dismissed L-1A Case: Grocery

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PtmttccOpy 
DATE: MAY 1 3 2011 Office: VERMONT SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and inunigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § I 10 I (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
I f you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § I03.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Vennont Service Center, denied the nonimmigrant visa petition. 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 a nonimmigrant 
intracompany transferee pursuant to section 10 I (a)( IS)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § IIOI(a)(IS)(L). The petitioner, a New York corporation established in Sel'telmber 
~ a grocery and butcher shop. It claims to be an affiliate 
_ located in Hyderabad, India. The petitioner seeks to employ the beneficiary as its president and 
general manager for a period of three years.' 
The director denied the petition on two independent and alternative grounds, concluding that the petitioner 
failed to establish: (I) that there is a qualifYing relationship between the U.S. company and the beneficiary's 
prior foreign employer; and (2) that the beneficiary will be employed in the United States 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. On appeal, counsel asserts that the petitioner submitted adequate evidence 
of ownership of the U.S. company, and contends that the director had no basis for requiring additional 
documentation related to the beneficiary's acquisition of the U.S. company. Counsel further asserts that the 
director erred by not adjudicating the matter as a "new office" petition. Counsel submits a brief, but no 
additional evidence, in support of the appeal. 
I. The Law 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section IOI(a)(IS)(L) of the Act. Specifically, a qualifYing organization must have employed the 
beneficiary in a qualifYing managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Fonn 1-129 shall be 
accompanied by: 
I The petitioner initially indicated on the Fonn 1-129, Petition for a Nonimmigrant Worker, that the 
beneficiary is not coming to the United States to open a new office, but indicated in response to the director's 
request for evidence that it is in fact a "new office" as defined in the regulations at 8 C.F.R. 214.2(1)(1 )(ii)(F). 
The director ultimately adjudicated the matter as a "new office" petition pursuant to 8 C.F.R. § 214.2(1)(3)(v). 
Pursuant to 8 C.F.R. § 214.2(l)(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. 
Page 3 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifYing organizations as defined in paragraph (l)(I)(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 himlher 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. § 2l4.2(1)(3)(v) 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)(I)(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 ofthe foreign entity. 
As a preliminary matter, we note that the petitioning company was incorporated in the State of New York in 
June 2007, and the petitioner claims to have acquired ownership of the company in February 2008. The 
petitioner filed the instant petition on March 10,2008. Pursuant to 8 C.F.R. § 214.2(l)(I)(ii)(F), a "new 
Page 4 
office" means an organization which has been doing business in the United States through a parent, branch, 
affiliate or subsidiary for less than one year. The director appropriately adjudicated the petition as a "new 
office" petition pursuant to the regulations at 8 C.F.R. § 214.2(1)(3)(v). 
II. The Issues ou Appeal 
A. Qualifying Relationship 
The first issue addressed by the director is whether the petItIOner established that it has a qualitying 
relationship with the beneficiary's foreign employer. To establish a "qualitying 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. § 214.2(1). 
The pertinent regulations at 8 C.F.R. § 214.2(1)( I )(ii) define the term "qualitying organization" and related 
terms as follows: 
(G) Qualifying organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) Meets exactly one of the qualitying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (1)(1 )(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. 
(L) Affiliate means 
Page 5 
(1) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or 
proportion of each entity. 
The petitioner indicated on the Form 1-129, Petition for a Nonimmigrant Worker, that it is an affiliate of 
Jamia Arabia Darussalam Educational Society, located in India, based upon the beneficiary's 100 percent 
ownership of both companies. 
As evidence of the beneficiary's ownership of the foreign entity, the petitioner submitted a "Certificate of 
"'lLlIJ!; that the was established on 9, 1988 in Hyderabad, India under 
the The petitioner submitted a 
document dated February 1,2008 on the foreign entity's letterhead, which lists the organization's officers of 
the corporation. The beneficiary is listed as "Founder & Director." 
With respect to the U.S. company, the petitioner submitted a copy of its certificate of incorporation filed June 
20, 2007, which indicates that it is authorized to issue 200 shares of stock with no par value. The petitioner 
provided the Minutes of the Meeting of the Shareholders of the petitioning company dated January 21,2008, 
which indicates that the petitioner's shareholder, resolved to transfer 100% of the shares of the 
corporation to the beneficiary on January 21, 2008. 
The petitioner also submitted an agreement titled "Transfer of Shares" signed by_ and the beneficiary 
on January 15,2008, in which the beneficiary agreed to pay $110,000 on February 1,2008 and execute a 
promissory note in the amount of $77,734.08, in exchange for the shares. The petitioner also submitted a Bill 
of Sale dated 2008 under which _ granted the beneficiary "the premises located at_ 
in exchange for $110,000. Finally, the petitioner submitted a copy of 
a Promissory Note in which the beneficiary agreed to pay _ a total of $77,734.08 in monthly 
installments of$I,619.46, from April I, 2008 until March 1,2012. 
The director issued a request for additional evidence on March 14, 2008, in which he requested, in pertinent 
part, additional evidence to establish that the U.S. and foreign entities have a qUalifYing relationship. 
Specifically, the director requested that the petitioner submit: (I) the foreign entity's articles and certificate of 
incorporation and bylaws; (2) documentary evidence establishing the ownership and control of the foreign 
entity; (3) documentary evidence establishing the ownership and control of the U.S. entity, including the 
number of shares of stock that have been issued, the names of all shareholders, and copies of all stock 
certifications issued; (4) evidence that the promissory note has been properly filed with the appropriate 
authorities; and (5) evidence that indicates the beneficiary's name on any license, certificate or other 
documentation in the name of the petitioning entity. The director also requested additional evidence to 
establish that the foreign entity is presently engaged in the regular, systematic and continuous provision of 
goods and services, including evidence of the organization's business activities for the past year. 
In a response dated June 9, 2008, counsel for the petitioner stated that the petitioner cannot provide articles or 
incorporation or stock certificates for the foreign entity. Counsel explained: 
Page 6 
In India, there are no official documents from which the government keeps record of all the 
companies. The only document available for beneficiary's 1 is the Certificate of 
Registration assigned by Also, being that 
all companies in India are required to pay a lump sum of taxes at the end of the year, all 
companies are registered to pay their taxes. [The beneficiary 1 has provided our office with a 
Tax Receipt document issued by Most companies 
in India are only registered with the state authorities rather than the Government of India. 
Counsel further noted that the foreign entity is considered an educational institution and is therefore not 
treated like a regular business that generates income. Counsel indicated that "there are no records of fully 
stated taxes with the income and expenses of the foreign entity." Instead, the petitioner submitted a letter on 
the foreign entity's letterhead, listing the job titles of the staff and their monthly salaries. According to this 
information there are approximately 25 teachers and other staff, whose salaries are paid based on donations 
and charitable contributions. 
The petitioner submitted a receipt from the Tax Section dated 
May 3, 2005. The receipt appears to be for property taxes in the amount of Rs. 1664 for the period April I, 
2005 through March 31, 2006, and is Notice of House Tax/New 
Assessment! Amendment" for property located at The petitioner 
submitted photographs of the foreign entity, an Islamic school for boys, which reflect that this is the school's 
street address. 
With respect to the U.S. company, the petitioner submitted a copy of the U.S. company's Stock Certificate 
number two indicating that the company issued 100 shares to the beneficiary on February I, 2008. 
The director denied the petition on June 19, 2008, concluding that the evidence submitted is insufficient to 
establish the claimed qualifying relationship between the U.S. and foreign entities. The director observed that 
the petitioner failed to submit copies of all the U.S. company's stock certificates or a list of all stock 
certificates issued to date. The director further noted that the petitioner did not provide evidence that "the 
prom issory note was filed" or that the claimed transfers of funds have occurred. As such, the director 
determined that the petitioner did not adequately corroborate its claim that the beneficiary purchased the 
shares of the U.S. company. 
On appeal, counsel for the petitioner asserts that the director erred by insisting that documents surrounding 
the sale of shares in the U.S. company to the beneficiary, such as the lease, promissory note, bill of sale, and 
transfer of shares, were required to be filed with any authority in the State ofN ew York. Counsel asserts that 
the petitioner will document the change in ownership when it files its Biennial Statement with the New York 
State Board of Corporations, and has no other filing requirements. Finally, counsel contends that the 
documents submitted "would be considered viable and substantial contracts or evidence of corporate 
ownership in any court in the United States." 
Upon review, the AAO concurs with the director's conclusion that the evidence of record does not establish 
the qualifying relationship between the U.S. and foreign entities. 
Page 7 
The AAO agrees, in part, with counsel's assertion that the petitioner was not required to file certain corporate 
documents with any authority in New York State, such as an assignment of lease, bill of sale, or promissory 
note. However, counsel fails to acknowledge the other reasons given for the denial, which were valid. 
As general evidence of a petitioner's claimed qualifYing relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. Matter afSiemens Medical Systems. Inc., 19 I&N Dec. 362 (BIA 1986). Without full 
disclosure of all relevant documents, USCIS is unable to determine the elements of ownership and control. 
As ownership is a critical element of this visa classification, the director may reasonably inquire beyond the 
issuance of paper stock certificates into the means by which stock ownership was acquired. Evidence of this 
nature should include documentation of monies, property, or other consideration furnished to the entity in 
exchange for stock ownership. Additional supporting evidence would include stock purchase agreements, 
subscription agreements, corporate by-laws, minutes of relevant shareholder meetings, or other legal 
documents governing the acquisition of the ownership interest. 
As noted by the director, the petitioner failed to submit copies of all of its stock certificates, nor did it submit 
a copy of its stock certificate ledger. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). The petitioner has not submitted 
evidence that its stock certificate number one was actually canceled and thus a copy of a single stock 
certificate is insufficient to support the petitioner's claim that the beneficiary wholly owns the U.S. company. 
The director also noted in the decision that the record contains no evidence of any monetary transfers from the 
beneficiary to the U.S. company or its claimed prior stockholder, although the evidence the petitioner 
submitted indicates that the beneficiary was required to pay $110,000 plus monthly payments on a promissory 
note in order to acquire his ownership interest. The petitioner opted not to submit any additional evidence to 
address this deficiency on appeal, and instead relies upon the stock certificate #2, bill of sale, promissory note, 
and assignment of lease documentation. Therefore, the record does not contain any evidence that the 
beneficiary actually paid for his ownership interest in the company. 
The petitioner submitted evidence that the beneficiary had over $41,000 in a Chase Bank savings account as 
of November 2007. The petitioner also submitted two HSBC Deposit Receipts in the amounts of $35,000 and 
$50,000, and dated January 10, 2008 and January 18, 2008, respectively. The evidence submitted does not 
identifY the name of the account holder, the name of the person making the deposits or the source of the 
funds. The AAO concurs with the director that, absent copies of all corporate documentation related to the 
issuance of company stock, and evidence that the beneficiary actually paid for his ownership in the U.S. 
company according to the terms of the "transfer of shares" agreement, the petitioner has not established the 
claimed affiliate relationship between the U.S. and foreign entities. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Page 8 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r. 1972». Accordingly, the appeal will be dismissed. 
B. Employment in a Managerial or Executive Capacity 
The second issue addressed by the director is whether the petitioner established that the U.S. company will 
employ the beneficiary in a primarily managerial or executive capacity within one year of commencing 
operations, as required by 8 C.F.R. § 214.2(l)(3)(v)(C). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(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 IOI(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the board 
of directors, or stockholders of the organization. 

Page 9 
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 
nonnally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be perfonned. In order to qualifY for L-I nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plan 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. § 214.2(l)(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 perfonn 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. § 
214.2(l)(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: 
Id 
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, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials andlor 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. 
The petitioner indicated on the Fonn 1-129 that the U.S. company was established in 2004 and currently has 
two employees. As noted above, the petitioner did not indicate on the Fonn 1-129 that the beneficiary will be 
employed in a new office. In a letter dated March 7, 2008, counsel for the petitioner described the U.S. 
company as a new office and stated that the beneficiary'S proposed duties as general manager and president of 
the U.S. company, as follows: 
This position entails unilateral decision making authority. The decisions made by [the 
beneficiary] will greatly impact the manner in which [the petitioner] conducts business. [The 
beneficiary] will have final say in deciding what goods will be purchased for sale as well as 
seeing that the items purchased are distributed efficiently and profitably to the customers of 
[the company]. 
Page IO 
Among [the beneficiary's] goals will be to develop new business relationships in the United 
States. He will also negotiate the sale of various meats and grocery items and will be 
responsible for marketing these products to potential and existing buyers. He will also 
evaluate meat and grocery distributors to decide who [the petitioning company] will purchase 
their inventory from. His goal is to sell every product at a rate which will generate the most 
profit for [the petitioner]. 
In addition [the beneficiary] will plan business objectives, to develop organizational policies 
to coordinate functions and operations, and to establish procedures for attaining objectives; 
review activity reports and financial statements to determine progress and status in attaining 
objectives and revise objectives and plans in accordance with current conditions; direct and 
coordinate formulation of funding for new or continuing operations to maximize productivity. 
[The beneficiary 1 will also be responsible for the hiring and training of new employees. He 
will also develop [the petitioner's] recruitment efforts and policies. In addition to these 
duties, [the beneficiary] will plan and develop human resources designed to supervise and 
evaluate performance of any employees hired by [the petitioner] for compliance with 
established policies and objectives of the organization and contributions in attaining 
objectives. 
[The beneficiary's] position is a key managerial one because he has the executive experience 
of having opened other branches of [company] offices in foreign countries. He is highly 
experienced in business development and organization through the institution he has founded 
in India .... 
Even though [the beneficiary] is more than qualified to perform the tasks involved in the sale 
of goods, he will not involved be involved [sic] in the performance of these procedures on a 
day-to-day basis. [The beneficiary] will hire additional employees once he receives 
authorization to work in the United States to perform these tasks. [The beneficiary] will 
directly supervise all future employees. He will direct his efforts towards the further 
expansion of the company in the U.S., training, and hiring future employees. It is possible 
that he may assist in the completion of certain projects when needed. 
In the request for evidence issued on March 14,2008, the director instructed the petitioner to submit: (1) a 
comprehensive description of the beneficiary's proposed duties; (2) a complete list of the U.S. employees 
which includes their names, position titles, position description, and breakdown of the number of hours to be 
devoted to each of the employee's job duties on a weekly basis, including one for the beneficiary; (3) 
additional evidence of the management and personnel structure of the U.S. entity; (4) evidence of the 
financial status of the U.S. entity; (5) a copy of the latest U.S. corporate income tax return filed by the 
company; (6) copies of the U.S. company's IRS Forms 941, U.S. Quarterly Federal Income Tax Return, for 
the last four quarters; (7) evidence to show how the beneficiary will be relieved from performing non­
managerial duties; and (8) photographs of the interior and exterior of all premises secured for the U.S. entity. 
In response, counsel clarified that the petitioner intended to file a "new office" petition, and that it is therefore 
unreasonable for the director to request evidence that employees have been hired or evidence that the business 
Page 11 
is thriving financially. The petitioner acknowledged that "although there have been previous owners of the 
corporation, these owners and their business practices/records have naught to do with the petitioner and his 
plans for the operation of this business." The petitioner submitted a copy of the company's IRS Form 1120S, 
U.S. Income Tax Return for an S Corporation, which indicates that the company achieved gross receipts or 
sales of$126,594 in 2007 and paid no salaries, wages, labor costs or compensation to officers. 
The petitioner submitted a letter dated June 9, 2008 in which it further described the beneficiary's proposed 
duties and the proposed staffing of the U.S. entity. The petitioner indicated that the beneficiary "wishes to 
hire a purchasing manager, marketing manager and store manager in the near future to assist him with his 
managerial responsibilities." The petitioner stated that the purchasing manager will be responsible for 
training butchers and ensuring that they adhere to New York State Department of Health Regulations, 
checking the quality and freshness of meat, and purchasing quality meat at the best price from third-party 
agents. 
The petitioner indicated that the marketing manager will be researching competition in the community and 
reporting to the beneficiary; finding Islamic religious institutions to which the company will donate some of 
the business's profit; and exploring neighboring communities for good locations to expand the grocery and 
meat business. Finally, the petitioner indicated that the store manager will manage the day-to-day operations, 
oversee the work of employees, create weekly work schedules, report to the beneficiary on a weekly basis, 
and maintain "responsive and cooperative relationships with supervisors, co-workers, vendors, customers, and 
other personnel." 
The petitioner indicated that the beneficiary will be responsible for: "all management decision making"; 
"management and development of budgeting, financial analysis and the hiring of employees; "developing 
long-term plans to grow sales and control costs; and "finance for working capital and specific assets." The 
petitioner further stated that, the beneficiary "will be responsible for developing and implementing store 
operational goals and objectives; initiate annual business planning and the goal setting process." 
The petitioner submitted an organizational chart indicating that the beneficiary will supervise the three 
proposed managers, and the store manager will supervise one cashier and two butchers. 
The director denied the petition, concluding that the petitioner failed to establish that the U.S. business will 
support a managerial or executive position within one year of the approval of the petition. In denying the 
petition, the director noted that the petitioner did not submit evidence to establish when the proposed 
managers will be hired, or that they would be in place within one year. The director further noted that, a 
review of the record reveals that the petitioner acquired an active business which presumably must have some 
staff in place. The director observed that, based on 2007 IRS Form 1120S, the business does not appear to 
operate at a level that would support the proposed staff within one year. Finally, the director noted that the 
petitioner failed to provide photographs depicting the operation of the entity. 
On appeal, counsel asserts that it is "hard to believe that the Service has not recognized that this application is 
a new office petition." Counsel makes no further reference to the director's conclusions with respect to the 
beneficiary's proposed employment capacity in the United States. 
Page 12 
Upon review, we affinn the director's detennination that the petitioner has not established that the beneficiary 
will be employed in a primarily managerial or executive capacity within one year. This finding is based 
primarily on the petitioner's failure to provide a description of the beneficiary's proposed duties that 
establishes that such duties will be primarily managerial or executive in nature, and the failure to establish the 
scope of the organization and the proposed staffing levels of the U.S. entity within one year. Contrary to 
counsel's assertions on appeal, the director did in fact ultimately adjudicate this matter as a new office 
petition. Given that the petitioner initially indicated on the Form 1-129 that the company was established in 
2004, has two employees, and is not a new office, it was not unreasonable for the director to request 
additional evidence pertaining to existing employees and the financial status of the company. If the petitioner 
has additional evidence to submit in support of its new office petition, the AAO would have reviewed it on 
appeal, as the request for evidence was not written specifically to the requirements at 8 C.F.R. 
§ 214.2(I)(3)(v). The petitioner has not supplemented the record on appeal and counsel appears to be unaware 
that the director appropriately adjudicated the petition as a new office petition. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. Beyond the required description of the job duties, USCIS 
reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's proposed organizational structure, the duties of the beneficiary's 
proposed subordinate employees, the petitioner's timeline for hiring additional staff, the presence of other 
employees to relieve the beneficiary from perfonning operational duties at the end of the first year of 
operations, the nature of the petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. The petitioner's 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 perfonn qualifying duties. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
The position description submitted at the time of filing the petition suggested that, while the beneficiary 
would hold discretionary decision-making authority over the operations of the petitioning company, he would 
also be performing a number of non-managerial duties associated with the day-to-day activities of operating a 
grocery store. For example, the petitioner stated that the beneficiary will "negotiate the sale of various meats 
and grocery items," "will be responsible for marketing these products to potential and existing buyers," and 
will "evaluate various meat and grocery distributors to decide who [the petitioner] will purchase their 
inventory from." Based on these duties, it is evident that the beneficiary would be directly involved in the 
company's purchasing, sales and marketing activities, duties that have not been shown to be managerial or 
executive within the context of a retail business. 
The petitioner described the remainder of the beneficiary's duties in overly broad tenns that failed to identify 
what specific managerial or executive tasks the beneficiary would perfonn as the president and general 
manager of the petitioning company. The petitioner noted that the position entails "unilateral decision making 
authority," and that the beneficiary will "plan business objectives," "develop organizational policies to 
coordinate functions and operations," "establish procedures for attaining objectives," and "review objectives 
and plans." Many of these duties merely paraphrase the statutory definition of executive capacity. See section 
lOJ(a)(44)(B) of the Act. Conclusory assertions regarding the beneficiary's employment capacity are not 
Page 13 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden 
of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The AAO cannot accept 
an ambiguous position description and speculate as to the related managerial or executive duties to be 
performed. 
Thus, while several of the duties described by the petitioner would generally fall under the definitions of 
managerial or executive capacity, the lack of specificity raises questions as to the beneficiary's actual 
proposed responsibilities. Furthermore, the petitioner indicated that the beneficiary would perform non­
qualifying duties associated with the company's purchasing, sales and marketing functions. Based on the 
initial evidence, the director was unable to determine whether the claimed managerial duties constitute the 
majority of the beneficiary's duties, or whether the beneficiary will primarily perform non-managerial 
administrative or operational duties. The petitioner's description of the beneficiary's job duties did not 
establish what proportion of the beneficiary's duties would be managerial in nature, and what proportion 
would be non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
The director reasonably requested that the petitioner submit a comprehensive description of the beneficiary's 
proposed tasks, along with a breakdown of the number of hours he will devote to each of his duties on a 
weekly basis. The petitioner failed to provide the requested breakdown of the position description in response 
to the RFE. In addition, when responding to the RFE, the petitioner eliminated the purchasing, sales and 
marketing tasks included in the initial position description, and indicated that the beneficiary's main 
responsibility will be "management and development of budgeting, financial analysis and the hiring of 
employees," along with "developing long-term plans," and "developing and implementing store operational 
goals and objectives." In sum, the initial description appeared to have the beneficiary doing more of the 
actual work, while the second iteration of the job has the beneficiary managing more of the actual work done 
in the petitioner's operation. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). The 
information provided by the petitioner in its response to the director's request for further evidence did not 
clarify or provide more specificity to the original duties of the position, but rather added new generic duties to 
the job description. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Overall, the position description alone is insufficient to establish that the beneficiary's duties would be 
primarily in a managerial or executive capacity, particularly in the case of a new office petition where much is 
dependent on factors such as the petitioner's business and hiring plans and evidence that the business will 
grow sufficiently to support the beneficiary in the intended managerial or executive capacity. As discussed 
above, the petitioner has the burden to establish that the U.S. company would realistically develop to the point 
where it would require the beneficiary to perform duties that are primarily managerial or executive in nature 
within one year. Accordingly, the totality of the record must be considered in analyzing whether the proposed 
duties are plausible considering the petitioner's anticipated staffing levels and stage of development within a 
one-year period. 
The petitioning company, prior to the beneficiary's claimed purchase of the company, had been operating a 
grocery store and meal shop doing business as "Indus Spice" since approximately June 2007, for lcss than one 
year. At the time of filing, it appeared that the petitioner sought to rely on the ongoing business operations 
Page 14 
rather than rather than submitting evidence of the proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals, or evidence of the size of the investment in the U.S. 
entity. See 8 C.F.R. §§ 214.2(1)(3)(v)(C)(J) and (2). The petitioner indicated on Form 1-129 that the 
company already has two employees and stated in its support letter that the beneficiary would hire additional 
employees to handle the sale of goods upon approval of the petition. However, the petitioner failed to 
document the existence of any employees already hired nor has it described in detail what duties they 
perform. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter af Saffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing 
Matter afTreasure Craft afCalifarnia, 14 I&N Dec. 190 (Reg. Comm'r. 1972)). In response to the RFE, the 
petitioner indicated that the beneficiary will hire three managers, two butchers and a cashier in the "near 
future." 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10 I (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1 10 1 (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 
101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 214.2(1)(I)(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). 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section IOI(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[tJhe termprafessian 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 af Sea, 19 I&N Dec. 817 (Comm. 1988); Matter af Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter af Shin, II I&N Dec. 686 (D.o. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by a subordinate employee. The possession of a 
bachelor's degree by a subordinate employee does not automatically lead to the conclusion that an employee 
is employed in a professional capacity as that term is defined above. 
Furthermore, the petitioner's evidence must substantiate that the duties of the beneficiary and his 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 will be 
sufficiently complex to support an executive or managerial position within one year. 
The petitioner has submitted a proposed organizational chart depicting two tiers of proposed managerial 
employees supervising a staff of two butchers and one cashier. The duties attributed to the proposed positions 
of purchasing manager, store manager and marketing manager are those the petitioner included in the 
beneficiary's own job description at the time of filing, at which time nothing was stated with respect to hiring 
additional management staff. The petitioner's stated need for four managers, two butchers and one cashier is 
Page 15 
not entirely plausible given the nature of the petitioner's retail business, particularly given that the company 
claims to currently operate with only two employees. While it has assigned many of its proposed positions 
managerial job titles, it is reasonable to believe that the petitioner has a reasonable need for more lower-level 
employees, such as cashiers and stockers, than it does managers. The petitioner has not provided credible 
evidence of a proposed organizational structure that would be sufficient to elevate the beneficiary to a 
supervisory position that is higher than a first-line supervisor of non-professional employees. Furthennore, 
the petitioner failed to provide the requested photographs of the interior and exterior of the premises secured 
for the store, which would assist USCIS in detennining the exact size, scope and nature ofthe operation. 
The AAO's analysis of this issue is severely restricted by the petitioner's failure to submit an adequate 
business plan. A review of the totality of the evidence submitted provides no documentation corroborating 
the petitioner's claims regarding the number of employees to be hired, no timeline for hiring employees, no 
evidence regarding the current financial position of the U.S. company, and no evidence regarding the 
petitioner's anticipated start-up costs and financial objectives for the first year of operations. The AAO notes 
that the petitioner's submission of a vague job description for the beneficiary and a proposed organizational 
chart falls significantly short of establishing that the company will be able to support a primarily managerial 
or executive position within a twelve-month period. The regulations require the petitioner to present a 
credible picture of where the company will stand in exactly one year, and to provide sufficient supporting 
evidence in support of its claim that the company will grow to a point where it can support a managerial or 
executive position within one year. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
165 (citing Matter of Treasure Craft of California, 14I&NDec. 190 (Reg. Comm'r. 1972)). 
The AAO does not doubt that the beneficiary will have the appropriate level of authority over the petitioner's 
business as its president and general manager. However, the definitions of executive and managerial capacity 
each have two parts. First, the petitioner must show that the beneficiary perfonns the high-level 
responsibilities that are specified in the definitions. Second, the petitioner must show that the beneficiary 
primarily perfonns these specified responsibilities and does not spend a majority of his time on day-to-day 
functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30,1991). 
Overall, the vague job description provided for the beneficiary, considered in light of the petitioner's failure to 
document its business or hiring plans and financial objectives for the first year of operations, prohibits a 
detennination as to whether the petitioner could realistically support a managerial or executive position within 
one year. For this additional reason, the appeal will be dismissed. 
C. One Year of Continuous Employment Abroad 
Beyond the decision of the director, the remaining issue in this matter is whether the petitioner submitted 
evidence that the beneficiary 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, pursuant to 8 C.F.R. 
§ 214.2(1)(3)(iii). 
The regulation at 8 C.F.R. § 214.2(1)( 1 )(ii)(A) defines "intracompany transferee" as: 
Page 16 
An alien who, within three years preceding the time of his or her application for admission 
into the United States, has been employed abroad continuously for one year by a firm or 
corporation or other legal entity or parent, branch, affiliate or subsidiary thereof, and who 
seeks to enter the United States temporarily in order to render his or her services to a branch 
of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is 
managerial, executive or involves specialized knowledge. Periods spent in the United States 
in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof 
and brief trips to the United States for business or pleasure shall not be interruptive of the 
one year of continuous employment abroad but such periods shall not be counted toward 
fulfillment of that requirement. 
(Emphasis added). 
The petitioner indicated on the Form 1-129 that the beneficiary has been employed by the foreign entity from 
July 1982 to the present, with no interruptions in employment. The petitioner also indicated that the 
beneficiary was last admitted to the United States as a B-2 visitor on November 22, 1999, and has been in the 
United States since that time, for over eight years at the time the petition was filed. The petitioner submitted a 
~eficiary's latest approval notice granting him an extension of R-1 status for employment with 
~ from May 1, 2005 through April 30, 2008. 
Counsel asserted that, in light of the above-cited definition of intracompany transferee, "the USCIS should 
take into consideration the three (3) years of [the beneficiary's] employment preceding his entry into the 
United States." 
Counsel's interpretation of the regulation at 8 C.F.R. § 214.2(1)(I)(ii)(A) is not persuasive. The cited 
regulatory provision must be read together with the regulation at 8 C.F.R. § 214.2(1)(3)(iii), which requires 
evidence that the beneficiary 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. If the beneficiary is already 
in the United States in a lawful status for a branch of the same employer, or a parent, affiliate or subsidiary 
thereof, this period of employment will not be considered interruptive of the beneficiary's continuous 
employment abroad, and USCIS will look beyond the three-year period immediately preceding the filing of 
the petition to determine whether the beneficiary meets the requirement set forth at 8 C.F.R. § 214.2(1)(3)(iii). 
A beneficiary's one year of continuous employment abroad, once established, remains continuous, despite the 
beneficiary's subsequent stay in the United States for a branch, affiliate, subsidiary, or parent of the foreign 
entity in an authorized nonimmigrant status. Logically, it follows that working for an unrelated employer for 
more than three years will in fact interrupt a beneficiary's one year of continuous employment abroad. 
In this matter, the beneficiary has spent the three or more years immediately preceding the filing of this L-IA 
petition employed in the United States in R-l status by an organization that has not been shown to be a parent, 
affiliate or subsidiary of the claimed qualifying foreign employer abroad. As such, this period of employment 
in R-l status must be considered interruptive of the beneficiary's continuous employment abroad. For this 
additional reason, the petition cannot be approved. 
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 
Page 17 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see a/so So/tane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). 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. v. United States, 229 F. Supp. 2d at 1043. 
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. [n 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. 
ORDER: The appeal is dismissed.