 
position superior to another employee, or even because he or she supervises daily work activities and 
assignments. Rather, the employee must be shown to possess some significant degree of control or authority 
over the employment of subordinates. Given the size and nature of the vaguely described auto repair shop, it 
is more likely than not that the beneficiary and his proposed subordinate employees all primarily perform the 
tasks necessary to the operation of the business. See generally Family, Inc. v. US. Citizenship and 
Immigration Services, 469 F.3d 13 13 (9th Cir. 2006). Therefore, it appears that the beneficiary is a first-line 
supervisor of non-professional employees. A managerial or executive employee must have authority over 
EAC 08 187 51799 
Page 9 
day-to-day operations beyond the level normally vested in a first-line supervisor. See 101(a)(44) of the Act; 
see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Furthermore, there is no evidence of any administrative, financial or marketing personnel working for the 
foreign company; all of the beneficiary's subordinates are engaged in providing the company's services, which 
would reasonably leave the beneficiary to perform other non-managerial tasks associated with operating the 
business such as day-to-day bookkeeping, invoicing, paying bills, purchasing supplies and materials, and 
advertising. Collectively, this brings into question how much of the beneficiary's time can actually be devoted 
to managerial or executive duties. 
In light of the vague position description submitted for the beneficiary and the unresolved inconsistencies 
regarding the staffing structure of the foreign entity, the AAO is not persuaded that the beneficiary has been 
employed in primarily managerial or executive capacity. For this reason, the petition will be denied. 
The second issue addressed by the director was whether the petitioner established that the U.S. company will 
employ the beneficiary in a primarily managerial or executive capacity within one year of commencing 
operations, as required by 8 C.F.R. 5 214.2(1)(3)(v)(C). 
In its letter dated June 23, 2008, the foreign entity described the beneficiary's proposed duties as president of 
the U.S. entity as follows: 
His duties will include supervision of all financial and marketing operations for the company, 
as well as entering into contracts, over which he will exercise complete discretionary 
authority. He will be in charge of training marketing representatives to procure orders and 
improve their performance. Negotiate contracts with banks and clients; requests and approves 
amendments and or extensions to contracts. He will also be responsible to direct activities of 
personnel in sale accounting, inventory, record keeping, receiving and shipping operations to 
implement fulfillment of contracts. Ultimately, it will be his responsibility to establish [the 
petitioner] on a sound footing. He will recruit and train the staff and have hiring and firing 
authority over them. 
The petitioner submitted a seven (7) page business plan, wherein it is self-described as "an investor and 
developer of fast food restaurants." According to the business plan, the beneficiary will be responsible for 
the following duties: 
Management Decisions: possesses all rights to execute all the managerial decisions of 
the Company, including purchasing goods and equipment and hiring, firing and 
promotion of employees; assess store managers performance and assist with 
management issues; 
Company Representation: acts in the name of the company in all kinds of business 
contacts and relations; 
Has total managerial and executive authority over the company and all of its activities 
and employees without limitation 
EAC 08 187 51799 
Page 10 
Directs and formulate[s] financial strategy to providing funding in developing and 
continuing the operations to maximize returns on investments; set sales and product cost 
targets for managers and monitor progress; 
Supervision of the company's day-to-day operations; oversee store standards regarding 
food quality and customer satisfaction policy; provide support to plant manager and 
support staff; 
Organizational Development: projects the company's future development and executes 
steps to accomplish the desired growth; prepare publicity and promotional campaigns; 
plan business strategy and target new business investments. 
The petitioner indicated that the company's intended staff will include an office administrative assistant, an 
operations manager, six restaurant managers, six assistant managers, and ten front desklcashier employees. 
According to the business plan, the petitioner anticipates hiring three store managers, four assistant store 
managers and at least eight cashiers by 2012. The petitioner provided a position description for each proposed 
position. The petitioner's business plan indicates that the company anticipates generating sales of $1.6 million 
in 2008-2009. Its major projected expenses for the first year of operations include $550,000 in salaries and 
$66,000 in rent. The business plan does not identify the amount of the initial investment made in the U.S. 
entity or identify the company's projected start-up expenses. 
Finally, the petitioner submitted a copy of its lease agreement for a 500 square foot office which it will lease 
for $500 per month. 
The director found the initial evidence insufficient to establish that the petitioner will employ the beneficiary 
in a primarily managerial or executive capacity within one year of commencing operations. In the RFE issued 
on July 2, 2008, the director requested the following additional evidence: (1) a copy of the petitioner's two- 
year business plan, with specific dates for each proposed action, for the next two years; (2) a more detailed 
description of the beneficiary's proposed position; and (3) additional information regarding the size of the 
United States investment and the petitioner's ability to commence doing business in the United States. 
In its letter dated September 23, 2008, the petitioner stated: 
[The petitioning company] will be investing in Fast food Restaurants. We conservatively 
estimate sales of $1.2 million during the starting year. However, the petitioner expects to 
double or triple that amount in first year. It is expected that within two years the petitioner 
will own three stores and sales revenues will exceed $10 million. In order to reach this 
modest goal, the petitioner will have to rely on subordinates and hire the following 
professional employees. . . . 
The petitioner went on to state that it will hire an operations manager, restaurant managers, assistant 
managers, cashiers, and an office administrative assistant. The petitioner did not respond to the director's 
request for a more detailed business plan. 
EAC 08 187 51799 
Page 11 
The petitioner provided the following description of the beneficiary's proposed duties as president and chief 
executive officer: 
Financial Management: His duties will include supervision of the financial operations for the 
company. He will be responsible for major decision making for petitioner relating to 
financing general administration, expansion and direction of the company. He with the 
Operations Manager will hire, fire and review performance of employees (primarily 
managers). 
Management Decisions: possesses all rights to execute all the managerial decisions of the 
Company; assess Operations Manager performance and assist with management issues; 
Company Representation: acts in the name of the Company in all kinds of business contacts 
and relations; 
Has total managerial and executive authority over the company and all of its activities and 
empIoyees without limitation; 
Directs and formulate[s] financial strategy to provide funding in developing and continuing 
the operations to maximize returns on investments; set sales and product cost targets for 
managers and monitor progress; 
Supervision of the company's operations; oversee standards regarding goods and customer 
satisfaction policy; 
Organizational Development: projects the Company's future development and executes steps 
to accomplish the desired growth; plan business strategy and business investments. 
The petitioner did not specifically address the size of the investment in the United States entity in its response 
to the RFE. However, the petitioner did provide a letter from the beneficiary's bank stating that he has an 
account with a balance of $5,703 as of September 24. 2008. The record does not contain any bank statements 
or bank letters for the petitioning company. 
The director determined that the petitioner failed to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity within one year, and certified his decision to the AAO. The AAO 
concurs with the director's determination and will affirm the denial of the petition. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
EAC 08 187 5 1799 
Page 12 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(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. The petitioner must also establish that 
the beneficiary will have managerial or executive authority over the new operation. See 8 C.F.R. 5 
2 1 4.2(1)(3)(v)(B). 
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 
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 
therefore. Most importantly, the business plan must be credible. 
Id. 
Here, the petitioner has not adequately described the beneficiary's proposed duties, the intended scope of the 
U.S. office and its anticipated organizational structure after one year, or the size of the investment in the 
United States entity. 
First, 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. When examining the proposed executive or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the proposed 
job duties. See 8 C.F.R. fj 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe 
the duties that will be performed by the beneficiary and indicate whether such duties will be either in an 
executive or managerial capacity. Id. 
In this matter, the petitioner has 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 after the petitioner's first year in 
operation. For example, the petitioner initially stated that the beneficiary will be responsible for "training 
marketing representatives to procure orders," and directing activities of "personnel in sale accounting, 
EAC 08 187 5 1799 
Page 13 
inventory, record keeping, receiving and shipping operations to ensure fulfillment of contracts." Given the 
petitioner's claim that the U.S. entity intends to operate fast food restaurants, these duties are not credible. The 
petitioner does not indicate elsewhere in the record that it intends to hire marketing representatives, sales, 
accounting, inventory, record keeping or shipping and receiving personnel. 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, 591-92 (BIA 1988). 
While the petitioner provided a lengthier description of the beneficiary's proposed duties in response to the 
RFE, the duties described are generalized and provide little insight into what tasks the beneficiary will 
actually perform at the end of the first year of operations. For example, the petitioner indicates that the 
beneficiary's responsibilities include supervision of financial operations, executing "all managerial decisions," 
having "total managerial and executive authority over the company and all of its activities," and "supervision 
of the company's operations." 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 proposed activities in the 
course of his daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
The 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). While it appears that the beneficiary would exercise the requisite 
authority over the U.S. company as its president, the vague position descriptions provided fall significantly 
short of establishing that the beneficiary's primary duties would be managerial or executive in nature within 
one year. 
Likewise, the record is not persuasive in establishing that the beneficiary would be relieved of the need to 
perform the non-qualifying tasks inherent to his duties and to the operation of the business in general within 
one year. Although the petitioner indicates its intent to hire an operations manager, restaurant managers, 
assistant managers, cashiers and an administrative employee, the petitioner has not submitted a detailed 
business plan or hiring plan, nor does it indicate how many employees are anticipated by the end of the first 
year in operations. As noted above, 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. 5 214.2(1)(3)(v)(C). The 
petitioner's evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly 
expand as it moves away from the developmental stage to full operations, where there would be an actual 
need for a manager or executive who will primarily perform qualifying duties. 
The petitioner's initial business plan fell significantly short of establishing an expectation that the petitioner 
will support a managerial or executive position within one year. The petitioner did not identify the potential 
EAC 08 187 51799 
Page 14 
locations of its restaurants, the type of restaurant it intends to operate, potential locations for such businesses, 
the permit and license requirements for the business, its anticipated start-up costs, or the amount of its initial 
investment. While the petitioner indicates that it anticipates generating sales of $1.5 million in the first year of 
operation, and paying $550,000 in wages, there is no corroborating evidence to support these predictions. 
There is no evidence that the petitioner has progressed in its planning beyond deciding what type of business 
it may want to operate. Although the director specifically requested a detailed business plan outlining the 
petitioner's intended activities for the first two years of operation, with a timeline of anticipated milestones, 
the petitioner's response to the RFE failed to elaborate upon its initial business plan. Any failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
103.2(b)(14). 
The record shows that the petitioner has leased only a small office which is clearly unsuitable for the 
operation of a restaurant. There is no evidence that the petitioner has begun the process of locating suitable 
premises for its restaurant or restaurants or begun the often lengthy process of applying for the required health 
permits and licenses. Furthermore, the director specifically requested in the RFE that the petitioner clarify the 
amount of the initial investment in the U.S. office, as required by 8 C.F.R. 214.2(1)(3)(v)(C)(2). In response, 
the petitioner submitted a letter indicating that the beneficiary has a personal bank account with a balance of 
$5,703. There is no evidence that any investment has been made in the U.S. company. Upon review of the 
totality of the evidence, it is reasonable to conclude that the petitioner is not prepared to open one restaurant, 
much less a chain of restaurants, and the proposed staffing plan in the business plan could not credibly be 
achieved within one year. 
For all of the above reasons, the petitioner has not established that the beneficiary will be employed in a 
primarily managerial or executive capacity within one year, or that the U.S. company could support such a 
position. For this additional reason, the petition will be denied. 
The third and final issue addressed by the director is whether the petitioner has a qualifying relationship with 
the foreign 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 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. fj 214.2(1). 
The pertinent regulations at 8 C.F.R. fj 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualzfiing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
EAC 08 187 51799 
Page 15 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee[.] 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
The petitioner stated on Form 1-129 that it is a subsidiary of the foreign entity, Sunny Auto Works. Where 
asked to described the stock ownership and managerial control of each company, the petitioner stated: " Mr. 
-49%; ~r.- 51%." 
The petitioner submitted a letter dated June 23, 2008 from Sunny Autoworks, indicating that the beneficiary 
owns 5 1 % of the foreign partnership and 100% of the U.S. company. 
The supporting evidence indicates that the foreign entity was registered in April 2003 as a sole proprietorship 
owned by the beneficiary. The petitioner submitted the beneficiary's latest Indian income tax return, filed in 
July 2007, which also identifies him as sole proprietor of the business. The petitioner did not submit evidence 
of the claimed partnership between the beneficiary and The evidence shows that the 
beneficiary purchased a shop from in March 2004, but the "agreement for sale of shop," does 
not indicate that 
 received any ownership of the business known as Sunny Autoworks. 
With respect to the U.S. entity, the petitioner submitted its Georgia articles of incorporation, which indicate 
that the company is authorized to issue 1,000 shares of stock. The petitioner also submitted a document titled 
"Consent of the Directors of [the petitioner] to the Adoption of Certain Actions and Resolutions in Lieu of 
First Annual Meeting." According to this document, the purchase price of the petitioner's stock is $1 .OO per 
share. The petitioner also provided a copy of its stock certificate number one, issuing 1,000 shares to the 
beneficiary on June 23,2008. 
In the RFE, the director requested additional evidence of the ownership and control of the U.S. entity, as well 
as additional evidence to establish that the foreign entity is doing business and will continue to do business 
during the beneficiary's period of stay in the United States. Finally, the director requested copies of any bank 
wire transfers or other evidence to document the transfer of funds to the U.S. entity. 
EAC 08 187 5 1799 
Page 16 
In response, the petitioner reiterated that the beneficiary owns 5 1% of the foreign entity and controls the 
company based on his majority ownership. The petitioner re-submitted the petitioner's articles of 
incorporation, by laws, stock certificates and consent of directors. 
In its letter dated June 23, 2008, the petitioner stated that it was enclosing a copy of the wire transfer used to 
fund the U.S. entity, along with bank statements. Upon careful review of the record, the AAO cannot locate 
evidence of any wire transfers, or any bank statements for the U.S. company. 
The director determined that the petitioner did not submit sufficient supporting documentation to address the 
relationship between the foreign and U.S. entities or to establish that the foreign entity would continue to do 
business as defined in the regulations for the duration of the beneficiary's stay in the United States. The 
director noted that the petitioner did not submit evidence of any monetary investment in the U.S. company. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
While the petitioner has described an affiliate relationship between the two companies based on common 
majority ownership and control by the beneficiary, the AAO concurs that the petitioner has not submitted 
adequate documentation to support the claimed relationship. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also 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 of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, USCIS is unable to determine the elements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. tj 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
property, or other consideration furnished to the entity in exchange for stock ownership. Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
EAC 08 187 51799 
Page 17 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
The petitioner indicates that the beneficiary owns 51 percent of the foreign entity, which it describes as a 
partnership. All of the documentary evidence in the record indicates the foreign entity is a sole proprietorship 
owned by the beneficiary. This discrepancy has not been explained. 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, 591-92 (BL4 1988). 
While the entities would have an affiliate relationship if the beneficiary does in fact own 100 percent of each 
company, the AAO cannot overlook the petitioner's and foreign entity's statements that the Indian company 
has two owners. Nor can the AAO discount the possibility that the beneficiary sold part of his interest in the 
foreign entity subsequent to filing his latest tax return in July 2007. Absent documentation confirming the 
claimed ownership of the foreign entity, the AAO finds the evidence insufficient to establish that the 
beneficiary continues to be the majority owner of Sunny Autoworks. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
With respect to the U.S. entity, the AAO finds insufficient evidence that the beneficiary has actually paid for 
his claimed interest in the company. As noted by the director, there is no evidence of any transfer of funds to 
the U.S. company from any party. According to the petitioner's corporate records, the purchase price of its 
1,000 shares of stock was $1,000. Therefore, it is reasonable to expect the petitioner to document that the 
beneficiary paid this amount for issuance of the company's stock. The non-existence or other unavailability of 
required evidence creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 
The 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. 5 1361. Here, that burden has 
not been met. 
ORDER: 
 The director's decision dated October 10,2008 is affirmed. The petition is denied.