dismissed L-1A Case: Food Service

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship , 
and Immigration 
Services 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 1 0 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1101(a)(15)(L) 
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. 
d 
Administrative Appeals Office 
WAC 04 228 50276 
Page 2 
DISCUSSION: On July 6,2005, the Director of the California Service Center denied the nonimmigrant visa 
petition. Counsel to the beneficiary appealed this denial to the Administrative Appeals Office (AAO), and, on 
November 6, 2006, the AAO rejected the appeal pursuant to 8 C.F.R. 8 103.3(a)(2)(v)(A)(l) as having been 
filed by a representative of an unrecognized party to the proceeding, i.e., the beneficiary. On January 3,2007, 
a motion to reconsider the AAO's decision was filed with the California Service Center. On September 6, 
2007, the AAO dismissed the motion pursuant to 8 C.F.R. § § 103.5(a)(l)(i), 103.5(a)(l)(iii)(C), 103.5(a)(3), 
and 103.5(a)(4). 
On December 5, 2007, the petitioner and the beneficiary filed an action with the United States District Court 
for the District of Nevada. The parties allege, inter alia, that the AAO improperly rejected the appeal. 
Although the AAO was obligated to reject the appeal pursuant to 8 C.F.R. § 103,3(a)(2)(v)(A)(l) as having 
been filed by a representative of an unrecognized party to the proceeding, and thereby lacked the authority 
under the regulations to consider the merits of the appeal, the AAO agreed on December 18,2007 to exercise 
its discretion under 8 C.F.R. $ 103.5(a)(5) to reopen the proceedings on its own motion. However, upon its 
review of the record, the AAO determined that the new decision to be prepared upon reopening may be 
unfavorable to the affected party. Accordingly, pursuant to 8 C.F.R. § 103.5(a)(5)(ii), the petitioner was 
given notice on December 18, 2007 that it was permitted to file a brief directly with the AAO within thirty 
(30) days. Counsel submitted his brief to the AAO on January 18, 2008. In considering the petitioner's 
appeal, the AAO will consider the initial petition and supporting documents, the petitioner's response to the 
director's Request for Evidence, the director's decision, the beneficiary's original appeal to the AAO, the 
AAO's prior decisions in this matter, the petitioner's motion, and counsel's brief received on January 18,2008. 
operating a coffee and refreshment kiosk. The petitioner seeks to extend the employment of the beneficiary 
as its manager 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. § 1101(a)(15)(L). The beneficiary was granted a one- 
year period of stay to open a new office in the United States, and the petitioner now seeks to extend the 
beneficiary's stay. 
The director denied the petition after concluding (1) that the petitioner failed to establish that the beneficiary 
will be employed primarily in a managerial or executive capacity; and (2) that the petitioner failed to establish 
that it is a qualifying organization. 
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 to the petitioner asserts that the director 
erred, that the beneficiary's duties are primarily those of a function manager, and that the petitioner is a 
Nevada corporation, not a sole proprietorship, which is a qualifying organization. 
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 
WAC 04 228 50276 
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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 whtch 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 
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. tj 2 14.2(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 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualitling 
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 first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
WAC 04 228 50276 
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a primarily managerial capacity. ' 
Section 101 (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 whlch the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
In the Form 1-129, the petitioner describes the beneficiary's proposed duties as ll[o]versee future growth of 
[the petitioner] and marketing." It also claims to have two employees. In a letter dated August 5, 2004, the 
petitioner alleges that the beneficiary will serve in a "managerial capacity, specifically to oversee the 
establishment of U.S. enterprises." The petitioner claims that the beneficiary "will manage and direct 
operations and oversee the U. S. staffing." 
The petitioner also submitted a letter dated July 15, 2004 from the general manager of support services of 
Mountain View Hospital, the location of the petitioner's single-location "coffee shop." The author indicates 
that the beneficiary and his spouse "have been operating the coffee shop here at Mountain View Hospital for 
the past two years." The author fiuther indicates that the beneficiary and his spouse "open every day on time, 
provide great service, and close only after putting in a long day" and that both the beneficiary and his spouse 
"are people who have made the effort to interact in a positive way with staff and customers." 
'As the director concluded that the petitioner failed to establish that the beneficiary will be employed in a 
"managerial" capacity, and as counsel appears to restrict the beneficiary to the managerial classification on 
appeal, the AAO will not address whether the petitioner has established that the beneficiary will be employed 
in an executive capacity in its review of the director's decision. However, as noted infra, the AAO will 
nevertheless conclude beyond the decision of the director that the petitioner has also failed to establish that 
the beneficiary will primarily perform executive duties in the United States. 
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On January 26, 2005, the director requested additional evidence. The director requested, inter alia, an 
organizational chart for the United States operation, including job descriptions for all employees; quarterly 
wage reports for all employees for the preceding four quarters; a payroll summary; and evidence that the 
beneficiary will supervise and control the work of other supervisory, professional, or managerial employees, 
or will manage an essential function within the organization, or a department or subdivision of the 
organization. 
In response, counsel submitted a letter dated April 15,2005 in which he describes the beneficiary's proposed 
duties as follows: 
[The beneficiary] manages and directs the company in the United States. He has authority to 
manage the business, to hire and fire U.S. workers, to enter into contracts, and has wide 
latitude in discretionary decision-making. [The beneficiary] has the authority to determine 
the hours the enterprise is open, to place orders and change orders for the business, he has 
authority over the menu offered and he has authority to collect revenues for the company, 
hire an accountant, and to establish a recordkeeping system to comply with the federal 
accounting policies required of each business. [The beneficiary] has the responsibility to 
contact other hospitals to seek new locations to expand the business. 
The petitioner also submitted an organizational chart for the United States operation. The chart shows the 
beneficiary supervising a "food handlerlsales person" and a "food and beverage preparation" employee. The 
petitioner's wage reports indicate that, in 2004, it employed three people. 
On July 6, 2005, the director denied the petition. The director concluded that the petitioner failed to establish 
that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties are primarily those of a function manager. 
Upon review, counsel's assertions are not persuasive. 
Title 8 C.F.R. 9 214.2(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 Citizenship and 
Immigration Services (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 fiom primarily performing 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. Future 
business expansion and hiring plans may not be considered. 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. Corntn. 1978); Matter of Katigbak, 14 I&N Dec. 
45, 49 (Cornm. 1971). In the instant matter, it has not been established that the United States operation will 
employ the beneficiary in a predominantly managerial position. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look frst to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). In this matter, the petitioner's 
WAC 04 228 50276 
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description of the beneficiary's job duties fails to establish that the beneficiary will act in a "managerial" 
capacity. While the petitioner has described the beneficiary as being the sole "managerial" employee of the 
coffee shop, it has not been established that he will primarily perform "managerial" duties. To the contrary, 
the record establishes that it is more likely than not that the beneficiary will primarily perform non-qualifying 
administrative or operational tasks in his operation of a single-location, three-employee coffee shop in a 
hospital. For example, the petitioner indicated in the Form 1-129 that the beneficiary performs "marketing" 
and will oversee "future growth." However, marketing tasks are not qualifying managerial duties, and the 
petitioner fails to specifically describe what, exactly, the beneficiary will do in overseeing "future growth." 
Furthermore, general managerial-sounding duties such as "manages and directs the company" are not 
probative of the beneficiary performing qualifying duties. The fact that the petitioner has given the 
beneficiary a managerial title and ascribed inflated job duties to hm does not establish that the beneficiary 
will actually perform managerial 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 Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 1 90 (Reg. Cornrn. 1 972). 
Moreover, the record is not persuasive in establishing that the petitioner has an organizational complexity 
requiring the employment of an employee who will primarily perform "managerial" duties as defined by the 
Act and the regulations. As indicated above, the petitioner claims to employ the beneficiary and two 
subordinate employees in its operation of a single-location coffee shop. As explained by the general manager 
of support services of the hospital which hosts the petitioner's coffee shop, both the beneficiary and his spouse 
operate the coffee shop, put in long days, and "are people who have made the effort to interact in a positive 
way with staff and customers." Accordingly, it appears that the beneficiary is more likely than not primarily 
performing non-qualifying administrative or operational tasks in his operation of the coffee shop along side 
his subordinate staff. See generally Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 13 13 
(9" Cir. 2006). 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 10 1 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). The petitioner has not established that the reasonable needs of the United States operation, a single- 
location, three-employee coffee shop, compel the employment of a managerial employee to oversee a 
subordinate tier of employees dedicated to relieving the beneficiary from performing the non-qualifying tasks 
inherent to the operation of the business. 
A particularly instructive judicial precedent decision in this matter is the above cited Family, Inc. v. US. 
Citizenship and Immigration Services, 469 F.3d 1 3 1 3 (9" Cir. 2006). In that decision, the beneficiary was the 
"president" of a six-employee dry cleaning enterprise. CIS denied the petition in question and determined 
that, in light of all the evidence submitted, it was likely that the beneficiary would "be involved in the 
performance of routine operational activities of the business" rather than in "managing" the business. Id. at 
13 15. Upon review, the United States Court of Appeals concluded that the evidence did not compel a 
contrary conclusion. Id. at 13 16. The Court indicated that, in reviewing the relevance of the number of 
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employees a petitioner has, CIS "may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager." Id. at 13 16 (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); see also Fedin Bros. Co. v. Suva, 905 F.2d 
41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). In this matter, the petitioner's single-location, 
three-employee coffee shop is not dissimilar fi-om the dry cleaning business considered by the court in 
Family, Inc. Both businesses lack the organizational and business complexity which could reasonably require 
the employment of a manager dedicated to performing primarily "managerial" duties rather than working 
side-by-side with fellow employees in the operation of a small business. 
Furthermore, the petitioner has also failed to establish that the beneficiary will supervise and control the work 
of other supervisory, managerial, or professional employees, or will manage an essential function of the 
organization. As asserted in the record, the beneficiary will directly supervise two food and beverage 
workers. However, these employees are not described as having supervisory or managerial responsibilities. 
To the contrary, it appears that these employees will primarily perform the tasks necessary to provide a 
service. In view of the above, the beneficiary would appear to be primarily a first-line supervisor of non- 
professional workers and the provider of actual services. A managerial 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 10 1 (a)(44)(A)(iv) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills required to 
perform the duties of the subordinate positions, the petitioner has not established that the beneficiary will 
manage professional employees.2 
Finally, the petitioner has failed to establish that the beneficiary will manage an essential function of the 
organization. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 10 1 (a)(44)(A)(ii) of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must furnish a written job offer that clearly describes the duties to be performed in 
managing the essential function, i.e., identify the function with specificity, articulate the essential nature of 
the function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential 
function. See 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary manages the fbnction rather than performs the duties related to 
2 
In evaluating whether the beneficiary will manage 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. 8 1101(a)(32), states that "[tlhe termprofession 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. 8 17 (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). 
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the function. In this matter, the petitioner has not provided evidence that the beneficiary will manage an 
essential function. As explained above, the record establishes that it is more likely than not that the 
beneficiary will primarily be a first-line supervisor of non-professional employees and will perform non- 
qualifying operational or administrative tasks in the operation of the coffee shop. The beneficiary will 
perform the tasks related to the function rather than "manage" the function. As the record does not establish 
that a majority of the beneficiary's time will be managerial, it has not been established that he will perform the 
duties of a function manager. See generally IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999).) 
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity, and the petitioner will be denied for that rea~on.~ 
3 
It is noted that counsel to the petitioner cited several unpublished opinions, including Matter of Harrison 
Pacific, Inc., WAC 92 192 5 1 184 (AAO Feb. 16, 1994), in support of his contention that the beneficiary is 
primarily employed as a function manager. In that decision, the AAO determined that the petitioner had 
established that the beneficiary in question was managing an essential function of the organization. However, 
counsel's reliance on this decision is misplaced. First, counsel has furnished no evidence to establish that the 
facts of the instant petition are analogous to those in the unpublished decision. Second, while 8 C.F.R. 
§ 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the adrmnistration of 
the Act, unpublished decisions are not similarly binding. Third as explained above, the petitioner has not 
established that the beneficiary is primarily employed in a managerial capacity. This is paramount to the 
analysis, and a beneficiary may not be classified as a manager or an executive if he or she is not primarily 
performing managerial or executive duties regardless of the number of people employed by the petitioner. 
Therefore, as the petitioner has not established ths essential element, the citied unpublished decisions would 
be irrelevant even if they were binding or analogous. 
4 
While not directly addressed by the petitioner or the director, the AAO notes that the petitioner has also 
failed to establish that the beneficiary will act in an "executive" capacity. The statutory definition of the term 
"executive capacity" focuses on a person's elevated position within a complex organizational hierarchy, 
including major components or functions of the organization, and that person's authority to direct the 
organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must have the ability to 
"direct the management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate level of employees for the beneficiary to direct, and the beneficiary 
must primarily focus on the broad goals and policies of the organization rather than the day-to-day operations 
of the enterprise. An individual will not be deemed an executive under the statute simply because they have 
an executive title or because they "direct" the enterprise as the owner or sole managerial employee. The 
beneficiary must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. For the same reasons indicated above, the petitioner has failed to establish that the 
beneficiary will act primarily in an executive capacity. As explained above, it appears that the beneficiary 
will be primarily employed as a fust-line supervisor and will perform the tasks necessary to produce a product 
or to provide a service. Therefore, beyond the decision of the director, the petitioner has not established that 
the beneficiary will be employed primarily in an executive capacity. 
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The second issue in the present matter is whether the petitioner has established that the petitioner is a 
qualifying organization. 
The regulation at 8 C.F.R. § 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." 
 See also 8 C.F.R. tj 2 14.2(1)(14)(ii)(A). 
Title 8 C.F.R. tj 2 14.2(i)(l)(ii)(G) defines a 
"qualifying organization" as a firm, corporation, or other legal entity which "meets exactly one of the 
qualifying relationshrps specified in the definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section" and "is or will be doing business." "Subsidiary" is defined in pertinent part as 
a corporation "of which a parent owns, directly or indirectly, more than half of the entity and controls the entity." 
"Doing business" is defined in part as "the regular, systematic, and continuous provision of goods and/or 
services. " 
In this matter, the petitioner asserts that it is 100% owned by the foreign employer, a Bulgarian business 
entity. The petitioner also asserts that it is a Nevada corporation which is "doing business" in the United 
States by operating a coffee shop in a hospital. However, in support of its assertion that it is "doing business," 
the petitioner submitted a copy o'f'the beneficiary's 2003 Form 1040, U.S. Individual Income Tax Return. The 
tax return includes Schedule C, Profit of Loss From Business, which indicates that the beneficiary and his 
spouse operated the "coffee shop" as a "sole proprietorship" in 2003. The record is devoid of evidence that 
the petitioner, a Nevada corporation, operated the coffee shop, or conducted any business, in 2003. The 
petitioner also indicates that the petitioner had no employees in 2003. 
On July 6, 2005, the director denied the petition. The director concluded that, because the petitioner is 
actually a "sole proprietorship" owned and operated by the beneficiary, and is not a separate legal entity, the 
petitioner is not a qualifying organization eligible for the benefit sought. 
On appeal, counsel argues that the director erred. Counsel asserts that the petitioner is a Nevada corporation, 
which is a "separate entity under the law," and not a sole proprietorship. In support of his claim, counsel 
submitted a copy of the petitioner's 2004 Form 1120-A, U.S. Corporation Short-Form Income Tax Return, 
which indicates that the petitioner, a corporation, both had revenue and paid salaries in 2004. The instant 
petition was filed on August 16,2004. 
Upon review, counsel's assertion that the petitioner has established that it is a "qualifying organization" is not 
persuasive. 
As noted above, the petitioner asserts that it is "doing business" as a Nevada corporation. While the director 
was correct in concluding that the underlying record indicates that the coffee shop in question was operated 
by the beneficiary and his spouse as a sole proprietorship in 2003, the AAO agrees with counsel that the 
petitioner has sufficiently established on appeal that it did business as a Nevada corporation in 2004, which is 
when the instant petition was filed. The petitioner's Form 1120-A, U.S. Corporation Short-Form Income Tax 
Return, along with the quarterly wage reports, indicate that the coffee shop apparently "switched" from being 
operated as a sole proprietorship to being operated as a corporation in 2004. Consequently, the director's 
reasoning that the petitioner was doing business as a sole proprietorshp in August 2004 will be withdrawn. 
WAC 04 228 50276 
Page 10 
However, for the reasons outlined below, the record is not persuasive in establishing that the petitioner, a 
Nevada corporation, is a qualifying organization, and the petition will still be denied for this reason. 
The petitioner repeatedly claims to be a Nevada corporation 100% owned and controlled by a Bulgarian 
business entity, the beneficiary's alleged foreign employer. The record, however, contains a fundamental 
inconsistency undermining this claim and casting a cloud of uncertainty over the petitioner's ownership and 
control. As noted above, the petitioner submitted as evidence of its existence a copy of its 2004 Form 1 120- 
A, U.S. Corporation Short-Form Income Tax Return. However, the instructions to the 2004 Form 1 120-A 
clearly prohibit its use for United States corporations having "foreign shareholders that directly or indirectly 
own 25% of more of its stock." I.R.S. Form 1120-A (Instructions) (2004). As the petitioner claims to be 
100% owned by a foreign shareholder, a Bulgarian business entity, the petitioner's use of the Form 11 20-A 
indicates that this averment in the Form 1-129 is inaccurate. The record is devoid of evidence clarifying this 
fundamental inconsistency and fails to establish whom, if not the foreign employer, owns and controls the 
petitioner. 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). In view of the above, it cannot be concluded that the petitioner and the foreign 
employer have a qualifying relationship. 
Furthermore, the record is devoid of evidence establishing that the foreign employer owns and controls the 
petitioner. The record does not contain copies of stock certificates, a stock ledger, organizational documents, 
or other materials which could establish that the foreign entity owns a controlling interest in the petitioner. 
Once again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 1 4 I&N Dec. 1 90. 
Accordingly, as the petitioner has failed to establish that it is a qualifying organization, the petition may not 
be approved for this reason. 
Beyond the decision of the director, the petitioner has failed to establish that has been "doing business" during 
the previous year. 8 C.F.R. 5 2 14.2(1)(14)(ii)(B). 
As noted above, the instant petition seeks to extend a previously approved "new office" petition. The initial 
new office petition was approved for a one-year period, from August 20, 2003 until August 19, 2004. The 
instant extension petition was filed on August 16, 2004. As evidence that it did business during its first year, 
the petitioner submitted the beneficiary's 2003 Form 1040, U.S. Individual Income Tax Return, which 
includes Schedule C, Profit of Loss From Business. The beneficiary's tax return indicates that the beneficiary 
and his spouse operated the "coffee shopf' as a "sole proprietorship" in 2003. There is no evidence that the 
"new office" petitioner, a Nevada corporation, did business in 2003. To the contrary, it appears that the 
corporation was inactive in 2003 and failed to either do business or have employees. Therefore, the record 
indicates that the petitioner did not do business during its fust year in existence. Furthermore, even if the 
revenue reported on the beneficiary's tax return related to the petitioner, this evidence does not establish that 
the coffee shop was operated in a regular, systematic, and continuous manner in 2003. The record is devoid of 
WAC 04 228 50276 
Page 11 
invoices, business records, or other documents which could establish that the petitioner was "doing business'' 
during its frst year in operation. 
Accordingly, as the petitioner has failed to establish that has been "doing business" during the previous year, 
the petitioner is not eligible to extend the approval of its "new office," and the petition will be denied for this 
additional reason. 8 C.F.R. 5 2 14.2(1)(14)(ii)(B). 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad 
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. $8 
2 14.2(1)(3)(iii), (iv), and (v)(B). 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
managerial or executive capacity. The petitioner failed to specifically describe the beneficiary's job duties 
abroad. Specifics are clearly an important indication of whether a beneficiary's duties will be primarily 
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, afd, 905 F.2d 41. Furthermore, the 
petitioner failed to describe the duties of the beneficiary's purported subordinates abroad, if any. Absent 
detailed descriptions of the duties of both the beneficiary and his purported subordinates, it is impossible for 
CIS to discern whether the beneficiary was "primarily" engaged in performing managerial or executive duties 
abroad or whether, as with the beneficiary's employment with the United States operation, the beneficiary was 
engaged in primarily performing non-qualifying tasks inherent to the operation a small business. See sections 
10 1 (a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or 
executive capacity for one continuous year in the three years preceding the filing of the petition, and the 
petition may not be approved for ths reason. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 5 214.2(1)(3)(vii). 
In this matter, the petitioner claims to be 100% owned and controlled by the foreign employer, which is 
claimed to be 1 00% owned by the beneficiary. Although there are inconsistencies in the record which prevent 
CIS from concluding that these assertions are accurate (see supra), the petitioner's description of its 
ownership and control nevertheless obligates it to establish that the beneficiary's services will be used for a 
temporary period and that he will be transferred to an assignment abroad upon completion of the assignment. 
Id. However, the record is devoid of any evidence establishng that the beneficiary's services will be used 
temporarily. The petitioner's assertion that the beneficiary will "assume command of the central operations" 
of the organization after a three-year assignment in the United States is both not credible and not substantiated 
by any evidence. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure CraB of California, 14 I&N Dec. 190). 
WAC 04 228 50276 
Page 12 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
The previous approval of an L-1A petition does not preclude CIS from denying an extension based on a 
reassessment of petitioner's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 291 of the Act, 8 U.S.C. 8 1361. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
altemative basis for denial. When the AAO denies a petition on multiple altemative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.