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U.S. Department of Homeland Security 
20 Mass Ave., Room. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 04 267 52999 Office: VERMONT SERVICE CENTER Date: JUL 1 0 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 1 10 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. 
Administrative Appeals Office 
EAC 04 267 52999 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner is a new office that claims to be engaging in the production, marketing and sale of traditional 
handcrafted merchandise from India. It seeks to employ the beneficiary as its principal officer, and filed a 
petition to classify the beneficiary as a nonimrnigrant intracompany transferee. The director denied the 
petition, concluding the U.S. entity would not support a primarily managerial or executive position within one 
year of approval of the petition and, therefore, the beneficiary does not qualify for classification under section 
10 1(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 I 101 (a)(l5)(L). 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion, and 
forwarded it to the AAO for review. On appeal, the petitioner asserts that the beneficiary's job duties would 
be managerial in nature, and the company expects to expand its staff in the future. The petitioner submits 
additional evidence to support these assertions. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section lOl(a)(15)(L) of the Act. 
Specifically, within three years preceding the beneficiary's application for admission into the United States, 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. 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. 4 214.2(1)(3) states in part 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 hidher 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. 
Moreover, pursuant to the regulation at 8 C.F.R. 4 214.2(1)(3)(~), 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; 
EAC 04 267 52999 
Page 3 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new operation; 
(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. 
The issue in this proceeding is whether within one year of approval of the petition the beneficiary would be 
employed in the U.S. entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1 101(a)(44)(A), provides: 
The term "managerial capacity" means 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) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are 
directly supervised; 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 1 101(a)(44)(B), provides: 
EAC 04 267 52999 
Page 4 
The term "executive capacity" means 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. 
In a letter dated September 30,2004 accompanying the Form 1-129, Petition for a Nonimmigrant Worker, the 
petitioner provided the following description of the beneficiary's proposed duties in the United States: 
[The beneficiary] will devote virtually all of his time in the United States to the 
commencement and management of the U.S. business. His duties will include the creation of 
new designs from samples of raw material imported from India, corresponding with his 
Indian affiliate for bulk manufacturing, analyzing the market for new and current designs, 
customizing jewelry according to customer[sl] requirements, maintaining inventory, 
establishing new customers. 
The petitioner indicated on the Form 1-129 that it currently has two employees. In the September 30, 2004 
letter, the petitioner states that it "intends to employ a minimum of 2-3 people in its store" in addition to the 
beneficiary. 
On October 12, 2004, the director requested that the petitioner submit additional evidence to establish, among 
other things, that the petitioner will grow to be of sufficient size to support a managerial or executive position. 
Specifically, the director requested: (1) a description of the staff of the U.S. entity, including the number of 
employees, their job titles, duties and wages, and a description of the management and personnel structure of 
the U.S. operation; (2) a comprehensive description of the beneficiary's proposed duties, indicating how the 
beneficiary's duties will be managerial or executive in nature; and (3) an organizational chart for the U.S. 
entity, with complete position descriptions for all employees. 
In a response dated October 28, 2004, counsel for the petitioner described the beneficiary's anticipated duties 
as follows: 
[The beneficiary] will oversee and manage all employees. In addition, he will analyze the 
market for new and current designs, identify and procure new wholesale customers, create 
new designs for samples from raw material imported from India and send the designs back to 
India for bulk manufacturing. He will also explore the export market, evaluate the new 
employment positions, oversee recruitments and have authority to hire and fire employees. 
He will negotiate and enter into new contracts for bulk selling. Further, [the beneficiary] will 
develop a comprehensive strategic plan for a full-service, in-house communications division. 
EAC 04 267 52999 
Page 5 
He will also establish relationships with outside communications professionals to enhance 
productivity and reach in the marketplace and develop protocols for media relations and 
media training, conference and event media, targeted message development and 
communications strategies, to include popular magazines, major newspapers, television and 
radio, promotional and educational writing, community relations and rapid response to 
outside requests. 
Counsel also stated that the beneficiary will serve as vice president of the U.S. entity, and that there will be 
four proposed employees in addition to the beneficiary, including an office assistant, two sales persons, and a 
computer assistant. In the proposed organizational chart submitted by the petitioner, however, the beneficiary 
is shown as the vice president of the company with the president position above him and four positions below 
him including an artisan, an office assistant/computer programmer, and two sales persons. 
On November 10, 2004, the director denied the petition. The director determined that the record does not 
demonstrate that the U.S. entity would grow sufficiently to support a primarily managerial or executive 
position within one year of approval of the petition. Specifically, the director noted that based on the 
evidence of record, the U.S. company is very small, and while it employs only two people at the time of the 
petition, the business plan does not indicate that more employees would be hired. The director further 
observed that the beneficiary would be working at a level no higher than that of a first line supervisor, and 
would not be supervising other managerial, supervisory, or professional employees. Moreover, the director 
noted that unless the company will employ many more workers, it appears there would be insufficient staff to 
relieve the beneficiary from performing primarily non-managerial tasks. The director therefore concluded 
that the beneficiary does not qualify for L-1A classification. 
On appeal, the petitioner offers an expanded description of the beneficiary's job duties and asserts that the 
beneficiary's duties should be viewed in the context of a small start-up business. The petitioner contends that 
the beneficiary does not function as a first-line supervisor and that his responsibilities are analogous to those 
of a number of different managerial positions in a large corporation, including a business development 
manager, a production manager, a human resources manager, a business analyst and a public relations 
manager. The petitioner also asserts that business growth should increase two to three times the projections 
of the first year, and hiring needs would increase accordingly, but the petitioner offered no specific details 
regarding the anticipated expansion of the staff. 
Upon review of the record, the AAO concurs with the director's conclusion. 
 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. 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, 
organizational structure, and size of the United States investment, and thereby establish that the proposed 
enterprise will support an executive or managerial position within one year of the approval of the petition. 
See 8 C.F.R. 5 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic expectation that the enterprise 
will succeed and rapidly expand as it moves away from the developmental stage to full operations, where 
there would be an actual need for a manager or executive who will primarily perform qualifying duties. 
EAC 04 267 52999 
Page 6 
In this instance, the petitioner has not sufficiently established that within one year of approval of the petition, 
the beneficiary's responsibilities would be in a primarily managerial or executive capacity. Whether the 
beneficiary will be a managerial or executive employee turns on whether the petitioner has sustained its 
burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B) 
of the Act. While the petitioner claimed that the beneficiary would "oversee and manage all employees," the 
job descriptions provided by the petitioner also indicate that the beneficiary will be directly performing many 
of the day-to-day operations of the company, including product design, market analysis and research, 
inventory control, customer service, purchasing, sales, and public relations. These are tasks that are necessary 
to produce the products or provide the services of the company. The petitioner did not provide any 
breakdown of the amount of time the beneficiary would spend on each job duty, such that the AAO could 
determine whether the beneficiary would be primarily performing managerial or executive duties, or the non- 
qualifying duties described above. An employee who "primarily" performs the tasks necessary to produce a 
product or to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International., 19 I&N 
Dec. 593,604 (Cornrn. 1988). 
Additionally, the record is insufficient to demonstrate that there would be additional staff to relieve the 
beneficiary from performing non-qualifying functions within the requisite one year of approval of the 
petition. In response to the director's request for further evidence, counsel for the petitioner claimed that the 
company expects to hire four employees in addition to the beneficiary. However, counsel's letter described 
these additional employees as an office assistant, a computer assistant, and two sales person, whereas the 
organizational chart submitted at the same time indicates that the beneficiary's subordinates would include an 
artisan, an office assistant/computer programmer, and two sales persons. The petitioner did not explain or 
account for this discrepancy. 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, 59 1-92 (BIA 1988). Moreover, the petitioner did not specify any dates by which these 
proposed employees would be hired. In addition, the business plan for the U.S. entity submitted with the 
initial petition made no mention of plans to hire additional employees, and the financial projections for both 
the first and second year provide for an annual salary for one single employee, at $2,000 per month.' Given 
these deficiencies in the record, the AAO cannot determine whether the petitioner actually intends to hire 
additional employees, when those employees would be hired, and what position those employees would 
actually fill. Thus, the record as presently constituted is insufficient to establish that there would be 
1 
The AAO notes that on the Form 1-129, the petitioner indicated that the beneficiary's expected annual 
salary is $75,000. In addition, a set of financial projections for the first and second year submitted in response 
to the request for additional evidence lists the beneficiary's annual salary at $75,000 plus a total of $96,000 
combined salary per year for four additional employees. The petitioner has offered no explanation for the 
discrepancies relating to projected salaries in the two sets of financial projections. Again, it is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 59 1-92. 
EAC 04 267 52999 
Page 7 
additional staff to relieve the beneficiary from performing non-qualifying job duties and allow him to function 
in a primarily managerial or executive capacity within one year of approval of the petition. 
Based on the foregoing, the AAO concurs with the director's conclusion that the petitioner has failed to 
demonstrate that the intended United States operation, within one year of the approval of the petition, will 
support the beneficiary in an executive or managerial position. 
Beyond the director's decision, the petitioner has not provided sufficient evidence to establish that there is a 
qualifying relationship between the U.S. and foreign entities. The regulations and case law confirm that 
ownership and control are the factors that must be examined in determining whether a qualifying relationship 
exists between the United States and foreign entities for purposes of this visa classification. Matter of Church 
Scientology International, 19 I&N Dec. at 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N 
Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter ofChurch Scientology International, 19 I&N Dec. at 595. 
In considering a petitioner's claimed qualifying relationship, CIS must be able to examine evidence such as 
the stock certificates, stock ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings 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. 
See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362. On the Form 1-129, the petitioner indicated 
that the U.S. entity and the foreign entity are affiliates since the same individual, the beneficiary, owns 100% 
of the foreign entity and 80% of the U.S. entity. However, the petitioner did not submit any documentation to 
support its claim regarding the ownership and control of the foreign entity. With respect to the U.S. entity, 
the petitioner submitted only a letter from a person identified as the president of the company certifying that 
the beneficiary owns 80% of the company. This letter alone is insufficient proof of the ownership and control 
of the U.S. entity. 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 1&N Dec. 190 (Reg. Comm. 1972)). In light of the lack of 
supporting documentation, the petitioner has failed to establish that the U.S. and foreign entities are affiliates 
as defined in the regulations. 8 CFR $ 214.2(1)(l)(ii). For this additional reason, the petition will be denied. 
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), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if she shows 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. 
EAC 04 267 52999 
Page 8 
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. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affinned and the petition will be denied. 
ORDER: The appeal is dismissed.