dismissed L-1A Case: Gas Stations

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
PUBLIC co Services 
File: EAC 08 004 53432 Office: VERMONT SERVICE CENTER Date: ,guN 1 2 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 110 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the 
specific requirements. All motions must be submitted to the ofice that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
F. Grissom 
Chief, Administrative Appeals Ofice 
EAC 08 004 53432 
Page 2 
DISCUSSION: The Director, Vermont Service Center denied the nonimmigrant petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a New Jersey corporation established in June 2007, states that it 
intends to operate multiple gas stations. It claims to be a subsidiary of F.N. Exports (Pvt) Ltd., located in 
Pakistan. The petitioner seeks to employ the beneficiary as general manager of its new office in the United 
States for a period of three years. 
 1 
The director denied the petition on three separate and independent grounds. Specifically, the director 
determined that the petitioner had failed to establish: (1) that the U.S. company and the foreign employer have 
a qualifying relationship; (2) that the beneficiary has been employed by a qualifying entity abroad in a 
managerial or executive capacity for at least one continuous year in the three-year period preceding the filing 
of the petition; or (3) that the U.S. company would employ the beneficiary in a primarily managerial or 
executive capacity within one year of the approval of the petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner submits a brief statement 
on Form I-290B, Notice of Appeal or Motion. Counsel asserts that the evidence submitted establishes that the 
beneficiary has been and will be employed in a primarily managerial or executive capacity by the 
preponderance of the evidence standard, and suggests that the director unfairly based his decision on the 
nature of the petitioner's business. 
Counsel stated on Form I-290B that he would submit a brief and/or additional evidence to the AAO within 30 
days of filing the appeal. Counsel filed the appeal on September 15, 2008 and, as of this date, no additional 
brief or evidence has been received. Accordingly, the record will be considered complete.2 
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. 
' Pursuant to the regulation at 8 C.F.R. 5 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
2 
 The AAO contacted counsel by facsimile on May 26,2009 to advise him that the record does not contain the 
brief or evidence that counsel intended to submit, and to afford him an opportunity to resubmit any timely 
filed evidence. As of this date, counsel has not responded to the correspondence. 
EAC 08 004 53432 
Page 3 
The regulation at 8 C.F.R. 5 214.2(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. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(1) 
 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. 
EAC 08 004 53432 
Page 4 
The first issue addressed by the director is whether the petitioner established that the U.S. company and the 
foreign entity have a qualifying relationship. To establish a "qualifying relationship" under the Act and the 
regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer 
are the same employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as 
"affiliates." See generally section 101 (a)(15)(L) of the Act; 8 C.F.R. 5 2 14.2(1). 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualzfying organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (I)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee[.] 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
* * * 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
The regulation at 8 C.F.R. 5 214.2(1)(1)(ii)(H) defines the term "doing business" as: 
Doing business means the regular, systematic and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent or 
office of the qualifying organization in the United States and abroad. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on October 3, 2007. The petitioner 
stated on Form 1-129 that it is a subsidiary of Z.N. Exports (Pvt) Ltd., located in Pakistan. The petitioner indicated 
that the beneficiary has been employed by this company since 2002. 
' EAC 08 004 53432 
Page 5 
In support of the claimed parent-subsidiary relationship, the petitioner submitted a copy of its stock certificate #1 
issuing all 1,000 shares of the petitioner's authorized common shares to Z.N. Exports (Pvt) Ltd. on June 12,2007, 
the date of incorporation. The petitioner also submitted a copy of its stock transfer ledger, which indicated that the 
company has only issued one stock certificate. 
As evidence that the foreign company is doing business, and as evidence of its financial status, the petitioner 
submitted: (1) a bank statement for "Z.N. Textile Pvt. Ltd." issued by Union Bank Limited in April 2001 for the 
year ended December 31, 2000; (2) the income tax return filed by Z.N. Textiles (Pvt.) Ltd. for the 1999-2000 
assessment year; and (3) copies of Bills of Lading and other business documents for Z.N. Exports (Pvt) Ltd. 
which were all from the year 2000. 
The director issued a request for additional evidence (RFE) on December 28, 2007, in which he advised the 
petitioner that the evidence submitted does not establish that the foreign entity, Z.N. Exports (Pvt.) Ltd., is doing 
business as defined in the regulations. Accordingly, the director requested that the petitioner submit additional 
evidence to establish that the foreign entity has been and will be doing business, including: (1) documentary 
evidence of the foreign entity's business activities for the past year to include contracts, purchase orders, invoices, 
Bills of Lading, etc.; (2) a detailed description of the type of business operated by the foreign entity, with 
corroborating documentation; and (3) photographs of the interior and exterior of the foreign entity's business 
premises. 
In addition, as evidence of the size of the investment in the U.S. entity and the financial status of the foreign 
entity, the director requested copies of the foreign entity's audited financial statements and tax returns for the last 
three years, and documentation of the transfer of any funds between the foreign and U.S. companies. 
In response to the RFE, the petitioner submitted copies of bank statements from 2006 and 2007 for "Emjay 
Exports Pvt. Ltd.," as well as evidence of this company's business activities for the period 2003 through May 
2005, including copies of invoices and shipping documents. The petitioner also submitted photographs of the 
interior of a textile factory, an exterior photograph of a gate which bears the name "Z.N. Fibers (Pvt.) Ltd.," and 
an interior door which reads "Z.N. Textiles (Pvt) Ltd." Finally, the petitioner submitted copies of the 
beneficiary's pay statements since June 2005, all of which identify "Emjay Exports Pvt. Ltd." as the employer. 
According to the information on the statements, the beneficiary joined this company in June 2005. 
In a letter dated March 22, 2008, the petitioner stated: "We are 100% owned by Z.N. Exports (pvt) Ltd. of 
Pakistan. It has a division by the name of "Emjay Exports." The petitioner did not submit the requested tax returns 
for the foreign entity, or evidence of any funding provided by the foreign entity for the U.S. company. 
The director denied the petition on August 13,2008, concluding that the petitioner did not establish that the U.S. 
entity has a qualifying relationship with the beneficiary's foreign employer. In denying the petition, the director 
noted that the petitioner failed to submit evidence that the beneficiary's claimed foreign employer and the 
petitioner's claimed parent company, Z.N. Exports (Pvt) Ltd., is doing business. The director further noted that, 
while there is some evidence that the beneficiary's employer may be Emjay Exports (Pvt) Ltd., the petitioner did 
not submit documentation establishing that this company has a qualifLing relationship with either Z.N. Exports or 
EAC 08 004 53432 
Page 6 
the U.S. company. The director emphasized that the petitioner's unsupported assertion that Emjay Exports is a 
"division" of Z.N. Exports, was not sufficient. 
On appeal, counsel for the petitioner neglects to address this issue. Accordingly, the director's decision will be 
affirmed and the appeal will be dismissed. 
As noted by the director, there is no evidence that the petitioner's claimed parent company, Z.N. Exports (Pvt) Ltd 
is doing business as defined in the regulations, and therefore, it is not a qualifying organization. The petitioner's 
suggestion that the company does business through a "division" is not sufficient. As noted by the director, the 
petitioner provided no documentation to establish that Emjay Exports has a valid subsidiary or affiliate 
relationship with Z.N. Exports, or evidence that it is a division of that company. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Since the petitioner's only stock certificate is issued to Z.N. 
Exports, the petitioner must establish that that Z.N. Exports is doing business in order to establish the claimed 
parent-subsidiary relationship. 
Furthermore, the petitioner did not submit the requested evidence of ongoing business activities, including 
invoices for the previous year and copies of recent tax returns, for either company. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
tj 103.2(b)(14). The non-existence or other unavailability of required evidence creates a presumption of 
ineligibility. 8 C.F.R. tj 103.2(b)(2)(i). 
Finally, the AAO further notes that documentation submitted with respect to the claimed parent company refers to 
Z.N. Textiles (Pvt) Ltd. and Z.N. Fabric (Pvt.) Ltd. The petitioner has not provided evidence that these two 
entities and Z.N. Exports (Pvt) Ltd. are one and the same company. 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). 
The second issue addressed by the director is whether the petitioner established that the beneficiary has been 
employed by a qualifying entity abroad in a primarily managerial executive capacity for at least one continuous 
year during the three years preceding the filing of the petition. See 8 C.F.R. 5 214.2(1)(3)(iii) and 8 C.F.R. tj 
2 14.2(1)(3)(v)(B). 
The petitioner indicated at the time of filing that the beneficiary has served as general manager of Z.N. Exports 
(Pvt) Ltd. since March 2002. The petitioner submitted an employee list for Z.N. Exports indicating that it 
employs two executives (a chief officer and director) and six office staff, including the beneficiary, an export 
manager, a chief accountant, a finance manager, a purchase manager and an employee in charge of stitching. As 
noted above, the petitioner did not submit evidence that the foreign entity has been doing business. The most 
recent evidence of business activities was from January 2001. 
EAC 08 004 53432 
Page 7 
In the RFE issued on December 28, 2007, the director requested, inter alia, additional evidence to establish that 
the beneficiary has been employed by a qualifying organizationin a managerial or executive capacity for at least 
one year within three years preceding the filing of the petition. The director requested evidence of employment to 
include the beneficiary's last annual tax return and tax withholding statement, if applicable; copies of payroll 
documentation reflecting the beneficiary's period of employment and salary; and other unequivocal evidence 
establishing the beneficiary's period of employment with the foreign entity. 
The director further requested a letter from the foreign employer describing the nature of the beneficiary's 
employment including his current position title, a complete position description, his date of hire and salary, and an 
outline of all positions he has held. Finally, the director requested an organizational chart for the foreign entity, 
complete job descriptions for the beneficiary and all employees he supervised, and additional information 
regarding the beneficiary's level of authority within the company. 
In response, the petitioner submitted copies of "salary slips" issued by Em-Jay Exports (Pvt.) Ltd. for the months 
of June 2005 through February 2007. The salary slips indicate that the beneficiary joined the company in June 
2005 and has held the title "general manager" since that time. The petitioner did not submit a copy of the 
beneficiary's individual tax return or the requested letter from the foreign entity. 
The petitioner stated in its letter dated March 22, 2008 that the beneficiary has been employed by the foreign 
entity as "Operations Manager," and, as noted above, indicated that Emjay Exports is a "division" of K.N. 
Exports. The petitioner stated that the beneficiary manages the employees identified on the original employee list 
for K.N. Exports submitted at the time of filing, and provided brief descriptions for the positions of Export 
Manager, Chief Accountant, Finance Manager, Purchase Manager and Stitching in Charge. The petitioner did not 
describe the beneficiary's duties with the foreign entity other than noting that he spent all of his time managing 
these employees and reporting to the president and vice president. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary has been 
employed by a qualifying entity in a managerial or executive capacity for one continuous year within three years 
preceding the filing of the petition. The director again noted that the record does not establish that either K.N. 
Exports or Em-Jay Exports is a qualifying entity. The director also emphasized that the petitioner failed to 
provide the requested letter from the foreign employer describing the length and nature of the beneficiary's 
employment with the foreign entity. 
On appeal, counsel for the petitioner states: "We believe that the petitioner has demonstrated by a preponderance 
of the evidence that [the beneficiary] performed in a managerial or executive capacity with the foreign entity for a 
continuous period of at least one year.'' 
Upon review, counsel's assertion is not persuasive. First, as discussed above, the petitioner has not established 
that either K.N. Exports (Pvt) Ltd. or Em-Jay Exports (Pvt.) Ltd. is a qualifying organization and for that reason, 
the petitioner has failed to satisfy the evidentiary requirement at 8 C.F.R.8 214.2(1)(3)(iii). 
Second, the petitioner has submitted no explanation to clarify its inconsistent claims regarding the identity of 
the beneficiary's foreign employer. The petitioner initially stated that the beneficiary has been employed by 
' EAC 08 004 53432 
Page 8 
Z.N. Exports (Pvt) Ltd. since March 2002, and submitted an employee list identifying him and his claimed 
subordinates as employees of that company. In response to the WE, the petitioner submitted evidence that 
the beneficiary is on the payroll of Em-Jay Exports (Pvt) Ltd., but provided no explanation other than noting 
that this entity is a "division" of K.N. Export. The petitioner nevertheless indicated that the beneficiary 
manages the same five managers included on the K.N. Exports employee list, but fails to explain why he 
would do so if he is the general manager of Em-Jay Exports. The record is devoid of evidence that the 
beneficiary's claimed subordinates are actually employed by an active business entity, or by the same entity 
that is now claimed to employ the beneficiary. 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 59 1. 
Finally, even if the petitioner had established through supporting evidence the true identity of the beneficiary's 
foreign employer and its status as a qualifying organization, the record remains devoid of any meaningful 
explanation of the nature of the beneficiary's employment with the foreign entity, and therefore there would 
be no basis to conclude that he was employed in a primarily managerial or executive capacity as those terms 
are defined at section 101(a)(44) of the Act. The petitioner's claim that the beneficiary held the title of 
"general manager" or "operations manager" is insufficient to establish the beneficiary's eligibility. The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1 108 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. Cir. 1990). The petitioner's failure to submit a letter from the 
foreign entity or the detailed position description requested in the RFE will not be excused. 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). 
For all of these reasons, the petitioner has failed to establish that the beneficiary has been employed by a 
qualifying organization in a primarily managerial or executive capacity for one continuous year within three 
years preceding the filing of the petition. For this additional reason, the appeal will be dismissed. 
The third issue addressed by the director is whether the petitioner established that the 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. 5 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; 
EAC 08 004 53432 
Page 9 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the .day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 10 1(a)(44)(B) of the Act, 8 U.S.C. $ 1 10 l(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction fiom higher level executives, the board 
of directors, or stockholders of the organization. 
At the time of filing, the petitioner stated that it employs four workers and seeks to employ the beneficiary in the 
position of general manager. The petitioner indicated that it intends to operate a retail business and submitted 
evidence that it has entered a lease agreement with Getty Petroleum Marketing, Inc. to operate a gas station 
located at 3205 Hudson Avenue in Union City, New Jersey. The petitioner submitted photographs of a full- 
service Lukoil gas and service station. The petitioner also submitted copies of its cigarette retail dealers license, 
certificate of authority, and business registration certificate issued by the State of New Jersey. 
The petitioner did not submit a letter describing the beneficiary's proposed duties, a business plan, or other 
information regarding the proposed nature of the office describing the scope of the entity, its organizational 
structure, and its financial goals. The petitioner also failed to submit evidence of the size of the investment in 
the United States entity. See generally, 8 C.F.R. 5 2 14.2(1)(3)(v)(C). 
In the RFE issued on December 28, 2007, the director instructed the petitioner to submit: (1) a copy of its 
business plan for commencing operations, giving specific dates for each proposed action for the next two 
years; (2) a comprehensive description of the beneficiary's proposed duties; (3) evidence to show how the 
U.S. company will grow to be of sufficient size to support a managerial or executive position within one year; 
(4) a description of the personnel of the new office including the number of employees, job titles, job duties 
and salaries and wages to be paid; and (5) evidence of the size of the United States investment. The director 
EAC 08 004 53432 
Page 10 
also requested evidence to establish that the Lukoil gas station pictured in the photographs is the premises 
located at 3205 Hudson Avenue in Union City, New Jersey. 
In its letter dated March 22,2008, the petitioner stated that the beneficiary will perform the following duties: 
1) Supervision of existing employees - 55% 
2) Recruiting and interviewing new employees - 10% 
3) Investigation of potential new locations - 10% 
4) Checking financial and tax records for the stores - 20% 
5) Miscellaneous duties and travel time - 15% 
The petitioner further stated: 
[The beneficiary] will be the Operations Manager of our enterprise. [He] will be primarily 
involved in supervising the overall operation of the organization. 
He will direct and coordinate activities of subordinate managerial personnel involved in 
operating retail chain stores: He will interview and select individuals to fill managerial 
vacancies. He will maintain employment records for each manager and terminate 
employment of store managers whose performance does not meet company standards. 
Further, he will direct, through subordinate managerial personnel, compliance of workers 
with established company policies, procedures, and standards, such as safekeeping of 
company funds and property, personnel and grievance practices, and adherence to policies 
governing acceptance and processing of customer credit card charges. He will inspect the 
premises of assigned area stores to ensure that adequate security exists and that physical 
facilities comply with safety and environmental codes and ordinances. 
He will regularly review operational records and reports of store managers to project sales 
and to determine store profitability. [The beneficiary] will coordinate the sales and 
promotional activities of store managers and analyze the marketing potential of new and 
existing store locations and recommend additional sites or deletion of existing area stores. He 
will negotiate with vendors to enter into contracts for merchandise and determines allocations 
to each store manager. 
The petitioner indicated that the U.S. company employs a directorlpresident and a vice president, who will serve 
as the beneficiary's direct supervisor. Briefly the petitioner stated that the president "directs and oversees the 
overall operation," hires top level managers, "plans and implements the overall direction of the company," and is 
responsible for financial relations and interfacing with accountants and attorneys. The petitioner stated that the 
vice president "oversees the overall status of the company on a daily basis," and spends the majority of his time 
supervising the beneficiary's position and performing the duties of the president in his absence. 
' EAC 08 004 53432 
Page 11 
The petitioner indicated that the beneficiary would directly supervise the company's two location managers who 
"perform the duties normally associated with the management of a retail outlet," including recruiting, 
interviewing, training and supervising subordinate staff, resolving customer problems, handling inventory control, 
and making bank deposits. The petitioner stated that it employs two assistant managers who assist the location 
manager with their duties, prepare bank deposits and tax reports, and recruit and supervise clerks and cashiers. 
Finally, the petitioner stated that it employs four clerks/cashiers who interact directly with customers. 
The petitioner submitted an organizational chart depicting the beneficiary's responsibility over the staff of two 
existing locations and two future locations that would be similarly staffed. 
The petitioner did not address the director's request for a business plan or evidence of the size of the United States 
investment. Instead, the petitioner stated: "Our company is already active and is generating sufficient income to 
support itself and to provide for expansion and to pay the proffered wage to [the beneficiary]." 
The director denied the petition, concluding that the petitioner did not establish that the United States operation, 
within one year, will support an executive or managerial position. The director emphasized that the petitioner 
submitted no evidence in support of its claim that it has already grown, or would grow, to a size sufficient to 
support the beneficiary's proposed position. The director noted that the petitioner failed to submit a copy of its 
business plan or any evidence to establish whether the business is expected to achieve any additional growth 
within one year. 
On appeal, counsel submits the following statement on Form I-290B: 
The petitioning company has a gross annual income of approximately $2,000,000.00 and has 8 
employees. Certainly an enterprise of this size needs someone to run it. [The beneficiary] as 
Operations Manager of the company would be that person. The job description provided with the 
petition shows that he would be primarily engaged in managerial or executive duties. This is 
what is required for an L-1A and he meets that requirement. It is unfair and not consistent with 
the statute to say that the nature of this business is such that it would not need a manager. The 
statute does not discriminate against types of businesses. 
Counsel asserts that the denial is "against the weight of the evidence," and contends that the petitioner has met its 
burden of proof by the preponderance of the evidence standard. 
Upon review, counsel assertion's are not persuasive. The petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity within one year. 
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 
EAC 08 004 53432 
Page 12 
managerial position within one year of the approval of the petition. See 8 C.F.R. 3 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. The petitioner must also establish that 
the beneficiary will have managerial or executive authority over the new operation. See 8 C.F.R. 5 
2 14.2(1)(3)(v)(B). 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andlor services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target 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 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefore. Most importantly, the business plan must be credible. 
Id. 
Here, the petitioner has not adequately described or documented the intended scope of the U.S. office, its 
financial goals and its anticipated organizational structure after one year, or the size of the investment in the 
United States entity. 
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. 5 214.2(1)(3)(ii). 
 The petitioner's 
description of the job duties must clearly describe the duties that will be performed by the beneficiary and 
indicate whether such duties will be either in an executive or managerial capacity. Id. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 3 1 10 l(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
EAC 08 004 53432 
Page 13 
lOl(a)(44)(A)(iv) of the Act; 8 C.F.R. 8 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 214.2(1)(1)(ii)(B)(3). 
Here, the petitioner indicates that the beneficiary will devote a total of 65 percent of his time to recruiting, 
supervising and coordinating the activities of managerial personnel, specifically, retail storelgas station 
managers. The AAO acknowledges that if the petitioner established through the submission of corroborating 
evidence that it will be, within one year, operating multiple gas stations, each headed by a bona fide manager 
or supervisor and with sufficient staff to perform the day-to-day operations of each location, then the 
beneficiary might qualify for L-1A classification as a personnel manager. 
However, there is no evidence in the record to support the petitioner's claim that the U.S. company already 
employs eight employees and has gross sales of $2 million, or that it is in the process of opening two 
additional locations. The only documentary evidence submitted establishes that the petitioner has leased and 
obtained a franchise agreement for a single gaslservice station located in Union City, New Jersey. There is no 
evidence that the petitioner has leased or purchased a second location and no evidence that it has hired the 
eight employees depicted on its organizational chart. Nor does the record contain any bank statements, 
financial records or evidence of business activities already being conducted in the United States, other than 
photographs of one gas station. 
The AAO acknowledges that the petitioner appears to have purchased an existing business that was already 
operational, and its circumstances may therefore be different from those of a new office that is truly a "start- 
up" enterprise. If the petitioner chooses to rely on its current operational status to establish the beneficiary's 
eligibility for L-1A classification, then it is reasonable to expect the petitioner to submit evidence to 
corroborate its claimed organizational structure, business activities and financial status. 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). Counsel's claims on appeal 
regarding the petitioner's staffing structure and financial status are also insufficient. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Nevertheless, the petitioner is still a "new office" as that term is defined in the regulations, and its failure to 
provide documentary evidence in response to the director's request for a business plan and evidence of the 
investment in the U.S. company further undermines the AAO's ability to evaluate the petitioner's claims 
regarding the beneficiary's proposed employment. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 8 103.2(b)(14). 
Since there is no evidence in the record to corroborate the petitioner's claimed staffing levels, the existence 
and operation of its second location, or evidence to support its claims that it can and will open additional 
locations, the AAO cannot find that the beneficiary will be primarily performing managerial duties as claimed 
EAC 08 004 53432 
Page 14 
by the petitioner. Again, the petitioner has documented that it leases one gas station, and the AAO will base 
its analysis on the staffing of this business. 
Although the gas station includes a service center and provides and performs state inspections, the petitioner 
does not claim that it employs or will employ mechanics. The photographs submitted also show that it is a 
full-service station where customers do not pump their own gas. Given the nature of the business, the AAO is 
not persuaded that two cashiers/clerks, an assistant manager and a manager are actually sufficient to staff the 
outlet during all of its operating hours. The petitioner already claims to employ a president and vice president 
who are senior to the beneficiary's proposed position, and has not documented its need for a third tier of 
management to oversee the one gas station. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and those of his or her subordinate employees, the 
nature of the petitioner's business, the employment and remuneration of employees, and any other facts 
contributing to a complete understanding of a beneficiary's actual role in a business. The evidence must 
substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement in an 
organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not 
probative and will not establish that an organization is sufficiently complex to support an executive or 
manager position. An individual whose primary duties are those of a first-line supervisor will not be 
considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the 
employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's proposed 
subordinates are supervisors or managers, notwithstanding the job title of "store manager" or "location 
manager." Instead, the record indicates that the beneficiary's subordinates, would likely perform the actual 
day-to-day tasks of operating the gas station. The petitioner has not provided evidence of an organizational 
structure sufficient to elevate the beneficiary to a supervisory position that is higher than a first-line 
supervisor of non-professional employees. Pursuant to section 101(a)(44)(A)(iv) of the Act, the beneficiary's 
position does not qualify as primarily managerial or executive under the statutory definitions. 
Further, the AAO notes that, even if the petitioner did establish through submission of evidence that it would 
operate multiple gas stations, the claimed staffing of one manager, one assistant manager and two cashiers per 
station would not reasonably fulfill the staffing needs of each location, depending on the size of the location, 
the services it provides (mechanical services, convenience store, full service pumps, prepared foods, etc.), and 
its actual operating hours. Again, the petitioner's claims are undermined by its failure to provide either 
evidence relating to its current operations or a viable business plan outlining the exact number of locations it 
will open, the types of employees it will hire and the nature of the services it will provide. 
Contrary to counsel's assertion on appeal, the director did not unfairly discriminate against the petitioner 
because it operates a gas station. Rather, the director's decision was primarily based on the petitioner's failure 
to provide evidence required by the regulations at 8 C.F.R. 5 214.2(1)(3)(v)(C) and failure to submit a 
complete response to the RFE issued on December 27,2008. 
' EAC 08 004 53432 
Page 15 
For all of the above reasons, the petitioner has not established that the beneficiary will be employed in a 
primarily managerial or executive capacity within one year, or that the U.S. company could support such a 
position. For this additional reason, the appeal will be dismissed. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 29 1 of the Act, 8 U.S.C. 136 1. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.