dismissed L-1A Case: Food Import/Export

identifying data &ked to 
prevent clca -i; unwarranted 
invasion of personal privscy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
File: LIN 01 126 56389 Office: NEBRASKA SERVICE CENTER Date: SEP 0 5 DO6 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1101(a)(15)(L) 
IN BEHALF OF 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. 
- -&--- 
Robert P Wiernann, ~&f 
~dm~&htive Appeals Office 
LIN 01 126 56389 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of general 
manager to start 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 limited liability company organized under the laws of the State of Michigan, claims to be 
engaged in the business of importing and exporting frozen food products and alleges that it is the affiliate of 
a business entity located in Cairo, Egypt. 
The director denied the petition concluding that the petitioner failed to demonstrate that the intended United 
States operation, within one year of the approval of the petition, will support an executive or managerial 
position, or that sufficient premises to house the new office have been secured. 
The petitioner subsequently filed an appeal. 
 The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that it has submitted adequate 
evidence that the position will be managerial or executive in nature, that the foreign entity has the financial 
ability to remunerate the beneficiary, and that sufficient premises have been secured.' 
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. § 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. 
' Although counsel indicated that a brief would be provided in support of the petitioner's arguments, this 
office has not received a brief or any additional evidence since the appeal was filed. 
LIN 01 126 56389 
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(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 hindher 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. 5 214.2(1)(3)(~) 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. 
The first issue in this proceeding is whether the intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial position. 
In the initial petition, the petitioner states that it intends to establish a frozen food export business in Detroit, 
Michigan, and that it is hiring three additional people. Other than a copy of a lease, petitioner submitted no 
evidence relevant to the establishment, structure, scope, or goals or the U.S. entity. Moreover, the petitioner 
failed to submit any evidence regarding the size of the United States investment and the organizational 
structure of the foreign entity. 
On March 16, 2001, the director requested substantial additional evidence regarding both the foreign entity 
and the United States entity including evidence of the size of the United States investment, a detailed business 
plan, and photographs of the premises leased in Michigan. 
LIN 01 126 56389 
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In response to the request for evidence, the petitioner submitted a letter from Standard Federal Bank of 
Michigan indicating that the petitioner had opened a business checking account; a business plan unsupported 
by any contemporaneous or financial information; and the requested photographs of the leased premises. 
On May 12, 2001, the director denied the petition. The director determined that the petitioner failed to 
demonstrate that the intended United States operation, within one year of the approval of the petition, will 
support an executive or managerial position, or that sufficient physical premises to house the new office have 
been secured. 
On appeal, the petitioner asserts that the petitioner has submitted adequate evidence proving that the position 
will be managerial or executive in nature, that the foreign entity has the financial ability to remunerate the 
beneficiary, and that sufficient premises have been secured. The petitioner does not address its failure to 
provide any evidence of an investment in the United States entity. 
Upon review, the petitioner'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. Cornm. 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 marketlprospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the 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 
LIN 01 126 56389 
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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. 
The petitioner has failed to present evidence sufficient to prove that the intended United States operation, 
within one year of the approval of the petition, will support an executive or managerial position. The petitioner 
provided no information regarding an investment in the United States entity other than evidence that a business 
checlung account had been opened. The petitioner declined to provide the current balance of this account, a 
history of transactions, or a record of transfers into the account from abroad. Moreover, the petitioner declined to 
provide any information regarding assets purchased for the United States entity even though the director 
specifically requested this information in his request for evidence. 
Likewise, the business plan submitted by the petitioner fails to prove that the enterprise will likely 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 plan does not 
outline a credible plan, especially when coupled with the lack of evidence of any U.S. investment, for 
expansion beyond the initial start-up phase. Also, the petitioner failed to corroborate its plan with any 
documentation, studies, or independent analyses. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sof@ci, 22 I&N 
Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1 972)). 
Even accepting as true the petitioner's assertions regarding its business viability during its first year in 
operation, the petitioner did not establish that the four person export business described by the petitioner in its 
business plan would support an executive or managerial position within one year of the petition's approval.' 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 3 1 101(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; 
2 
 The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. A petitioner must clearly describe the duties to be performed by the beneficiary and indicate whether 
such duties are either in an executive or managerial capacity. The petitioner must demonstrate that the 
beneficiary's responsibilities will meet the requirements of one or the other capacity. 
LIN 01 126 56389 
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(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 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. 
In the current petition, the petitioner intends to employ four people, including the beneficiary. 
 These 
employees are the beneficiary, an assistant manager, a secretary, and a clerk. While the beneficiary's duties 
are described in the business plan as managing exports, supervising the business and staff, negotiating 
contracts, budgeting, finding vendors, overseeing shipping and invoicing, and carrying out the business plan, 
this description is vague such that it is difficult to determine what the beneficiary will be doing on a day-to- 
day basis. The description for the subordinate assistant manager is similarly vague. Given the evidence of 
record, it appears that, even accepting the growth predicted in the business plan, all three subordinate 
employees will be providing services directly to customers, or the beneficiary will be either supervising the 
day-to-day operations of non-professional subordinates or providing services to customers as well. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Intn'l., 19 I&N Dec. 593, 604 (Comm. 1988). A managerial or executive 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. Section 101(a)(44)(A) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. at 604. Either way, the petitioner has failed to 
present evidence probative of how the U.S. entity will be able, after one year, to support a primarily executive 
or managerial employee by failing to explain how the export services will be provided and by whom. It is 
LIN 01 126 56389 
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appropriate for Citizenship and Immigration Services to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees 
who would perform the non-managelal or non-executive operations of the company, or a "shell company" 
that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. 
Supp. 2d 7,15 (D.D.C. 2001). 
The second issue in this proceeding is whether sufficient vremises to house the new office have been secured. 
- 
tial petition, the petitioner provided a copy of a lease for 1,400 square feet of space at 
Detroit, Michigan. 
 On March 16, 2001, the director requested that the petitioner provide 
photographs of the inside and outside of the leased premises. 
 In response to the request for evidence, the 
petitioner submitted the requested photographs of the leased premises. 
On reviewing the lease and the photographs, the director concluded: 
The photographs submitted for the U.S. entity were of a business that needed significant 
renovations before any type of business could be conducted. The petitioner indicated that 
renovations were being performed after the photographs were taken. This assertion is 
simply not persuasive. The record indicates the petitioner signed a lease in November, 
2000. The petitioner's response was filed with this Service on May 1, 2001. In the 
approximate six months from the signing of the lease until the petitioner's response to the 
Service request for evidence, no work has been performed. 
On appeal, the petitioner asserts that renovations cannot begin because it "needs the beneficiary['s] assistance 
in doing so." 
Upon review, the petitioner's assertion is not persuasive. 
Title 8 C.F.R. § 214.2(1)(3)(v)(A) requires L-1 "new office" petitions to prove that "sufficient physical 
premises to house the new office have been secured." In this case, the petitioner has secured office space which 
needs to be completely renovated and furnished. Coupled with the petitioner's failure to provide any evidence of 
an investment in the U.S. entity, it has not been established that the petitioner has secured "sufficient" physical 
premises. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. 
Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.