dismissed L-1A Case: Garment Business

P C COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 07 036 51417 Office: VERMONT SERVICE CENTER Date: FEB 2 8 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (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. 
(a& 
Robert iemann, Chief 
Administrative Appeals Office 
EAC 07 036 51417 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of "director 
and general manager" to open a new office in the United States as an L-1A nonimmigrant intracompany 
transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 
1101(a)(15)(L). The petitioner, a limited liability company organized under the laws of the State of Texas, is 
allegedly in the garment business. 
The director denied the petition concluding that the petitioner failed to establish that the United States 
operation will support an executive or managerial position within one year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the petitioner has established 
that the beneficiary will perform qualifying duties within one year of petition approval. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. tj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are 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. 
EAC 07 036 51417 
Page 3 
In addition, the regulation at 8 C.F.R. 8 214.2(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 primary issue in this matter is whether the intended United States operation, within one year of the approval 
of the petition, will support an executive or managerial position. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 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 tire 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 
EAC07 036 51417 
Page 4 
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 lOl(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 fiom higher level executives, the board 
of directors, or stockholders of the organization. 
In support of the petition, the petitioner submitted a document titled "Plan for Establishment of Branch of 
Guangzhou Rongji Knitting FTY Ltd in USA." This document purportedly outlines the petitioning 
organization's plan for the establishment and growth of its United States operation, which will focus on 
sweater imports and sales. The plan indicates that $50,000.00 in initial capital will be required and that the 
petitioner will hire the beneficiary, an accountant, a manager, and an undefined number of "business staff' 
members. The plan also lists the petitioning organization's current and potential customers. Finally, the plan 
lists the petitioner's "estimated sales revenues" for the next five years. However, the plan does not identify 
any competitors, does not corroborate any of its projections or analyses with objective data, does not describe 
the duties of the proposed employees, does not disclose any projected expenses, does not describe the 
petitioner's marketing, sales, and growth strategies, and does not describe with any specificity the petitioner's 
products or the proposed pricing thereof. 
The petitioner also submitted payroll documents and wage reports indicating that it currently employs four 
people. Two of the claimed employees appear to be employed in Texas (the accountant and the 
merchandising manager) and two appear to be employed in New York (merchandiser and sales manager). 
The petitioner also submitted brief descriptions of the duties of these subordinate workers. As these 
descriptions are in the record, they will not be repeated here. Generally, all four workers are described as 
performing sales or bookkeeping tasks. 
Finally, the petitioner submitted a variety of business documents indicating that the petitioner has received 
purchase orders for garments and has ordered garments fi-om abroad. 
EAC07 03651417 
Page 5 
On November 28, 2006, the director requested additional evidence. The director requested, inter alia, more 
detailed descriptions of the duties of the beneficiary's proposed subordinate staff. 
In response, the petitioner submitted an organizational chart for the proposed United States entity. The chart 
shows the beneficiary at the top of the organization directly supervising the accountant, the sales manager, the 
merchandising manager, and a secretary. The sales manager and merchandising manager are, in turn, 
portrayed as supervising subordinate sales or merchandising staff. 
The petitioner also submitted a letter dated December 18, 2006 in which the petitioner further describes the 
current and proposed staffing of the United States operation as follows: 
1. 
 Merchandising Manager: This position is responsible for - Meeting with customers 
in liaison with Sales Manager regarding purchase orders; attending fashion shows to 
keep track of fashion trends; promoting sales and deciding on prices including mark- 
ups and mark-downs based on company's budget and goals; providing samples to 
customers and confirming orders from samples made for buyers; attending fitting 
sessions to ensure garments are made correctly; monitoring material costs, labor costs 
and maximize profit margin; monitoring and supervising production teams in U.S. 
and overseas to ensure quality assurance; monitoring shipment schedules to ensure 
credibility of customers and timely payment; any other duties as assigned by the 
General Manager. 
2. 
 Sales Manager: This position is responsible for - Generating sales of the garment 
collections for the company; promoting the products manufactured by the company's 
overseas factories; meeting with customers and providing after sales services; 
monitoring sales staff and coordinating with overseas staff and factories. He will also 
oversee and direct the actual distribution and movement of products to the customers, 
coordinate sales distribution by establishing sales territories, quotas, and goals and 
establish training programs for sales representatives; analyze sales statistics gathered 
by staff to determine sales potential and inventory requirements and monitor the 
preferences of customers. He will meet with and rrecornrnend [sic] products to 
customers, based on customers' needs and interests, and set prices, availability, 
product uses, and credit terms. He will confer with the General Manager and 
Merchandising Manager to estimate or quote prices, credit or contract terms, 
warranties, and delivery dates; consult with clients after sales or contract signings in 
order to resolve problems and to provide ongoing support; monitor market 
conditions, product innovations, and competitors' products, prices, and sales. 
EAC 07 036 51417 
Page 6 
3. 
 Accountant: 
 This position is responsible for - Carrying out all accounting and 
bookkeeping duties; recording and reviewing all transactions; preparing annual 
returns, preparing quarterly and annual tax returns for the company, and staffs annual 
tax returns; preparing insurance documents required by law; payroll and payroll 
records; responsible for general ledgers, A/P, A/R; preparing financial reporting as 
needed. 
The petitioner also described its secretary and indicates that it plans to hire an additional merchandiser and a 
sales employee. Finally, the petitioner asserts that, within one year, the existing and proposed staff will 
relieve him of the need to perform non-qualifying administrative or operational tasks. 
On December 28, 2006, the director denied the petition concluding that the petitioner failed to establish that 
the United States operation will support an executive or managerial position within one year. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval. 
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. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andlor services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comrn. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target market/prospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
EAC 07 036 51417 
Page 7 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials andlor the distnbution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefor. Most importantly, the business plan must be credible. 
Id. 
For several reasons, the petitioner in this matter has failed to establish that the United States operation will 
succeed and rapidly expand as it moves away from the developmental stage to full operations, where there 
would be an actual need for a manager or executive who will primarily perform qualifying duties. The 
petitioner has failed to establish that the beneficiary will be performing primarily managerial or executive 
duties after the petitioner's first year in operation; has failed to establish that a sufficient investment has been 
made in the United States operation; and has failed to sufficiently describe the nature, scope, organizational 
structure, and financial goals of the new office. 8 C.F.R. @ 214.2(1)(3)(v)(C). 
First, as correctly noted by the director, the petitioner has failed to establish that the beneficiary will be 
performing primarily "managerial" or "executive" duties after the petitioner's first year in operation. When 
examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the proposed job duties. See 8 C.F.R. @ 2 14.2(1)(3)(ii). The petitioner's description 
of the job duties must clearly describe the duties that will be performed by the beneficiary and indicate 
whether such duties will be either in an executive or managerial capacity. Id. 
In this matter, the petitioner did not specifically describe the beneficiary's proposed duties after the start-up of 
the United States operation. While the petitioner generally described the beneficiary's duties during the first 
year in operation in the letters dated November 7, 2006 and December 18, 2006, the petitioner does not 
specifically address the beneficiary's duties thereafter. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Regardless, the descriptions provided 
are so vague that it is impossible for Citizenship and Immigration Services (CIS) discern what, exactly, the 
beneficiary will do on a day-to-day basis even during the first year in operation. For example, the petitioner 
states that the beneficiary will be "organizing and planning the development of policies and procedures." 
However, the petitioner does not specifically define these policies and procedures. The fact that the petitioner 
has given the beneficiary a managerial or executive title and has prepared a vague job description which 
includes inflated duties does not establish that the beneficiary will actually perform managerial or executive 
duties after the first year of operation. 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. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), 
aff'd, 905 F.2d 41 (2d. Cir. 1990). 
EAC 07 036 51417 
Page 8 
Likewise, the petitioner has failed to establish that, after the petitioner's first year in operation, 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 explained in the organizational chart, correspondence, 
wage reports, business plan, and job descriptions for the subordinate staff members, the petitioner asserts that 
the beneficiary will directly supervise an accountant, a sales manager, a merchandising manager, and a 
secretary. The sales manager and the merchandising manager are, in turn, portrayed as supervising 
subordinate sales or merchandising staff. However, the petitioner has not established that the merchandising 
manager and the sales manager will truly be engaged in performing supervisory duties. An employee will not 
be considered to be a supervisor simply because of a job title or because he or she supervises daily work 
activities and assignments. Rather, the employee must be shown to possess some significant degree of control 
or authority over the employment of subordinates. See generally Browne v. Signal Mountain Nursery, L.P., 
286 F. Supp. 2d 904, 907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 
(E.D. Tex. Jan. 11, 2007)). To the contrary, it appears from the job descriptions in this matter that the two 
claimed first-line supervisors will primarily perform the tasks necessary to produce a product or to provide a 
service, e.g., sales and merchandising tasks. As the business plan fails to describe the petitioner's marketing 
or sales strategies, the record is not persuasive in establishing that the organization will require a subordinate 
tier of supervisors, e.g., the sales manager, to supervise a future sales staff. Artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or managerial position. The petitioner has not established that the 
reasonable needs of the United States operation will compel the employment of a managerial or executive 
employee to oversee one or more subordinate supervisors. To the contrary, it is more likely than not that both 
the beneficiary and his staff will all primarily perform non-qualifying tasks. See generally Family, Inc. v. 
US. Citizenship and Immigration Services, 469 F.3d 13 13 (9" Cir. 2006). 
Furthermore, the record does not establish that merchandising manager, 
 is supervising, or will 
truly supervise, the existing merchandiser, -an. 
 Not only is the merchandising manager not 
described as a supervisory employee (see supra), the record indicates that the merchandising manager is 
employed in Texas while the merchandiser is in New York. Therefore, the record is not persuasive in 
establishing that the purported supervisor will truly have supervisory control over this subordinate. 
Moreover, the record is not persuasive in establishing that the subordinate employees will be "professionals." 
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 10 1(a)(32) of the Act, 8 U.S.C. 9; 1 101(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. 817 (Comm. 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 the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
EAC 07 036 51417 
Page 9 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In this matter, the petitioner has not established that a bachelor's degree is necessary to 
perform any of the duties ascribed to the subordinate workers. While the petitioner has asserted that it 
requires the possession of bachelor's degrees, this arbitrary requirement is not probative of whether the basic 
sales and merchandising tasks ascribed to the sales and merchandising managers actually require degrees or 
professional certifications. Furthermore, even assuming that the duties attached to these two subordinate 
positions could reasonably require bachelor's degrees, the petitioner has not established that these duties truly 
require the degrees possessed by the two individuals currently filling the positions. In other words, while the 
sales and merchandising managers are each allegedly in possession of engineering degrees, the record is 
devoid of evidence that these sales and merchandising positions require engineers. 
Also, the record is not persuasive in establishing that either the sales or merchandising manager has actually 
earned the equivalent of a United States bachelor's degree. First, the petitioner did not submit the sales 
manager's educational credentials even though this evidence was specifically requested by the director. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). Second, the record is devoid of evidence establishing that the 
merchandising manager's foreign credentials are equivalent to a United States bachelor's degree. Once again, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190. 
Finally, the petitioner failed to establish that the duties ascribed to the "accountant" truly require an employee 
with a degree and professional certification in accounting. Once again, the petitioner's arbitrary requirement 
that the position be filled by a certified public accountant is not probative of the position actually requiring an 
employee to have earned such a degree or certification. In this matter, the duties ascribed to the accountant 
appear to be primarily basic bookkeeping tasks that would not require the services of a certified public 
accountant. Also, importantly, the record is not persuasive in establishing that the petitioner is, or will be 
within one year, sufficiently complex to require the services of an in-house certified public accountant. 
Arbitrarily engaging an "accountant" as a W-2 employee will not establish that the beneficiary is, or will be, 
truly supervising a professional employee when the record is otherwise not persuasive in establishing that the 
petitioner truly requires these services. Therefore, the petitioner has not established that it will supervise 
professional employees. 
In view of the above, it appears that, after the first year in operation, the beneficiary will be primarily a first- 
line supervisor of non-professional employees, the provider of actual services, or a combination of both. 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 Scientolog~ International, 19 I&N Dec. 593, 604 (Comm. 1988). 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. 101(a)(44)(A)(iv) of the Act; see also Matter 
EAC 07 036 51417 
Page 10 
of Church Scientology International, 19 I&N Dec. at 604. Therefore, the petitioner has not established that 
the beneficiary will be employed primarily in a managerial capacity.' 
Similarly, the petitioner has 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 be acting primarily in an executive capacity. The job description provided 
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day 
basis. Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line 
supervisor. Therefore, the petitioner has not established that the beneficiary will be employed primarily in an 
executive capacity.2 
1 
While the petitioner has not argued that the beneficiary will manage an essential fknction of the organization, 
the record nevertheless would not support this position even if taken. 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 
101(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 function rather than performs the duties related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document what proportion of the beneficiary's duties will be managerial, if any, and what 
proportion will be non-managerial. Also, as explained above, the record establishes that the beneficiary will 
primarily be a first-line manager of non-professional employees. Absent a clear and credible breakdown of 
the time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his 
duties will be managerial, nor can it deduce whether the beneficiary will be primarily performing the duties of 
a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
2 
Counsel cited the Foreign Affairs Manual (FAM) in his brief as authority. It must be noted that the FAM is 
not binding upon CIS. See Avena v. INS, 989 F. Supp. 1 (D.D.C. 1997); Matter of Bosuego, 17 I&N 125 
(BIA 1979). The FAM provides guidance to employees of the Department of State in carrying out their 
EAC 07 036 51417 
Page 11 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because it failed to establish that an investment was made in the 
enterprise. 8 C.F.R. $ 214.2(1)(3)(v)(C)(2). In this matter, the petitioner asserts in the document titled "Plan 
for Establishment of Branch of Guangzhou Rongji Knitting FTY Ltd in USA" that $50,000.00 in start-up 
capital will be required. Counsel indicates in the letter dated November 20, 2006 that evidence of this 
$50,000.00 investment is attached to the petition as Exhibit C. Exhibit C consists of three pages of the 
petitioner's bank statements fkom October and November 2006. The statements indicate that three deposits 
totaling $25,540.94 were made during this timeframe. One deposit for $9,909.44 was apparently made by 
wire transfer by a purported customer of the petitioning organization. Two deposits totaling $15,63 1.50 were 
apparently made by wire transfer by. This evidence is insufficient for two reasons. First, the 
record is devoid of evidence establishing that these deposits were truly "investments" in the United States 
operation. Since the transferor of the $9,909.44 was a customer of the petitioner, it appears that this transfer 
was more likely than not a payment for goods or services. Second, the amount transferred is approximately 
half of what the petitioner asserts it needs as start-up capital. The petitioner does not address this 
inconsistency in the record or whether it ever received the rest of the start-up capital before the instant petition 
was filed. 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). Accordingly, the petitioner has failed to establish that the United States operation 
will support an executive or managerial position within one year for this additional reason. 
Third, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner has failed to sufficiently describe the nature, scope, 
organizational structure, and financial goals of the new office. 8 C.F.R. $ 214.2(1)(3)(v)(C)(I). As explained 
above, the petitioner's "business plan" vaguely describes the United States operation as a proposed garment 
import business. However, the plan fails to specifically describe the petitioner's proposed products, prices, 
projected expenses, competitors, or marketing and sales strategies. The plan also fails to corroborate its 
projections regarding revenue, income, or financial goals. Absent a detailed, credible description of the 
petitioner's proposed United States business operation addressing the petitioner's proposed product, marketing 
plan, staffing, and incornelexpense projections, it is impossible to determine whether the proposed enterprise 
will succeed and rapidly expand as it moves away from the developmental stage to full operations, where 
there would be an actual need for a manager or executive who will primarily perform qualifying duties. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. $ 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been 
employed in a primarily managerial or executive capacity with the foreign entity for one year within the 
-- 
official duties, such as the adjudication of visa applications abroad. 
 The FAM is not relevant to this 
proceeding. 
EAC 07 036 51417 
Page 12 
preceding three years. 8 C.F.R. 5 214.2(1)(3)(v)(B). In support of the petition, the petitioner submitted a 
vague, non-specific description of the beneficiary's duties abroad in a letter dated November 7, 2006. 
However, specifics are clearly an important indication of whether a beneficiary's duties were 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. 1 103, aff'd, 905 F.2d 4 1. Furthermore, the 
petitioner failed to describe the duties of the beneficiary's purported subordinates abroad. Although the 
petitioner submitted an organizational chart for the foreign entity, this chart fails to specifically describe the 
duties of the subordinate workers. 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. See sections 101(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 has been employed in a primarily 
managerial or executive capacity for one continuous year in the three years preceding the filing of the petition 
as required by 8 C.F.R. fj 214.2(1)(3)(v)(B), and the petition may not be approved for this 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. $ 214.2(1)(3)(vii). 
In this matter, the petitioner claims that the beneficiary owns and controls both it and the foreign employer. 
As a purported owner, the petitioner is obligated 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 establishing that the beneficiary's services will be used 
temporarily. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190). 
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. 
Beyond the decision of the director, the petitioner failed to establish that it has a qualifying relationship with 
the foreign entity. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e., one 
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 
10 1 (a)(15)(L) of the Act; 8 C.F.R. 5 2 14.2(1). If one individual owns a majority interest in the petitioner and 
the foreign employer, and controls those entities, then the entities will be deemed to be "affiliates" under the 
definition. 8 C.F.R. tj 214.2(1)(l)(ii)(L). 
EAC 07 036 51417 
Page 13 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems. Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. As ownership is a critical element of this visa classification, 
CIS may reasonably inquire beyond the issuance of paper stock or membership certificates into the means by 
which ownership was acquired. 
In this matter, the petitioner asserts in the Form 1-129 that it is 100% owned by the foreign entity. However, 
the evidence submitted by the petitioner indicates that it is 100% owned by the beneficiary. The petitioner 
offers no explanation for this fundamental inconsistency in the record. Once again, 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. at 591-92. Doubt cast on any aspect of 
the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Id. at 591. 
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity, 
and the petition may not be approved for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd, 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 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.