dismissed L-1A Case: Floral Retail

identi- data deleted to 
prevent clearly unwarranted 
invasion of persod privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: SRC 06 004 52334 Office: TEXAS SERVICE CENTER Date: JUL 0 8 2008 
IN RE: 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
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 inqulry must be made to that office. 
P. Wiernann, ~6ef 
ministrative Appeals Office 
SRC 06 004 52334 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa and 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 extend the employment of its president as an L-1A 
nonirnmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner, a Florida corporation, operates a floral shop. The 
petitioner claims that it is a subsidiary of Heald Mellows Solicitors located in Bedford, United Kingdom. The 
beneficiary was previously granted one year in L-1A classification in order to open a new office in the United 
States, and the petitioner now seeks to extend his status for two additional years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity under the extended petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary 
does in fact function in a primarily managerial and executive capacity as the president of the U.S. company. 
Counsel clarifies the petitioner's staffing levels, and asserts that the beneficiary's subordinate staff relieves 
him from performing the day-to-day operations of the U.S. business. Counsel submits a brief and additional 
documentary evidence in support of the appeal. 
To establish eligibility for the L-1 nonirnmigrant 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. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(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 
SRC 06 004 52334 
Page 3 
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. fj 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form I- 129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. fj 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 
SRC 06 004 52334 
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(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonirnmigrant petition was filed on October 6, 2005. The petitioner indicated on Form El29 that the U.S. 
company was established in 2004 and has four employees. In a letter dated October 4, 2005, counsel for the 
petitioner indicated that the beneficiary has been performing managerial/executive duties as president of the 
petitioning company and would continue to perform the same duties under the extended petition. Although 
the petitioner referenced an accompanying employer letter on Form 1-129, upon careful review, the employer 
letter cannot be located in the record of proceeding. 
In support of the petition, the petitioner provided an organizational chart which depicts the beneficiary as 
"chief officer" with the following: subordinate em~lovees: 
u . # 
- Principal Floral DesignerIShop Manager 
& Marketing AssistantIDeliveries 
- DeliveryIGeneral helplcleaning 
The petitioner provided a copy of its Florida Form UCT-6, Employer's Quarterly Report, which indicates that 
the petitioner employed one employee, 
 , during the second quarter of 2005. The petitioner 
s and another employee, The 
f . . 
submitted copies of weekly time records or 
provided copies of employment applications completed by 
application bears with a handwritten notation indicating that 
date of September 2 1,2005. 
The director issued a request for additional evidence on October 14, 2005. The director instructed the 
petitioner to provide a more specific description of the beneficiary's day-to-day duties and the percentage of 
time he spends on each duty. The director also requested copies of the petitioner's state and federal quarterly 
wage reports for all employees fi-om 2005. 
SRC 06 004 52334 
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In a response dated October 19, 2005, the petitioner indicated that the beneficiary performs the following 
"primary job functions": 
Exercise overall executive and financial control for company's operations (15%) 
[The beneficiary] exercises financial control over business operations by ensuring the timely 
payment of all bills and reviewing and analyzing bank statements, credit card statements and 
statements from merchant services utilized by the company. He reviews financial and 
accounting statements and discusses the company's financial position and tax obligations with 
the company accountant. He hblds overall executive control for the company's operations and 
is the principal individual who negotiates and enters into contracts. For example, as chief 
executive, he negotiated and signed the company's existing contracts for Teleflora and Flower 
Shop networks and "After Hours" tuxedo rental services. 
Set and monitor company strategies, goals, policies and procedures (20%) 
[The beneficiary] sets the company's growth strategy and financial goals. He monitors and 
determines marketing strategies. For example, [the beneficiary] has researched and identified 
hotels and wedding venues as key target areas for business expansion through the provision 
of wedding florals. He sets marketing and sales goals and monitors the staffs progress in 
achieving these goals. 
When the business was new, [the beneficiary] spent a substantial amount of time in 
analyzing and establishing business procedures, including the appropriate support systems to 
be utilized for the successful operations of the business. This included analyzing the 
business's IT, computer and telephone system needs and ensuring the appropriate selection of 
support systems. [The beneficiary] had to ensure that all systems would be compatible with 
Teleflora and the specific needs of a floral business . . . . 
Set and monitor budgets and cash flow (1 0%) 
Through review and analysis of the business's financial statements, [the beneficiary] 
determines the company's budgets and establishes policies to ensure a positive cash flow. 
Represent comvany before financial entities (5%) 
As President, [the beneficiary] represents the company before its bankers and cultivates a 
good business relationship with the financial institutions with whom the company is involved. 
He is the primary point of contact with bank representatives. 
Exercise discretion over day-to-day operations of business (20%) 
[The beneficiary] discusses marketing plans and operations with the Sales & Marketing 
Assistant and approves marketing activities. He reviews the daily Marketing efforts of the 
Sales & Marketing assistant and discusses her progress in achieving goals. He reviews and 
approves advertisements. He previously reviewed and approved the art work for delivery 
vehicle signage. [The beneficiary] supervises the work of the Shop Manager and discusses 
current orders, delivery issues, inventory needs and quality control issues with her. He holds 
SRC 06 004 52334 
Page 6 
ultimate discretion and authority over all operations of the business. He is a hands-on 
executive, spending time each day at the business location, supervising and monitoring daily 
operations. 
Research and implement new business opportunities (25%) 
As the chief executive of the company, [the beneficiary] was primarily responsible for 
researching and negotiating the purchase of the current floral shop. He served as the 
company's representative with the selling agent. He also reviewed the financials produced by 
the seller, the lease, and the other documents relating to the transfer of the business. Since the 
current floral shop was purchased in spring 2005, he does not need to perform those exact 
same functions on a day-to-day basis. However, [the beneficiary] is still actively involved in 
researching new business opportunities, including the purchase of a second floral outlet. The 
company came very close previously to purchasing a second shop and [the beneficiary] spent 
many hours at that time visiting the prospective new location, conducting a detail analysis of 
the financial and management information and preparing cash flow projections and forecasts. 
This occupied a large percentage of his time. [The beneficiary] concluded that the second 
shop that had been identified would not be a good investment and the deal did not move 
forward. However, he will continue to liaise with brokers and selling agents and conduct due 
diligence for new business opportunities. On average, one day a week may now been [sic] 
spent on such activities, whereas the hours spent in the past on these functions was greater 
when the business was in serious negotiations for the second shop. As [the beneficiary] 
identifies the next prospective new business investment, the daily time he spends on financial 
analysis and purchase negotiation will increase. 
[The beneficiary] has also researched new business opportunities that are available through 
the expansion and diversification of services and products currently offered by the floral 
shop. This includes the identification of Florida Lottery sales as a means to draw additional 
customers. [The beneficiary] is implementing this new business opportunity through 
negotiation of the contract for the Florida Lottery and discussions with the Landlord 
regarding additional signage and the placement of a satellite dish/pole at the business 
premises along with the supporting technology. He is also researching the possibility and 
feasibility of joining DUFRESH which will require a commitment for a weekly standing 
order of flowers and plants. This must be analyzed in view of the company's 'financial and 
sales figures. [The beneficiary] is also researching and analyzing the possibility of a joint 
marketing arrangement for a specialist dish garden, which can be used on graves and 
engraved to suit. 
Interview. recruit, hire and fire all staff, including employees and independent contractors 
(1 5%) 
[The beneficiary] does not interview, recruit, hire and fire staff on a daily basis. However, as 
President, he is primarily responsible for this function as necessary. Very recently the Sales & 
Marketing Assistant position became available when the employee who originally held the 
position, s, left. [The beneficiary] was responsible for reviewing and approving 
SRC 06 004 52334 
Page 7 
the advertisement for the vacant position as well as for interviewing replacement candidates 
and selecting and hiring the current Sales & Marketing Assistant, 
-. 
The petitioner also submitted the requested Florida Forms UCT-6, Employer's Quarterly Report, for the first 
three quarters of 2005. The Form UCT-6 for the quarter ended on September 30, 2005 shows that the 
rees me months of July, August and September and paid wages as follows: 
$55.00. The petitioner stated that its 
petitioner stated that additional staff would be hired as the business expands and a second shop is opened. 
Finally, the petitioner indicated that it utilizes an accountant and hires attorneys and other professionals as 
needed. 
The director denied the petition on October 29,2005, concluding that the petitioner had failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director noted some discrepancies between the petitioner's organizational chart and wage 
records, and noted that the petitioner had failed to provide evidence of wages paid to a newly hired employee. 
The director concluded that the petitioner appears to have only one full-time employee other than the 
beneficiary. The director further noted that the petitioner did not establish how many hours the other 
employees work or the nature of their duties. 
The director acknowledged the position description submitted for the beneficiary, but noted that duties such 
as paying bills, reviewing bank and credit card statements, negotiating contracts and performing market 
research and marketing duties are not managerial or executive in nature. The director therefore concluded that 
"the day-to-day duties of the position include a large number of duties that would appear to be performing the 
function of the business, rather than just managing or directing the business." The director further found that 
the beneficiary would have to engage in the day-to-day business activities given that the company employs 
only three other employees. 
On appeal, counsel for the petitioner asserts that the petitioner does in fact function in an executive 
managerial and executive capacity. Counsel apologizes for any confusion regarding the number of 
subordinate employees worlung for the petitioner and the nature of their employment. Counsel confirms that 
two of the petitioner's four employees, . and are employed on a part-time 
basis, and that they were hired in late Se tember and rnid-October 2005, respectively. Counsel notes that the 
other employee who lefi the company, was hired in late June 2005 and quit during the first 
week of September. Counsel confirms that the petitioner currently has a total of four employees holding the 
roles of president, principal floral designer/shop manager, sales and marketing assistant, and 
deliveriedgeneral assistancefcleaning. 
With respect to the beneficiary's duties, counsel asserts that all of the beneficiary's duties are managerial and 
executive in nature, and that his role as president meets the regulatory criteria for both managerial and 
executive capacity. Counsel emphasizes that the petitioner's business is floral design, sales and delivery, and 
notes that the beneficiary himself does not arrange and design floral arrangements or participate in sales and 
SRC 06 004 52334 
Page 8 
delivery of the petitioner's products. Counsel asserts that the beneficiary is engaged in "planning, organizing, 
directing, controlling, leading and managing the organization and doing so through his staff." 
In support of the appeal, the petitioner submits photographs depictin its em loyees and employment 
documentation for its two newest employees. The records show that worked 24.5 hours the 
week ended on October 21, 2005 and 13 hours the week ended on October 28, 2005. The only record 
provided for shows that she worked for a total of four hours during the week ending September 
24, 2005. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary 
would be employed in a primarily managerial or executive capacity under the extended petition. 
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. 
Here, while the petitioner has provided a breakdown of the beneficiary's duties and the percentage of time 
allocated to each duty, the description fails to establish that the beneficiary would primarily perform 
managerial or executive duties on a day-to-day basis. For example, the petitioner indicated that the 
beneficiary devotes 15 percent of his time to exercising "overall executive and financial control" over the 
petitioner's operations. However, the specific tasks associated with this responsibility include paying bills, 
reviewing banks statements and credit card statements, and other tasks that are essentially bookkeeping or 
administrative duties and have not been shown to be managerial or executive in nature. The petitioner states 
that the beneficiary spends an additional 15 percent of his time to setting and monitoring budgets and cash 
flow and representing the company before financial institutions, but again, these duties appear to be more akin 
to day-to-day bookkeeping and banking tasks than managerial or executive duties. Further, the petitioner's 
statement that the beneficiary has "overall executive control for the company's operations" offers little insight 
into hls actual executive-level duties. Specifics are clearly an important indication of whether a beneficiary's 
duties are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bvos. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 
905 F.2d 41 (2d. Cir. 1990). 
The petitioner stated that the beneficiary devotes an additional 20 percent of his time to "set and monitor 
company strategies, goals, policies and procedures." The petitioner indicated that this responsibility includes 
setting "growth strategy and financial goals,' monitoring and determining marketing strategies, and setting 
marketing and sales goals. The petitioner did not describe the specific goals or strategies set by the 
beneficiary, the actual duties he performs in this regard, or identify who on its staff is responsible for 
performing ancillary duties such as market research. 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 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 
SRC 06 004 52334 
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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). 
The petitioner further stated that the beneficiary devotes 20 percent of his time to exercising discretion over 
the day-to-day operations of the petitioner's business, which includes spending time at the business location 
"supervising and monitoring daily operations," and holding "ultimate discretion and authority over all 
operations of the business." Although the petitioner indicates that the beneficiary reviews and approves 
marketing and advertising activities, it has failed to establish who on its staff actually performs the day-to-day 
tasks associated with these functions. As discussed further below, the petitioner has not provided position 
descriptions for the beneficiary's subordinates. The petitioner has not established that the time the beneficiary 
devotes to overseeing the petitioner's retail store operations is spent performing duties that are primarily 
managerial or executive in nature, nor has it been entirely credible that the beneficiary works in the 
petitioner's shop but spends only 20 percent of his time performing what the petitioner describes as "hands- 
on" tasks. The AAO cannot accept an ambiguous position description and speculate as to the related 
managerial or executive duties to be performed. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature, othenvise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bi-0s. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Finally, the petitioner indicates that the beneficiary devotes the largest portion of his time, 25 percent, to 
researching and implementing new business opportunities. Although the petitioner provided several examples 
of the types of business opportunities under consideration, the record fails to establish what specific tasks the 
beneficiary performs on an ongoing, day-to-day basis to expand the petitioner's business, nor did it provide 
any documentary evidence related to the petitioner's claimed expansion efforts. 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 Craf2 of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
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). 
The AAO does not doubt that the beneficiary exercises authority over the U.S. company as its president, 
shareholder, and as the senior employee of its four-person staff. However, based a review of the record in its 
entirety, the AAO is unable to determine whether the claimed managerial and executive duties constitute the 
majority of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial 
administrative, operational and/or first-line supervisory duties. The position description provided, while 
considerable in length, provides little insight into what the beneficiary primarily does on a typical day. The 
fact that the beneficiary manages a business, regardless of its size, does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
sections lOl(a)(lS)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Overall, the position 
description provided falls significantly short of articulating the beneficiary's day-to-day responsibilities, such 
SRC 06 004 52334 
Page 10 
that they could be classified as primarily managerial or executive in nature. The petitioner cannot rely on 
vague characterizations and conclusory assertions to establish the beneficiary's employment in a managerial 
or executive capacity. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his managerial duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. Here, the beneficiary supervises a principal 
floral designerlshop manager, a part-time sales and marketing assistant/delivery person, and a part-time 
deliverylgeneral helplcleaning employee. According to the organizational chart provided by the petitioner, the 
beneficiary directly supervises each of these employees, and is the only employee in the company with 
responsibility for supervising personnel. Accordingly, the petitioner has not established that the beneficiary 
manages one or more subordinate supervisory employees. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 4 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Comrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. The petitioner has not established that any of the beneficiary's subordinates possess or require 
a bachelor's degree to perform their job duties, such that they could be considered professionals. Finally, 
although the petitioner claims that its principal floral designer is also a "shop manager," the petitioner has 
provided minimal information regarding her actual job duties and areas of responsibility. Again, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. The petitioner has not established that this 
employee is a "manager" other than in position title. Furthermore, as noted above, according to the 
petitioner's organizational chart, the "shop manager" does not actually supervise the floral shop's other 
workers, rather, the beneficiary himself serves as their first-line supervisor. The petitioner has not established 
that the beneficiary supervises and controls a subordinate staff of managerial, professional, or supervisory 
employees. 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather the 
AAO must determine based on a totality of the record whether the description of the beneficiary's duties 
represents a credible perspective of the beneficiary's role within the organizational hierarchy. As observed by 
the director, the record does not demonstrate that the petitioner has a sufficient number of direct or contracted 
SRC 06 004 52334 
Page 11 
employees who could perform the non-managerial duties associated with operating the petitioner's business 
on a day-to-day basis. 
As required by section 101 (a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity, CIS must take into account the reasonable needs 
of the organization, in light of the overall purpose and stage of development of the organization. In the 
present matter, however, the regulations provide strict evidentiary requirements for the extension of a "new 
office" petition and require CIS to examine the organizational structure and staffing levels of the petitioner. 
See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows the "new office" 
operation one year within the date of approval of the petition to support an executive or managerial position. 
There is no provision in CIS regulations that allows for an extension of this one-year period. If the business 
does not have sufficient staffing after one year to relieve the beneficiary from primarily perfonning 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant 
matter, the petitioner has not reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. 
At the time of filing, the petitioner was a one-year old company operating a retail floral shop that is open for 
business for a total of 46.5 hours per week. The petitioner employs the beneficiary as its president, a full-time 
principal floral designedshop manager, a part-time "sales and marketing assistant" and delivery person, and a 
part-time employee whose duties are described as including "general help," deliveries and cleaning. The 
petitioner has not provided position descriptions for the beneficiary's subordinate employees or provided 
sufficient evidence of the number of hours worked by the part-time employees. It is also unclear how the 
subordinate employees divide their time among their various assigned roles; however, a weekly time sheet 
submitted for the sales and marketing employee suggests that this employee spends a large portion of her time 
delivering orders to customers, and even the principal floral designedshop manager appears to spend some 
portion of her time on deliveries. The petitioner reasonably requires personnel to create floral arrangements, 
purchase inventory from suppliers and receive deliveries, monitor and maintain inventory, take special orders 
from customers, answer customer's questions, ring up sales transactions, and deliver orders to customers. In 
addition, it needs someone to market and advertise the business, and to perform day-to-day banking and 
bookkeeping duties, personnel record keeping, and other administrative and clerical tasks associated with 
operating any small business. 
Based on the evidence submitted, it appears that the majority of the marketing, advertising, administrative, 
clerical and financial tasks are performed by the beneficiary himself, and these duties have not been shown to 
be primarily managerial or executive in nature. Furthermore, it is not clear from the record that the one full- 
time employee and two part-time employees actually relieve the beneficiary from performing all of the other 
non-managerial tasks associated with operating the petitioner's business. While the principal floral 
designerlshop manager is employed full time, she does not staff the store during all of its operating hours, and 
it has not been shown that she is able to essentially operate the business single-handedly while the part-time 
employees are engaged primarily in delivering orders to customers. Again, it must be emphasized that the 
petitioner did not provide position descriptions for the beneficiary's subordinates. The AAO will not 
speculate as to who performs the day-to-day tasks associated with operating the petitioner's business and will 
not assume that the beneficiary is relieved from performing non-qualifying operational duties. 
SRC 06 004 52334 
Page 12 
Therefore, based on the petitioner's representations, it does not appear the petitioner would have a reasonable 
need for the beneficiary to perform primarily managerial or executive duties. The record does not establish 
that the beneficiary's three subordinate employees could relieve him from participating in the day-to-day 
operations of the company on a regular basis. Regardless, the reasonable needs of the petitioner serve only as 
a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or executive duties. 
The petitioner must still establish that the beneficiary is to be employed in the United States in a primarily 
managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act and that someone 
other than the beneficiary performs the majority of the non-managerial duties associated with the business. 
The petitioner has not met this burden. As discussed above, the petitioner has not established this essential 
element of eligibility. 
The AAO acknowledges the petitioner's assertions that the U.S. company anticipates hiring additional 
employees and expanding their business operations in the future. However, the petitioner must establish 
eligibility at the time of filing the nonirnmigrant visa petition. A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. 
See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comrn. 1978); Matter ofk'atigbak, 14 I&N Dec. 
45,49 (Cornrn. 1971). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in a 
primarily managerial or executive capacity under the extended petition. For this reason, the appeal will be 
dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.