dismissed L-1A Case: Import/Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-S-A- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 4, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner intends to operate a food supply and restaurant equipment import and export business 
and seeks to temporarily employ the Beneficiary as the president of its new office under the L-1 A 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) section 101(a)(l5)(L), 8 U.S.C. § 1101(a)(15)(L). The L-lA classification allows a corporation 
or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the 
United States to work temporarily in a managerial or executive capacity. 
The Director, California Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that the Beneficiary is employed abroad in a managerial or 
executive capacity or that the Beneficiary's services in the United States are to be used for a 
temporary period. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that it has established by a preponderance of the evidence that the Beneficiary is employed 
abroad in a managerial capacity and that he will be transferred back to his foreign employer after 
completion of his temporary employment in the United States. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the BenefiCiary in a 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. Section 101(a)(15)(L) .. of the Act. 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. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of A-S-A-Inc. 
(i) Evidence that the petitioner and the organization which employed or will 
employ the alien are qualifying organizations as defined in paragraph 
(1)(1 )(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 him/her 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. § 214.2(1)(3)(v) further provides 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 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 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: 
(1) The proposed nature of the office describing the scope ofthe 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. 
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Matter of A-S-A-inc . 
II. FOREIGN EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director denied the , petition, in part, based on a finding that the Petitioner did not establish that 
the Beneficiary has been employed abroad in a managerial or executive capacity for at least one 
continuous year in the three years preceding the tiling of the petition. The Petitioner does not claim 
that the Beneficiary has been employed in an executive capacity. Therefore , we will analyze only 
whether the Beneficiary's foreign employment is in a managerial capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 110l(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 
tor which the employee has authority. 
Further, "[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." Jd. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity , USCIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization . See section 101 (a)(44)(C) 
ofthe Act. 
A. Evidence of Record 
The Petitioner stated on the L Classification Supplement to the Form 1-129 that the Beneficiary has 
been employed as director and owner of in Jordan since 2007 , 
performing the following duties: 
He along with his partner have mad~ all executive decisions regarding the company. 
He has directed the marketing, design and financial operations of the business in 
Jordan. He has reviewed and planned for the company's future financial status. He 
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(b)(6)
Matter of A-S-A-Inc . 
has implemented strategies for areas of future investment. He has been involved in 
policy formulation and has held management control of the company. 
The Petitioner submitted evidence of the Beneficiary's co-ownership of the foreign company, which 
does business as ' 
The Director issued a request for evidence (RFE) advising the Petitioner that it would need to 
provide a more detailed description of the Beneficiary ' s position with the foreign entity, including a 
list of his typical managerial or executive duties and the amount of time he spends on specific tasks, 
and evidence that he supervises a subordinate staff of managers, supervisors or professionals or 
manages an essential function of the foreign entity. The Director also requested the foreign entity's 
organizational chart along with information regarding the job titles , duties, educational level and 
salaries ofthe Beneficiary's subordinates. 
In a letter submitted in response to the RFE, the Petitioner explained that 
is affiliated with a family-owned company , established in 1990, which operates several 
businesses. The Petitioner reiterated that the Beneficiary is co-owner of 
and stated that he is also an employee and shareholder of the affiliated family company 
where he serves as the executive manager of the import 
department. 
The Petitioner submitted a letter signed by 
employed as a director of 
who stated that the Beneficiary has been 
and as manager of import-export in 
He described the Beneficiary's "managerial duties" as: 
• Direct marketing , design and financial operations, 
• Implement strategies for areas of future investment, 
• Involved in policy formulation, 
• Management control of the company, management of work of other managers; 
• Identifies trendsetter ideas by researching industry and related events, 
publications and announcements. 
• Tracking individual contributors and their accomplishments . 
• Locates or , proposes potential business deals by contacting potential partners , 
discovering and exploring opportunities. 
• Screens potential business deals by analyzing market strategies, deal 
requirements, evaluating options 1 resolving internal priorities, recommending 
equity investments. 
• Develops negotiating strategies and positions by studying integration of new 
venture with company strategies and operations, examining risks and potentials, 
estimating partners' needs and goals, 
• Authority to hire and fire personnel. 
In addition, provided the following list of duties for the Beneficiary ' s position as 
manager of import-export for 
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Matter of A-S-A- Inc. 
• Documents shipments to ensure that they are in compliance w·ith customs rules 
and regulations. 
• Counsel clients on matters like tariffs, insurance and quotas. 
• Categorize shipments according to a tariff coding system. 
• Counsels agents to ease passage of shipments through customs 
• Counsel President of the corporation [on] how to reduce duties and taxes owed. 
• Handle all shipment of the goods, such as track the location of the shipment; 
prepare goods for shipment, using the best, most economical package. 
• Transportation, warehousing, and distribution of goods, to ensure timely arrivals. 
• Determine how much insurance to take out on the shipment. 
The Petitioner provided an organizational chart for showing the 
Beneficiary and as co-presidents. The chart depicts a "morning manager" and a 
"night manager" who report to the presidents and lower level staff who report to the managers, 
including two shawarma cooks, two barbeque cooks, two falafel/hummus cooks, four waiters and 
two cleaning staff. The Petitioner also provided an organizational chart for 
which depicts the Beneficiary as executive manager of the import/export 
department, reporting to a vice president. This chart depicts a receiving employee and a distribution 
employee who report directly to the Beneficiary, as well as three lmver-level employees. 
The Petitioner provided the Jordanian certificate of registration of joint-liability company for 
showing its acting partners as 
(3750 shares) and (1250 shares). Finally, the Petitioner 
submitted a letter from who stated that the Beneficiary, along with his 
three brothers are owners of several companies in Jordan. He stated that the Beneficiary O\Vns 20 
percent of the shares of and is an active manager for its import 
department. 
The Director denied the petition, concluding that the evidence of record did not establish that the 
Beneficiary has been employed abroad in a managerial or executive capacity. In denying the 
petition, the Director found that the Petitioner's description of the Beneficiary's duties was 
overbroad and did not identify the specific duties he performs on a day-to-day basis within the 
context of the foreign entity's business. The Director acknowledged the Petitioner's claim that the 
Beneficiary holds a managerial position \Vith but found 
that the Petitioner did not demonstrate that this entity is a qualifying organization, as it does not 
appear to share any common ownership with the petitioning company. Therefore, the Director did 
not consider this role in detem1ining whether the Beneficiary has been employed abroad in a 
qualifying capacity. 
The Director acknowledged the submitted organizational chart for the foreign entity, but emphasized 
that the Petitioner did not provide information regarding the duties performed by the subordinate 
employees or establish that its restaurant personnel are employed as managers, supervisors or in 
professional positions. The Director found that the Beneficiary is more likely than not assisting in 
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(b)(6)
Matter of A-S-A- Inc_ 
the day-to-day functions of the restaurant rather than primarily supervising qualifying subordinate 
staff or_ managing an essential function_ 
On appeal, the Petitioner asserts that the Director's adverse decision is "unreasonable" because it 
had provided extensive documentation regarding the managerial nature of the position. c The 
Petitioner asserts that the Beneficiary and his brother , as co-owners of the foreign entity, manage 14 
employees , including two subordinate supervisors , and cites to a non-precedent decision in which 
this office found that a restaurant manager qualified for L-1 A status based on evidence that he 
supervised subordinate managers who oversee three departments and whose subordinates performed 
the majority of the day-to-day, non-managerial tasks of the restaurant. 
The Petitioner further states that the Beneficiary "manages the organization, in that he oversees the 
operations of the company by his meetings with the Supervisor and overlooking all departments." In 
addition , the Petitioner emphasizes that he "has the capacity to hire and fire personnel and has _a 
direct say in the day-to-day operations of the company as well as the function of the company by 
virtue of his management over a supervisor. " The Petitioner explains that he has weekly meetings to 
discuss the company 's operations and future plans, regular meetings with outside contractors , such 
as accountants , buyers and suppliers, and that he "delegates the necessary actions to the restaurant 
manager/supervisors. " 
The Petitioner re-submits the foreign entity's organizational chart showing 16 employees, including 
the Beneficiary and the co-president. The Petitioner also submits an employee list that includes each 
employee's name, dates of employment and job duties ; the employee list includes 20 employees 
including two additional cleaning staff and two "shift captains " who appear to have commenced 
employment with the foreign entity subsequent to the filing of the petition . The Petitioner describes 
the Beneficiary ' s duties as follows: 
• He owns 50% of the company. 
• He sponsors the employees when they come from a different country. 
• Responsible for hiring employees. 
• Responsible for training the 
employees_ 
• He deals with the merchandise companies and set up the deals for the prices. 
• He is responsible for advertising the restaurants and set up events. 
• He coordinates the work accordingly with each emplo y
ee responsibility and takes 
care of the accounting of the restaurant such as paying bills, paying the salaries 
and paying for the merchandises. 
The Petitioner indicates that the other president, performs the same duties with 
respect to sponsoring , hiring and training employees. In addition, the Petitioner states that he makes 
deals with the meat and chicken companies and fulfills the needs of the restaurant when the 
Beneficiary is not available . 
r 
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Matter of A-S-A- Inc. 
The Petitioner states that the subordinate supervisors assign duties to the lower-level employees, 
monitor their work and workt1ow, make sure the employees are coming to work on time and in their 
uniforms, and ensure that the restaurant is clean. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary has been 
employed abroad in a managerial capacity. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The definitions of 
managerial and executive capacity each have two parts. First, the Petitioner must show that the 
Beneficiary performs certain high-level responsibilities. Champion World, Inc. v. INS; 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary has been primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the company's other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Here, the Petitioner initially provided a brief description of the Beneficiary's duties which provided 
little insight into the nature of his day-to-day tasks. For example, the Petitioner stated that the 
Beneficiary "made all executive decisions,'' "directed the marketing ... and financial operations," 
"implemented strategies for future investment" and was involved in planning and policy 
formulation. However, the Petitioner did not describe the day-to-day tasks the Beneficiary performs 
within the context of the foreign entity's restaurant business or identify specific decisions he has 
made or policies he has implemented in carrying out his duties. Conclusory assertions regarding a 
beneficiary's employment capacity are not sufficient. Merely repeating the _language of the statute 
or regulations does not satisfy the petitioner's burden of proof. See Fedin Bros. Co .. Ltd v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd,.905 F. 2d 41 (2d. Cir. 1990); Av:vr Associates. Inc. 
v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Accordingly, the Director advised the Petitioner of the deficiencies in the initial evidence and 
provided the Petitioner with an opportunity to submit a detailed description of the Beneficiary's 
specific duties and the percentage of time he spends on each task. The Director requested this 
evidence to allmv him to determine whether the Beneficiary's duties are primarily managerial or 
executive in nature, or \Vhether he is directly involved in the non-managerial, day-to-day functions of 
the foreign entity's restaurant alongside its other employees. 
In response to the RFE, the Petitioner added a number of duties to the original position description, 
but again did not describe these duties in terms of the specific tasks the Beneficiary performs with 
respect to the daily operation of the foreign entity's restaurant business. For example, the Petitioner 
stated that the Beneficiary's duties include developing "negotiating strategies and positions by 
studying integration of new venture with company strategies," but did not further explain the parties 
involved in such negotiations or identify any "new ventures." The Petitioner also noted the 
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Matter of A-S-A-Inc. 
Beneficiary's responsibility for locating, proposing and screening "potential business deals" but did not 
identifY any of these deals or relate them to the foreign entity's business. This description did not add 
greater specificity to the original job description, or shed additional light on what the Beneficiary 
primarily does on a day-to-day basis with reference to the restaurant's operations. Fm1her, the 
Petitioner did not describe these responsibilities in sufficient detail to establish how they quality as 
either managerial or executive, nor did it include the requested percentages allocated to specific tasks. 
As such, the information provided was not responsive to the requests made in the Director's RFE. 
Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; 
the regulations require a detailed description of the beneficiary's daily job duties. The Petitioner has not 
provided any detail or explanation ofthe Beneficiary's activities in the course of his daily routine with 
the foreign entity. The actual duties themselves will reveal the true nature of the employment. Fedin 
Bros. Co., Ltd v. Sava, 724 F. Supp. at 1108, a.ff'd, 905 F.2d 41 (2d. Cir. 1990). 
On appeal, the Petitioner attempts to further clarify the Beneficiary's responsibilities and submits a 
brief list of duties that bears little resemblance to that provided in response to the RFE. The 
Petitioner notes the Beneficiary's responsibility for hiring and training employees, but does not 
explain how training the restaurant's cooks, waiters, and cleaning staff would quality as a 
managerial duty. Further, the job duties provided on appeal indicate that the Beneficiary performs a 
number of other non-managerial duties necessary for the daily operation of the restaurant, such as 
purchasing, marketing and advertising the restaurant, setting up events, and routine financial duties 
such as paying bills, salaries, and purchase invoices. While the record indicates that the restaurant 
has employees to cook meals and serve customers, and two shift managers who directly supervise 
these tasks, it has not established that responsibility for marketing, purchasing, administrative, or 
clerical duties are assigned to subordinate staff. Once again, the Petitioner has not provided any 
information regarding the amount of time the Beneficiary allocates to specific tasks. 
Based on the current record, we are unable to determine whether the claimed managerial duties 
constitute the majority of the Beneficiary's duties, or whether the Beneficiary primarily performs 
non-managerial administrative or operational duties. Although the Director specifically requested 
the information, the Petitioner's descriptions of the Beneficiary's job duties do not establish what 
proportion of the Beneficiary's duties is managerial in nature, and what propmtion is actually non­
managerial. See Republic o.fTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991 ). 
Here the Petitioner has consistently referred to the Beneficiary as the foreign entity's director and 
co-owner; however, we note that the fact that the Beneficiary manages a business does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or 
executive capacity within the meaning of section 101(a)(44) ofthe Act. By statute, eligibility for 
this classification requires that the duties of a position be "primarily" of an executive or managerial 
nature. Sections 101 (A)( 44)(A) and (B) of the Act. While the Beneficiary may exercise discretion 
over the foreign entity and possess the requisite level of authority with respect to personnel decisions 
and day-to-day operations, the position descriptions alone are insufficient to establish that his actual 
duties for the foreign entity are primarily managerial or executive in nature. 
8 
Matter of A-S-A-Inc. 
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 company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, and 
any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. 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 I Ol(a)(44)(A) of the Act; 8 C.F.R. 
§ 214.2(1)(1 )(ii)(B)( 4). If a petitioner claims that a beneficiary directly supervises other employees, 
those subordinate employees must be supervisory, professional, or managerial, and the beneficiary 
must have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. Sections IOI(a)(44)(A)(ii)-(iii) ofthe Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(J). 
The foreign entity's employee list includes a "morning manager" and a "night manager" who report to 
the Beneficiary and his partner, and who are responsible for directly supervising the cooks, waiters and 
cleaning staff who work during their respective shifts. While it appears more likely than not that these 
employees monitor the activities of the lower-level staff while on duty, the evidence of record is 
insufficient to establish that the Beneficiary, who shares supervisory authority with his partner, allocates 
his time primarily to the supervision of one or both of these subordinate supervisors. As noted above, 
the Beneficiary himself is responsible for training the lower-level staff, performing non-managerial 
purchasing, advertising, administrative and financial functions, and, based on the evidence submitted, 
has not allocated any of these duties to the two shift managers. While the Beneficiary spends some time 
supervising subordinate supervisory employees, the Petitioner did not assign a percentage of time to this 
responsibility. The evidence of record is insufficient to establish that the Beneficiary is primarily 
performing the duties of a personnel manager. 
The Petitioner has not established, in the alternative, that the Beneficiary is employed abroad 
primarily as a "function manager." The term "function manager" applies generally when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily 
responsible for managing an "essential function" within the organization. See section 
IOI(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If 
a petitioner claims that a beneficiary will manage an essential function, a petitioner must clearly 
1 To determine whether the Beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. L:Y 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean ·'any occupation for which a United States baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation"). Section IOI(a)(32) of the Act, 8 U.S.C. § IIOI(a)(32), 
states that ''[t]he term profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
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Matter of A-S-A- Inc. 
describe.the duties to be performed in managing the essential function, i.e., identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of a 
beneficiary's daily duties dedicated to managing the essential function. , See 8 C.F.R. 
§ 214.2(1)(3)(ii). In addition, a petitioner's description of a beneficiary's daily duties must 
demonstrate that the beneficiary will manage the function rather than perform the duties related to 
the function. 
While the Petitioner states on appeal that the Beneficiary manages "the function of the company," it 
claims he qualifies as a personnel manager and does not specifically miiculate a claim that he is 
employed primarily as a function manager or provide sufficient information to allow us to draw a 
conclusion regarding the Beneficiary's claimed management of a function. Further, the Petitioner 
still has the burden of establishing that the Beneficiary primarily performs managerial duties. See 
section 101(a)(44)(A) of the Act. Whether the Beneficiary is a function manager turns in part on 
whether the Petitioner has sustained its burden of proving that his duties are "primarily" managerial. 
For the reasons discussed above, the Petitioner did not meet that burden. 
The Petitioner correctly observes that a company's size alone, without taking into account the 
reasonable needs of the organization, may not be the determining factor in denying a visa petition for 
classification as a multinational manager or executive. See section 101(a)(44)(C) of the Act, 8 
U.S.C. § 1101(a)(44)(C). However, it is appropriate for USCIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as the absence of employees 
who would perform the non-managerial or non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See, e.g. Family Inc. 
v. USCJS, 469 F.3d 1313 (9th Cir. 2006); Systronics Cmp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). 
Here, the. Petitioner established that it had kitchen and wait staff in place to handle the day-to-day 
operations of cooking and serving food to customers. However, the foreign entity's latest employee 
list includes "shift captains" who are responsible for supervising waiters and serving as hosts and 
there is no evidence that these positions were tilled previously, and therefore unclear who \vas 
performing these duties during the Beneficiary's qualifying period of employment abroad. Further, 
as discussed above, the record shows that the Beneficiary performs most other non-managerial duties 
necessary for the daily operation of the restaurant, including purchasing, advertising, coordinating 
events, payroll, and all routine financial and administrative matters, and the Petitioner has not 
established by a preponderance of the evidence that he primarily performs the claimed managerial 
duties. 
We acknowledge that the Petitioner cited to several unpublished decision in which we determined 
that the beneficiary met the requirements of serving in a managerial and executive capacity for L-1 
classification. The petitioner has not established that the facts of the instant petition are analogous to 
those in the unpublished decisions. We acknowledge that one of those cited decisions involved the 
manager of a restaurant; however, the petitioner in the cited case had submitted sufficient evidence 
to establish that most non-managerial activities necessary for the restaurant's operation were 
assigned to subordinate staff, while this is not the case in this matter. Further, while 8 C.F.R. 
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Matter of A-S-A-Inc . 
§ 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees m the 
administration of the Act, unpublished decisions are not similarly binding. 
Finally, we note that the Petitioner must establish that the Beneficiary was employed abroad in a 
full-time managerial or executive position for at least one continuous year in the three years that 
preceded the filing of the petition. Here, the Petitioner stated that the Beneficiary allocates an 
unidentified portion of his time to serving as manager of import/export tor 
As noted by the Director , the evidence of record does not establish that this 
entity has a qualifying relationship with the petitioning company, and the Beneficiary's employment 
with this company cannot be used to establish that he has been employed by a quali fying 
organization in full-time managerial or executive position. The Petitioner also has not stated how 
the Beneficiary allocates his time between these two different entities and without this information , 
we cannot determine that he is employed with the on a full-time basis. 
Based on the deficiencies discussed above , the Petitioner has not established that the Beneficiary has 
been employed abroad in a managerial or executive capacity or that his employment with the 
qualifying foreign entity has been on a full-time basis tor at least one year in the three years 
preceding the filing of the petition. 
III. TEMPORARY EMPLOYMENT 
The Director also denied the petition, in part, based on a finding that the Petitioner did not submit 
evidence that the Beneficiary's services are to be used for a temporary period and evidence that the 
Beneficiary will be transferred to an assignment abroad upon the completion of the temporary 
services in the United States. 8 C.F.R . § 214.2(1)(3)(vii). 
In denying the petition , the Director observed that the Petitioner submitted a letter from 
president of who stated that the family businesses 
in Jordan expects the Beneficiary to return to resume his cfuties upon completion of his temporary 
services in the United States. The Director found that this letter was not credible because it was not 
provided by a representative of the qualifying foreign entity, 
However, upon revie\\ ; of the record in its entirety , the letter from was not the only 
evidence submitted to satist)' the regulator y requirement at 8 C.F.R. § 214 .2(l)(3)(vii). Further, the 
Petitioner has submitted additional evidence on appeal, including the Beneficiary ' s U.S. employment 
contract and an agreement between the partners of the foreign entity. We find that the Petitioner has 
now established by a preponderance of the evidence that it intends to use the Beneficiary's services 
for a temporary period and that it intends to transfer him abroad upon completion of his temporary 
stay. We withdraw the Director's finding with respect to this issue only. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Beyond the decision of the Director, we find that the evidence of record does not establish that the 
Beneficiary would be employed in a managerial or executive capacity within one year of approval of 
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Matter of A-S-A- Inc. 
the petition or that the new office would grow to the point where it will support a managerial or 
executive position within one year. 
The "new office" regulations allow a newly established petitioner one year to develop to a point that 
it can support the employment of an alien in a primarily managerial or executive position. See 8 
C.F.R. § 214.2(1)(3)(v)(C). Accordingly , if a petitioner indicates that a beneficiary is coming to the 
United States to open a "new office ," it must show that it is prepared to commence doing business 
immediately upon approval so that it will support a manager or executive within the one-year 
timeframe. 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. 
See generally, 8 C.F.R. § 214.2(1)(3)(v). 
The Petitioner was established in 2015 as an import-export company , and stated on the Form I-129 
that it had three employees at the time of filing. Specifically , the Petitioner states that it will import 
and sell tahini and other food products for Middle Eastern cuisine and exp01t restaurant equipment to 
Jordan and other countries in the Middle East. 
The Petitioner provided a very general description of the Beneficiary's proposed duties as president 
of the new office. While duties such as "manage the direction of the company," "hire, train and 
supervise qualified supervisory staff," "develop and implement strategies ," and "exercise of day-to­
day managerial control" suggest that the Beneficiary will have the appropriate level of authority over 
the new company, these duties provide little insight into the nature of the Beneficiary's expected 
managerial tasks . Conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp . at 1108, aff"d, 905 F. 
2d 41 (2d. Cir. 1990); Avyr Associates. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Moreover, th'e Petitioner's description of the Beneficiary's proposed duties indicates that he will also 
be engaged in non-qualifying duties such as launching marketing campaigns , vendor relations , 
preparing financial summaries and balance sheets , reviewing contracts, participating in the physical 
verification of all items exported and imported , and handling payroll and accounts payable. While 
performing non-qualifying tasks will not automatically disqualify the beneficiary as long as those 
tasks are not the majority of the Beneficiary 's duties , the Petitioner has the burden of establishing 
that the Beneficiary would "primarily" perform managerial or executive duties within one year of 
approval of the petition. See section 101 (a)( 44) of the Act. 
Accordingly, we look to the new office's projected staffing levels and organizational structure and 
the evidence submitted to support such projections to determine whether there will be sufficient staff 
to relieve the Beneficiary from significant involvement in non-qualifying duties within one year. 
The Petitioner submitted a business plan indicating that it will 
initially employ the Beneficiary as 
general director at a monthly salary of $6500 , as business manager-purchasing agent , 
and an administrative assistant. The Petitioner indicated that "once the enterprise is ready and 
operational we anticipate to have four employees. " 
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Matter of A-S-A- Inc. 
However, the Petitioner did not clarify whether it intends to hire four employees in addition to the 
three positions already identified, nor did it provide any information regarding the duties, anticipated 
~salaries, or requirements for the positions of business manager/purchasing agent or administrative 
assistant positions or any additional proposed positions. In addition, although the Petitioner claimed 
to have three employees at the time of filing in November 2015, its IRS Form 1120S, U.S. Income 
Tax Return for an S Corporation, indicates that the company paid no salaries or wages in 2015. 
The Petitioner's business plan also includes financial projections for the years 2015, 2016, 2017 and 
2018. Based on these projections, the Petitioner projected that it would pay monthly salaries and 
wages of$3800 as ofNovember 2016, one year from the date of filing the new office petition. The 
Projections indicated that the company would initially pay $1800 per month in wages, increase \vage 
expenses to $3600 per month in February 2016, and reach the $3800 figure as of May 2016, with no 
further increases during the first year. Therefore, the Petitioner's financial projections do not 
support a finding that the company expects to pay the Beneficiary's $6500 salary, much less the 
salaries of four or more additional employees during the first year of operations. 
The limited evidence submitted does not support a realistic expectation that the company will be 
staffed and able to support the Beneficiary in a qualifying managerial or executive position within 
one year. While it appears that the Beneficiary would have authority over the new office, the 
Petitioner has not established by a preponderance of the evidence that he ·would primarily perform 
managerial or executive duties within one year of approval of the petition. The Petitioner has not 
demonstrated that the Beneficiary, as a personnel manager, will be primarily supervising a 
subordinate staff of professional, managerial, or supervisory personnel. See section 
101(a)(44)(A)(ii) of the Act. Furthermore, the Petitioner has not established that it would employ a 
staff that will relieve the Beneficiary from performing non-qualifying duties so that he would be able 
to primarily engage in managerial or executive duties within one year. For this additional reason, the 
petition cannot be approved. 
V. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, \Vith each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Afatter of A-S-A- Inc., ID# 138933 (AAO Jan. 4, 2017) 
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