dismissed L-1A Case: Hotel Management

identifying data deleted to 
prevent CIC r?y ~x~ivmanted 
invasion of privacy 
~UDL~C COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 07 108 52366 Office: VERMONT SERVICE CENTER ~ate:sFP 0 3 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 
 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
-*- u6v 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 07 108 52366 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of "general 
rnanager/directorV to open a new office in the United States as an L-1A nonimmigrant intracompany 
transferee pursuant to section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. Fj 
1 101(a)(15)(L). The petitioner, a business entity organized under the laws of the State of Hawaii, is allegedly 
in the "hotel management and asset acquisition" business.' 
The director denied the petition concluding that the petitioner failed to establish (1) that the United States 
operation will support an executive or managerial position within one year; or (2) that the United States 
operation has secured sufficient premises to house the new office. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the petitioner has established 
that the beneficiary will primarily perform qualifying duties within one year and that the petitioner has 
secured sufficient premises to house the operation. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 1 0 1 (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. Fj 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. 
'~lthough the petitioner describes itself as a limited liability company, both the supporting documents in the 
record and the public corporate records maintained by the State of Hawaii indicate that the petitioner is 
actually a corporation called 
- 
EAC 07 108 52366 
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. 
In addition, the regulation at 8 C.F.R. 5 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been 
secured; 
(B) 
 The beneficiary has been employed for one continuous year in the 
three yeai- period preceding the filing of the petition in an executive 
or managerial capacity and that the proposed employment involved 
executive or managerial authority over the new operation; and 
(C) 
 The intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial 
position as defined in paragraphs (l)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial 
ability of the foreign entity to remunerate the beneficiary and 
to commence doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The main two issues in this proceeding are (I) whether the intended United States operation, within one year of 
the approval of the petition, will support an executive or managerial position or; (2) whether the petitioner secured 
sufficient physical premises to house the new office. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. § 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
EAC 07 108 52366 
Page 4 
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 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
Counsel claims in a letter dated March 7, 2007 that the petitioner "was incorporated to operate its Hawaii 
business in the hotel management, asset liquidation and real estate in the State of Hawaii, USA." Other than 
this vague description provided by counsel, the record is devoid of evidence pertaining to the proposed United 
States operation. Although the table of contents appended to the petition indicates that a lease was attached, 
the record does not contain a lease. 
On April 30, 2007, the director requested additional evidence. The director requested, inter alia, a copy of a 
business plan, evidence establishing that the United States operation will grow to be of a sufficient size to 
support a managerial or executive position within one year, evidence that the petitioner has secured sufficient 
physical premises to house the new office, and photographs of the secured premises. 
In response, counsel submitted a document described as a "business plan" and titled "Exhibit A." Generally, 
the petitioner claims that the beneficiary will "begin contacting the Japanese and local hotel owners in Hawaii 
for the purpose of undertaking contractual management and assistance in the hospitality industry for the 
Japanese hotel owners in Hawaii acting as the owner's agent." The petitioner also claims that it will act as a 
"special consultant" to hotels on construction, operations, and special events and that the "Sheraton Hotel 
EAC 07 108 52366 
Page 5 
chain" will be its primary customer. Furthermore, the petitioner claims that it will hire between two and five 
additional employees to assist in the provision of its management services. Finally, in response to the 
director's inquiry regarding the growth of the business, the petitioner admits that "it is very difficult to project 
whether the new company will grow to sufficient size to support a managerial or executive position," that "for 
at least the first year or two" the beneficiary will be required to perform non-qualifying tasks, and that "it is 
anticipated that it will require more than one year for [the beneficiary] to be able to relinquish the non- 
managerial functions of the company." 
Moreover, while the petitioner submitted photographs of its claimed "business office" in downtown Honolulu, 
the petitioner did not submit a lease for this location. 
On August 21, 2007, the director denied the petition concluding that the petitioner failed to establish (1) that 
the United States operation will support an executive or managerial position within one year; or (2) that the 
United States operation secured sufficient physical premises to house the new office. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval and that the United States operation has secured sufficient physical 
premises. In support, counsel submits a copy of the lease which was listed in the table of contents appended 
to the initial petition but was omitted from the record. 
Upon review, counsel's assertions are not persuasive. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed, In order to qualify for L-1 nonimtnigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andtor services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 21 3 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target rnarket/prospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
EAC 07 108 52366 
Page 6 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefor. Most importantly, the business plan must be credible. 
Id. 
For several reasons, the petitioner in this matter has failed to establish that the United States operation will 
succeed and rapidly expand as it moves away from the developmental stage to full operations, where there 
would be an actual need for a manager or executive who will primarily perform qualifying duties. 
Specifically, the petitioner has failed to establish that the beneficiary will primarily perform qualifying duties 
after the petitioner's first year in operation; has failed to establish that the beneficiary will be relieved of the 
need to perform the non-qualifying tasks inherent to the operation of the business by a subordinate staff 
within the petitioner's first year in operation; has failed to establish that a sufficient investment has been made 
in the United States operation; has failed to sufficiently and credibly describe the nature, scope, and financial 
goals of the new office; and has failed to establish that the United States operation has secured sufficient 
physical premises. 8 C.F.R. $ 2 14,2(1)(3)(v)(C). 
First, the job description for the beneficiary fails to credibly establish that the beneficiary will be performing 
primarily "managerial" or "executive" duties after the petitioner's first year in operation. When examining the 
proposed executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's 
description of the proposed job duties. See 8 C.F.R. 3 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties that will be performed by the beneficiary and indicate whether such 
duties will be either in an executive or managerial capacity. Id. 
In this matter, the petitioner has provided a vague description of the beneficiary's duties which generally 
indicates that the beneficiary will be primarily performing non-qualifying operational or administrative tasks 
after the petitioner's first year in operation. For example, the petitioner claims that the beneficiary will act as 
an "agent" or "special consultant" to hotels in Hawaii and that "it is anticipated that it will require more than 
one year for [the beneficiary] to be able to relinquish the non-managerial functions of the company." 
Accordingly, it appears more likely than not that the beneficiary will be primarily performing non-qualifying 
tasks after the petitioner's first year in operation. In fact, the petitioner appears unsure whether the business 
will ever grow to the point that it will support a managerial or executive position. 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; 
see also Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Consequently, the record is not persuasive in establishing that the beneficiary will be, after the first year, 
relieved of the need to "primarily" perform the non-qualifying tasks inherent to his duties and to the operation 
EAC 07 108 52366 
Page 7 
of the business in general. While the petitioner claims that it will hire between two and five additional 
employees during its frst year in business, the petitioner has failed to establish that it will truly be able to hire 
these workers and, even if it could, that these workers will relieve the beneficiary of the need to primarily 
perform non-qualifying tasks. The petitioner's "business plan" vaguely describes the proposed United States 
operation as a hotel management consulting enterprise. However, the plan and associated financial 
projections are entirely unsupported by evidence. The record does not specifically describe the operation's 
marketing strategy, and fails to identify any business relationships or potential customers, other than a single 
uncorroborated claim to work for the Sheraton hotel chain. The petitioner failed to establish the proposed 
cost of hiring the additional workers or explain in detail what, exactly, they will do on a day-to-day basis. 
Finally, the record does not contain any purchase orders or contracts, and is devoid of evidence of any assets. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 
1972). 
Accordingly, the petitioner's claim that its newly formed operation, with no proven assets, will hire between 
two and five workers who will eventually relieve the beneficiary of the need to primarily perform non- 
qualifying tasks is not credible and is not supported by any evidence. Simply alleging that the petitioner will 
hire employees who will perform all the non-qualifling tasks inherent to the business does not establish that 
the United States operation will truly grow and mature into an active business organization which will 
reasonably require the services of a beneficiary who will primarily perform managerial or executive duties. 
Rather, the petitioner must clearly define the scope and nature of a United States operation and establish that 
it has, and will continue to have, the financial ability to support the establishment and growth of the business. 
However, as the record in this matter is devoid of any such evidence, the petitioner has failed to establish that 
the beneficiary will more likely than not perform "primarily" qualifying duties after the petitioner's frst year 
in operation. 
Furthermore, even assuming that the petitioner will have the ability to hire the workforce proposed in the 
petition, the record is not persuasive in establishing that the beneficiary will supervise and control the work of 
other supervisory, managerial, or professional employees. It appears that any workers hired by the petitioner 
will perform the tasks necessary to the operation of the business, and the beneficiary will be their first-line 
supervisor. Given the size and nature of the vaguely described consulting business, it is more likely than not 
that the beneficiary and his proposed subordinate employees will all primarily perform the tasks necessary to 
the operation of the business after the fust year in operation. See generally Family, Inc. v. US. Citizenship 
and Immigration Services, 469 F.3d 1313 (9" Cir. 2006). It is not credible that a business, such as the 
petitioner's proposed United States operation, will develop an organizational complexity within one year 
which will require the employment of a subordinate tier of managers or supervisors who will ultimately be 
supervised and controlled by a primarily managerial employee. Therefore, it appears that the beneficiary will 
be, at most, a first-line supervisor of non-professional employees. A managerial or executive employee must 
have authority over day-to-day operations beyond the level normally vested in a first-line supervisor. See 
101 (a)(44) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has failed to establish that the beneficiary will be primarily employed in a 
managerial or executive capacity within one year, and the petition may not be approved for that reason. 
EAC 07 108 52366 
Page 8 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year, because it failed to establish that a sufficient investment was made in the 
enterprise. 
 8 C.F.R. 5 214.2(1)(3)(v)(C)(2). In this matter, the record is devoid of evidence that any 
investment has been made in the United States operation. Furthermore, given that the business plan does not 
contain any corroborated, specific financial projections related to rent, salary expenses, and other start-up 
costs, it would be impossible to discern what size of an investment would be necessary for the new business 
to grow and thrive even if the record contained evidence of an investment. Once again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190. 
Accordingly, as the petitioner has failed to establish that it has received a sufficient investment, the petition 
may not be approved for this additional reason. 
Third, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner has failed to sufficiently describe the nature, scope, 
and financial goals of the new office. 8 C.F.R. 9 214.2(1)(3)(v)(C)(I). As explained above, the petitioner 
vaguely describes the United States operation as a hotel management consulting business. However, the plan 
and associated financial projections are entirely unsupported by evidence. The record does not specifically 
describe the operation's marketing strategy, and the petitioner fails to submit sufficient evidence of having 
established any business relationships or identified any potential customers. The record does not contain any 
independent analysis, contracts, list of business contacts, or copy of a proposed lease for the "business" 
location. Absent a detailed, credible description of the petitioner's proposed United States business operation 
specifically addressing the petitioner's proposed services, marketing plan, and customers, it is impossible to 
conclude that the proposed enterprise will succeed and rapidly expand as it moves away from the 
developmental stage to hll operations, where there would be an actual need for a manager or executive who 
will primarily perform qualifying duties. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. § 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
Finally, with regard to the second main issue in this proceeding, the petitioner failed to establish that it has 
secured sufficient premises to house the new office. 8 C.F.R. $ 214.2(1)(3)(v)(A). The petitioner claims to 
have secured a "residential office" and a "shared business office location in downtown Honolulu." However, 
while the petitioner submitted photographs of the two locations, the petitioner failed to submit a copy of a 
lease for the "business office." Once again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190. Therefore, as the terms of the lease for the "business office" have not been 
disclosed, it cannot be discerned whether this location would be sufficient to house the new office. 
Furthermore, the photographs and lease, ultimately submitted on appeal, for the "residential office" fail to 
establish that this location will sufficiently house the new office. It appears that this office is in a private 
residence. It is not credible that this "residential office" will permit the enterprise described in the business 
EAC 07 108 52366 
Page 9 
plan to succeed and rapidly expand as it moves away from the developmental stage to full operations, where 
there would be an actual need for a manager or executive who will primarily perform qualifying duties. The 
location and size of the office is incongruous with the projected growth and nature of the business vaguely 
described in the record. 
Accordingly, the petitioner failed to establish that it has secured sufficient physical premises to house the new 
office, and the petition may not be approved for this reason. 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are 
qualifying organizations. 
The regulation at 8 C.F.R. § 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. 4 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a fm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (I)(l)(ii) of this section" and "is or will be doing 
business." "Affiliate" is defined in part as "[olne 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." 8 
C.F.R. § 214.2(1)(1)(ii)(L)(2). 
In this matter, the petitioner submitted a translation of a Japanese document titled "Statement of Evaluation 
regarding Affiliated Company" which indicates that the foreign employer is majority owned by 
However, the petitioner also claims in its "business plan" that the foreign employer is owned by 
Regardless of which description of the foreign employer's ownership is correct, 
certificates for the petitioner which indicate the following ownership structure: 
(20%), 0%), and (30%). Therefore, as the two entities are not 
owned and controlled by the same group of individuals, each individual owning and controlling approximately 
the same share or proportion of each entity, the organizations are not "affiliates" and, thus, are not qualifying 
organizations. 
Accordingly, the petitioner has failed to establish that it and the foreign employer are qualifying 
organizations, and the petition will not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been 
employed in a primarily managerial or executive capacity with the foreign entity for one year within the 
preceding three years. 8 C.F.R. 5 214.2(1)(3)(v)(B). 
In this matter, the record indicates that the beneficiary last worked for the foreign employer in 2000. The 
instant petition was filed on March 12, 2007. From 2000 until 2006, the beneficiary was studying in the 
United Kingdom. The record is devoid of evidence establishing that the beneficiary was "employed" for one 
year within the preceding three years by the foreign employer. Accordingly, the petitioner is not eligible for 
the benefit sought. 
EAC 07 108 52366 
Page 10 
Second, the petitioner failed to specifically describe the beneficiary's job duties abroad. Specifics are clearly 
an important indication of whether a beneficiary's duties will be primarily executive or managerial in nature; 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Furthermore, the 
petitioner failed to describe the duties of the beneficiary's purported subordinates, if any. Absent detailed 
descriptions of the duties of both the beneficiary and his purported subordinates, it is impossible for 
Citizenship and Immigration Services (CIS) to discern whether the beneficiary was "primarily" engaged in 
performing managerial or executive duties abroad. See sections 101(a)(44)(A) and (B) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary has been employed in a primarily 
managerial or executive capacity for one continuous year in the three years preceding the filing of the petition 
as required by 8 C.F.R. 5 214.2(1)(3)(v)(B), and the petition may not be approved for this reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 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. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.