dismissed L-1A Case: Handbag Sales

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifying data C;:38~ ttt 
 U.S. Citizenship 
prevent d~dy unwarrank and Immigration 
in-n of mrsonal Mvac. 
File: EAC 04 250 53435 Office: VERMONT SERVICE CENTER Date: CFp 0 5 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(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. 
Robert P. Wiemann, Chief 
dministrative Appeals Office 
EAC 04 250 53435 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa and 
affirmed his decision on a subsequently filed motion to reconsider. 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 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. $ 1101(a)(15)(L). The petitioner is a New York limited liability company engaged in the distribution 
and sale of hand b 
 es manufactured by its parent company. The petitioner claims to 
be a subsidiary of 
 ., a Hong Kong corporation with branch offices in London and 
Shanghai. The petitioner seeks to employ the beneficiary as Vice President, Marketing and Sales in its new 
United States office for a one-year period. 
The director denied the petition concluding that the petitioner did not establish that, within one year, the 
beneficiary would be employed in the United States in a primarily managerial or executive capacity. The 
director subsequently granted a motion to reconsider and affirmed his decision to deny the petition. 
This timely appeal followed. 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 asserts that the director's decision was not based 
on a logical analysis of the evidence presented, and argues that the director incorrectly concluded that the U.S. 
company would not be sufficiently staffed to support the beneficiary in an executive position within one year. 
Counsel submits a brief and additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. $ 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. 
EAC 04 250 53435 
Page 3 
(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: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
At issue in the present matter is whether the petitioner established that the beneficiary will be employed by 
the United States entity in a managerial or executive capacity within one year. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 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; 
EAC 04 250 53435 
Page 4 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 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. 
The nonimmigrant petition was filed on September 3,2004. In a July 17,2004 letter appended to the petition, 
the petitioner described the beneficiary's proposed duties as follows: 
The Vice President, Marketing and Sales is responsible for the executive management, co- 
ordination, and implementation of the company's short term and long term international 
marketing strategies and operations to establish and develop the company's position in the 
North American market. Duties of this executive position include: (1) executive-level review 
of current marketing strateges and operations; (2) management of market research and 
analysis associated with new and continuing business and market expansion opportunities; (3) 
supervision of professionals engaged in the compilation of data on competitors in the fashion 
industry to help in the development of business and financial strategies; (4) managerial co- 
ordination of product registration and development, technical development, licensing, and 
marketing; and (5) service as a liaison officer to other executive and managerial level 
personnel in [the petitioner's group]. The Vice President, Marketing and Sales has direct and 
indirect managerial responsibility over approximately 20 managerial, professional and 
support personnel, and exercises discretionary authority over operating budgets of 
approximately USD750,000.00 per year. 
EAC 04 250 53435 
Page 5 
The petitioner stated on Form 1-129 that it had four employees as of the date of filing the petition and 
submitted a lease for its New York office. The petitioner indicated that the beneficiary would work in the 
New York office and the "Los Angeles, California area." The petitioner's July 17, 2004 letter referenced the 
company's "imminent plans to expand to Los Angeles." 
The director issued a request for additional evidence on September 14, 2004, in part instructing the petitioner 
to submit: (1) a copy of the U.S. company's business plan, giving specific dates for each proposed action for 
the next two years, starting with the date of filing the petition, and including the anticipated volume of 
business, gross income projections and staffing issues; and (2) evidence to show that within one year, the 
beneficiary would be relieved from performing the non-managerial, day-to-day operations involved in 
producing a product or providing a service, and that the company will grow to be of sufficient size to support 
a managerial or executive position. 
In a response dated October 5, 2004, the petitioner included a copy of its business plan for the 2004 to 2006 
years, which states that the U.S. company currently employs four sales and design staff at its New York office 
and has managed to retain and supply major U.S. retailers with its products, while also focusing on obtaining 
brand licenses for more established retail groups. The business plan references the company's intention to 
establish a West Coast based office and showroom, noting that the office will rely on the resources in New 
York and Hong Kong, who can provide leads on potential customers. The business plan indicates that the 
petitioner expects the West Coast operation to account for 10-20% of U.S. business. 
With respect to the staffing of the West Coast operation, the business plan indicates that the office would be 
run on "basic support staff' with further recruitment occurring gradually over the first 12 months of operation, 
until a team of "suitably qualified management and sales executives" is in place. The business plan calls for 
the beneficiary to serve as "Head of Marketing USA" in charge of the West Coast and describes her proposed 
duties as: 
Initially responsible for set-up of office and organization of staff in West Coast operation. 
Creating introductory marketing plans for attainment of new customers. 
Set up of accounts initially. 
Staffing the new operation with suitably experienced account executives and defining their job 
descriptions. 
Over seeing [sic] other account executives at management level and setting targets for them to 
attain. 
Eventually, once West Coast branch is fully functional, traveling frequently between both USA 
offices and overseeing all US based account executives. 
The business plan indicates that office support staff and a junior sales executive would be hired in October 
2004, an additional full-time sales executive would be hired in February 2005 to relieve the beneficiary from 
day-to-day account management, and a sales team of three full-time sales executives, one junior sales person 
and one full-time secretary would be in place by September 2005. The business plan included requirements 
and brief job descriptions for the proposed positions, noting that the account executives would require three 
years of fashion retailing experience and would be responsible for managing West Coast accounts, reaching 
EAC 04 250 53435 
Page 6 
specific sales targets, conducting regular sales presentations, and attending accessory and fashion exhibitions. 
The business plan indicates that junior sales executives will be required to have two years of experience in the 
industry, and would assist account executives with administration, order processing, record keeping and 
controlling samples. The petitioner submitted payroll records confirming employment of four employees in 
its New York office as of September 2004, but did not further describe that office's current or projected 
staffing levels. 
The director denied the petition on October 19, 2004, concluding that the petitioner had not established that 
the beneficiary would be employed in a primarily managerial or executive capacity within one year. The 
director noted that most of the proposed staff would not be hired until September 2005, and determined that 
the beneficiary would not be relieved from performing non-qualifying duties within the required one-year 
timeframe. The director further determined that "the petitioner's business plan also fails to convince the 
Service that the petitioner has a viable plan through which to plot a reasonable course of action in the present 
U.S. economy." 
The petitioner subsequently filed a motion to reconsider on December 4, 2004. Counsel for the petitioner 
asserted that the petitioner's business plan was sufficiently detailed, and contended that the evidence clearly 
demonstrated the U.S. company's intention to hire additional executive, managerial and sales staff within the 
one-year period. Counsel further asserted that as of November 2004 the petitioner had sufficient staffing 
levels to allow the beneficiary to perform solely executive-level duties. The petitioner stated that it had 
recently hired a sales executive who would report to the beneficiary and had already assumed "much 
responsibility" over day-to-day account operations. 
Counsel also objected to the director's reference to the petitioner's business plan, noting that the director 
failed to mention what factors andlor conditions exist in the economy that were material to the conclusion that 
the petitioner's business plan is not viable. 
The petitioner submitted a November 2004 letter from the foreign entity, noting that the U.S. company's New 
York office now operates with a staff of five employees, including an executive and a sales team of four 
people. The foreign entity indicated that the petitioner has "revised staffing issues" for the West Coast office 
and now anticipates hiring four sales executives, two junior sales executives, and an administrative assistant 
by April 2005. 
The director granted the petitioner's motion and affirmed his decision to deny the petition on February 15, 
2005. The director concluded "the Service still feels that support staff will not be added within a time frame 
that will relieve the beneficiary from performing duties that are not of a caliber associated with the 
classification sought." The director noted that the sales and secretarial staff would not be added until 
September 2005. 
The petitioner appealed the director's decision on March 11, 2005. In an appellate brief dated March 10, 
2005, counsel reiterates the arguments made on motion, and further objects to the director's determination 
that "the Service does not feel that support staff will be added within the required time frame. Counsel 
argues that Citizenship and Immigration Services (CIS) "should not base its decision on mere 'feeling,' but 
EAC 04 250 53435 
Page 7 
rather on a logical analysis of the evidence before it." Counsel also asserts that the director's determination 
was "not a logical conclusion" based on evidence that the beneficiary will be performing executive duties, and 
evidence that the petitioner "already has personnel in sales and secretarial positions who will perform [day-to- 
day] functions." 
Counsel emphasizes that the petition was filed in September 2004, and questions the director's denial on the 
basis that the petitioner would not hire additional staff until September 2005. Counsel emphasizes that the 
business plan indicates that the proposed hiring would occur within one year of the date the petition was filed 
and would begin as early as October 2004 with the hiring of "additional office staff' and a junior sales 
executive. Counsel again argues that the director provided insufficient explanation for his conclusion that the 
company would not grow to a sufficient size to support the beneficiary in an executive position. 
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not 
established that the beneficiary will be employed in a primarily managerial or executive capacity within one 
year. 
Although the appeal will be dismissed, the AAO concurs with counsel that the director based his decision, in 
part, on an improper standard. The director should not hold a petitioner to his undefined and unsupported 
view of what constitutes a "reasonable course of action in the present United States economy" or base his 
decision on a "feeling" that the company will not be sufficiently staffed within one year to warrant approval 
of the petition. The director should instead focus on applying the statute and regulations to the facts presented 
by the record of proceeding. When denying a petition, a director has an affirmative duty to explain the 
specific reasons for the denial; this duty includes informing a petitioner why the evidence failed to satisfy its 
burden of proof pursuant to section 291 of the Act, 8 U.S.C. 3 1361. See 8 C.F.R. 5 103.3(a)(l)(i). In this 
case, the director failed to articulate his basis for finding a petitioner's business plan or proposed staffing 
levels to be unreasonable. As the AAO's review is conducted on a de novo basis the AAO will herein address 
the petitioner's evidence and eligibility. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that 
the AAO reviews appeals on a de novo basis). 
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. The petitioner has consistently referred to the beneficiary 
as a "marketing executive" and the AAO notes that the director appears to have only considered whether the 
beneficiary would be employed in an executive capacity as defined at section 101(a)(44)(B) of the Act. The 
AAO will nevertheless consider whether the petitioner demonstrated that the beneficiary's responsibilities will 
meet the requirements of one or the other capacity. 
In this case, the petitioner's description of the beneficiary's proposed duties is vague and non-specific, and 
fails to convey an understanding of what managerial or executive tasks the beneficiary will perform on a day- 
to-day basis. For example, the petitioner states that the beneficiary will be responsible for management of 
market research and analysis, supervision of professionals engaged in the compilation of data on competitors, 
and "managerial co-ordination of product registration and development, technical development, licensing and 
EAC 04 250 53435 
Page 8 
marketing." Although the beneficiary is described as managing some of these activities through subordinate 
employees, the MO notes that none of the beneficiary's proposed subordinates are described as performing 
market research or analysis, compiling data on competitors, or performing non-managerial tasks associated 
with product registration, technical development, or licensing. Rather it appears that the proposed 
subordinates will primarily be engaged in handling specific assigned customer accounts, rather than 
specifically supporting the beneficiary in market research, data compilation and technical matters associated 
with the company's overall sales and marketing function. Absent an explanation regarding the specific duties 
associated with the beneficiary's responsibility for "managerial co-ordination" of product registration, 
development and licensing activities, and evidence of who would perform the lower-level market research and 
data compilation tasks to be "managed or "supervised," the MO cannot conclude that the beneficiary would 
perform primarily executive or managerial tasks with respect to these activities. 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. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The remainder of the beneficiary's job description includes responsibility for "management, co-ordination and 
implementation" of the company's international marketing strategies and developing the company's position 
in the North American market, and "executive-level review of current marketing strateges and operations." 
The petitioner does not, however, define what specific efforts the beneficiary will undertake to achieve these 
broad objectives. Reciting the beneficiary's vague job responsibilities and broadly-cast business objectives is 
not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to answer a critical question in this case: What will the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103,1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The business plan submitted in response to the director's request for evidence also included a brief description 
of the duties to be performed by the beneficiary in establishing the petitioner's West Coast operations, 
including responsibility for setting up an office, creating introductory marketing plans, setting up accounts, 
staffing the operation, and overseeing and setting targets for account executives. While this description 
suggests that the beneficiary will have the appropriate level of authority over the establishment and operation 
of the new branch office, it does not assist in establishing that the beneficiary's actual duties would be 
primarily managerial or executive within one year. The petitioner submitted no evidence that the petitioner 
has begun to search for a location for its West Coast office, although the business plan indicates that it intends 
to establish "a well designed showroom and display facility," nor is there any evidence to establish that the 
company has sought authorization to transact business in California. The fact that the petitioner does not 
appear to be prepared to commence business operations on the West Coast raises serious questions regarding 
the company's ability to carry out its proposed hiring plan for the office to be managed by the beneficiary. 
Whether the beneficiary will be employed in a managerial or executive capacity turns on whether the 
petitioner has sustained its burden of showing that her duties will be "primarily" managerial or executive. See 
sections 101(a)(44)(A) and (B) of the Act. Counsel's assertion on motion that the beneficiary would be able 
to perform solely executive level duties as of November 2004 is not sufficient. The petitioner characterizes 
the beneficiary's duties as solely executive in nature, but fails to provide evidence as to how her time will be 
EAC 04 250 53435 
Page 9 
allocated among her various responsibilities. This failure of documentation is important because as noted 
above, the record does not establish that the beneficiary would have subordinates to relieve her from 
performing non-qualifying tasks associated with market research, data compilation, licensing, product 
registration and "technical development" activities. If the beneficiary herself will perform these non- 
qualifying tasks, this brings into question how much of the beneficiary's time could actually be devoted to 
managerial or executive duties. As stated in the statute, the beneficiary must be primarily performing duties 
that are managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Furthermore, the petitioner 
bears the burden of documenting what portion of the beneficiary's duties will be managerial or executive and 
what proportion will be non-managerial or non-executive. Republic of Transkei v. INS, 923 F.2d 175, 177 
(D.C. Cir. 1991). Absent a clear and credible breakdown of how the beneficiary will allocate her time, the 
record does not demonstrate that the beneficiary will function primarily as a manager or executive. 
Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 9 101(a)(44)(A)(ii) of the Act. The petitioner has not established that the 
employees to be hired would possess or require a bachelor's degree, such that they could be classified as 
professionals. Nor has the petitioner shown that any of the proposed employees would supervise subordinate 
staff members or manage a clearly defined department or function of the petitioner, such that they could be 
classified as managers or supervisors. 
Counsel's assertion on appeal that the company intends to hire "additional and managerial level staff, as well 
as sales representatives," within one year is not supported by evidence in the record, and is in fact 
contradicted by the petitioner's business plan, which proposed the hiring of only sales executives, junior sales 
executives and an administrative employee. The unsupported statements of counsel on appeal or in a motion 
are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 
188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Similarly, there is no evidence 
to support the petitioner's statement in its July 17, 2004 letter that the beneficiary would manage 
approximately 20 managerial, professional and support staff in her proposed role. While the petitioner 
indicates that the beneficiary would eventually manage staff in the petitioner's New York office, the record 
contains no evidence regarding the staffing of that office, other than a statement that it had four employees as 
of the date of filing, nor is it clear that the beneficiary would manage additional New York-based staff by the 
end of the first year of operations. Again, 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. The petitioner has not shown that the beneficiary's subordinate employees would be, supervisory, 
professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
Beyond the required description of the job duties, CIS reviews the totality of the record when examining the 
claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, 
the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, 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. 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 
EAC 04 250 53435 
Page 10 
performed by employees at the executive or managerial level and that often the full range of executive 
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 its business plans, proposed staffing 
structure, 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. 8 
214.2(1)(3)(v)(C). This evidence should demonstrate a realistic expectation that the enterprise will succeed 
and rapidly expand as it moves away from the developmental stage to full operations, where there would be 
an actual need for a manager or executive who will primarily perform qualifying duties. 
As discussed above, the evidence submitted by the petitioner does not demonstrate that the company's West 
Coast operation is poised to begin operations immediately and expand to the point where it could support the 
beneficiary in a primarily executive or managerial position within one year. The petitioner indicated that it 
intended to hire "office support staff' and a junior sales executive in October 2004, a sales executive in 
February 2005, and three sales executives, one junior sales person and one secretary in September 2005. 
However, it is reasonable to assume that the hiring of staff for the company's West Coast office is dependent 
upon actually locating suitable premises for the company's offices and showroom, negotiating a lease, making 
any necessary modifications to the leased premises, obtaining authorization to transact business in California 
from state authorities, obtaining business licenses, and performing other tasks related to establishing the 
office. As there is no evidence that the petitioner has proceeded with any of these preliminary activities to 
establish its West Coast operations, the petitioner's proposed time fi-ame for staffing the office does not seem 
plausible. 
On appeal, counsel asserts that the petitioner hired a sales executive in October 2004, "who has assumed 
much responsibility over day-to-day account operations," but there is no evidence to suggest that this 
employee would be working in the West Coast office. The petitioner also submits on appeal a November 
2004 letter from the foreign entity referencing its revised staffing plans for the West Coast operations, which 
states that all of the proposed staff would be hired by March 2005, with two additional sales executives added 
in April 2005. However, as of March 2005, there is no evidence that the petitioner has actually established 
the West Coast office, much less hired the five proposed employees. In addition, although the petitioner has 
implied that the beneficiary would supervise some staff in the New York office eventually, the record remains 
devoid of any description or evidence identifying the specific employees she would supervise, or when she 
would be expected to undertake responsibility for staff at both offices. Again, 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. 
Finally, as discussed above, even if the petitioner did fill the proposed sales/account executive positions and 
secretary position within the first year of operations, the record does not establish that the proposed staff 
would relieve the beneficiary from performing non-qualifying duties associated with market research and 
analysis, data compilation and technical matters related to product development, licensing and registration. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
EAC 04 250 53435 
Page 11 
1991 WL 144470 (9th Cir. July 30, 1991). Here, the evidence does not establish that the beneficiary will be 
relieved from performing day-to-day functions within one year of approval. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed 
primarily in a qualifying managerial or executive capacity withn one year. For this reason, the appeal will be 
dismissed. 
Beyond the decision of the director, the petitioner has not submitted evidence to establish that it has a qualifying 
relationship with the foreign 
 8 C.F.R. 214.2(1)(3)(i). The petitioner asserted that it is a 
wholly-owned subsidiary of 
- 
Hong Kong corporation, which in turn is owned by the 
beneficiary's foreign employer, 
 The petitioner did not submit documentary evidence of 
the U.S. company's ownership to corroborate the claimed parent-subsidiary relationship. 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. at 165. Absent evidence that the foreign entity owns and 
controls the U.S. entity, the AAO cannot conclude that a qualifying relationship exists. 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 
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 also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.