dismissed L-1A Case: Import/Export

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FILE: 
U.S. Department of Homeland Security 
20 Mass Ave., N.W. , Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Date: HAY 2 3 2w3 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
Robert P: Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner claims to be a branch of Almacen Escarcha, located in Colombia. The petitioner 
plans to engage in the import, retail and wholesale of various products. The U.S. entity was 
incorporated in the State of New York on June 20, 2002. The petitioner seeks to hire the 
beneficiary as a new employee to open its U.S. office. Accordingly, on July 2, 2002, the U.S. 
entity petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary as a 
nonimrnigrant intracompany transferee (L-1A) pursuant to section IOl(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L), as an executive or 
manager for one year. The petitioner endeavors to employ the beneficiary's services as the U.S. 
entity's general manager. 
On October 9, 2002, the director denied the petition. The director determined that the petitioner 
failed to establish that the petitioner had secured sufficient physical premises to house the new 
office and that the business would support a managerial or executive position within one year of 
the approval. 
On appeal, the petitioner's counsel refutes the director's findings. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. 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. Furthermore, 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. 
Pursuant to 8 C.F.R. $ 214.2(1)(3), 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 (I)(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 
Page 3 
that the alien's prior education, training, and employment qualifies himlher to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
Pursuant to 8 C.F.R. 5 214.2(1)(3)(~), if the petition indicates that the beneficiary is coming to the 
United States as a manager or executive to open or 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; 
(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 first issue in this proceeding is whether the petitioner has secured sufficient physical 
premises to house the new office pursuant to 8 C.F.R. 3 214.2(1)(3)(v)(A). 
Initially, the petitioner failed to submit evidence that it had secured sufficient physical premises 
to house the new office. As a result, on July 11, 2002, the director requested additional evidence. 
Specifically, the director requested the petitioner's original lease agreement or other legal 
agreement such as a bill of sale, the telephone number and a statement from the company's lessor 
identifying the square footage of the leased premises. In addition, the director requested 
photographs of the leased premises and a copy of further types of evidence such as a copy of the 
petitioner's utility bills, trash removal bills, telephone bills, water bills, and financial records. 
Finally, the director requested evidence that the leased premises is of sufficient size to conduct 
international trade, including shipping and receiving facilities. The director requested a statement 
from the petitioner's lessor identifying the square footage of the premises, and the telephone 
number of the lessors. 
On October 3, 2002, the petitioner responded to the director's request by submitting a commercial 
lease agreement commencing on July 5, 2002 and ending on July 5, 2003. In addition, counsel 
Page 4 
claimed, "There will be no need at the onset for warehouse facilities. Import brokers will be 
retained and space rented on an as needed basis until the volume justifies permanent rental of 
warehouse facilities." 
On October 9, 2002, the director denied the petition. The director determined that the petitioner 
failed to establish that the petitioner had secured sufficient physical premises to house the new 
office. The director found that the record contained no photos or other historical documentation 
of the business, or evidence that the office site is zoned for commercial use. 
On appeal, the petitioner's counsel claims that the "petition was denied because lease was not in 
commercial zone. Regulations do not require this. Many businesses are run from home offices, 
especially businesses involving Internet sales such as this one." 
Upon review, counsel's assertions are not persuasive. Although the petitioner submitted a lease 
agreement, the petitioner did not submit the requested photographs of the leased premises, 
describe its anticipated space requirements for its import business, or submit any further 
additional evidence such as a copy of the petitioner's utility bills, trash removal bills, telephone 
bills, water bills, and financial records as requested by the director. Therefore, the existence of the 
office is questionable. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). Furthermore, the 
petitioner initially presented its lease as a commercial lease and indicated in its business that the 
leased premises is a retail store. On appeal counsel concedes that the petitioner's lease is merely 
for a home office. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Moreover, willful 
misrepresentation in these proceedings may render the beneficiary inadmissible to the United 
States. Section 212(a)(6)(C) of the Act. 
In sum, based on the insufficiency of the information furnished, it cannot be concluded that the 
petitioner had secured sufficient space to house the new office. For this reason, the petition may 
not be approved. 
The second issue in this proceeding is whether the petitioner will support an executive or 
managerial position within one year of the approval of the petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 IOl(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.) 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 lOl(a)(44)(B), provides: 
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. 
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 
nonimmigrant 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. 
The petitioner initially submitted minimal evidence describing the nature of the proposed United 
States operation. On July 11, 2002, the director issued a request for additional evidence. In 
particular, the director requested: 1) a description in detail of the type of business to be conducted 
in the United Stats; 2) an explanation of how the new company will grow to be a sufficient size to 
support a managerial or executive position; 3) a copy of the U.S. entity's business plan for 
Page 6 
commencing the start-up of the company that gives specific details and dates; and, 4) a detailed 
proposed organizational chart and position descriptions for the U.S. entity's future employees. 
In response, the petitioner submitted a business plan describing its purpose, the company's 
history, marketing, and management plan, the timetable for operations, customers and services, 
market analysis, profit and loss statements, and an organizational chart. 
On October 9, 2002, the director denied the petition because the petitioner failed to establish that 
the petitioner would support a managerial or executive position within one year of the approval. 
The director found that the petitioner submitted: 1) an insufficient description of the day-to-day 
duties inherent in each of the subordinate employees' positions; 2) insufficient evidence that the 
beneficiary will function at a senior level within an organizational hierarchy; and, 3) no evidence 
to support the business plan projections. 
On appeal, counsel claims the "the director failed to justify or explain his conclusion that the 
business plan is inadequate, and asserts that the denial was based on mere speculation." 
In examining the business plan, the precedent decision, Matter of Ho, 22 I&N Dec. 206, 213 
(Comm. 1988), lists possible criteria for establishing an acceptable business plan. "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." The decision concluded, "Most importantly, the business plan must 
be credible." Id. at 213. Although Matter of Ho, id., addresses the specific requirements for the 
immigrant investor visa classification, the discussion of the business plan requirements is 
instructive for the L-1A new office requirements. 
On review, the petitioner's business plan is general. For instance, the business plan lists the 
company's history, marketing trends, timetables, and an overview of the products. These goals 
are non-specific and broad as the petitioner indicated that from October to December 2002, 
"[a]rrangements are made for import of clothing items from Colombia. A campaign is initiated 
for the wholesale marketing of ethnic food products to local outlets." In addition, the petitioner 
described in an organizational chart and in the business plan that the proposed U.S. management 
plan included two directors and Internet and retail sales personnel. However, it is unclear, as 
correctly stated by the director, how the company will grow to a size capable of supporting a 
managerial level position within one year. Although the petitioner submitted brief descriptions of 
two of the subordinate employees' duties, the descriptions are uninformative in determining 
whether the U.S. office will support a managerial or executive position within one year of its 
approval. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Crafr of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
In addition, although the AAO acknowledges that the beneficiary may perform some non- 
managerial or non-executive tasks during the first year of operation, it is uncertain how the 
beneficiary will be relieved from primarily performing these nonqualifying duties. The petitioner 
failed to adequately describe the beneficiary's duties. Specifics are clearly an important indication 
Page 7 
of whether a beneficiary's duties are 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. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). In sum, the 
petitioner has failed to clearly establish the proposed nature of the office describing the scope of 
the entity and its organizational structure. See 8 C.F.R. 5 214.2(1)(3)(v)(C)(l). Thus, given the 
business plan's generalities and lack of applicable information, it cannot demonstrate whether the 
new office will support a manager or executive within one year of filing this petition. For this 
additional reason, the petition may not be approved. 
Beyond the decision of the director, the record contains insufficient evidence to establish that the 
overseas company employed the beneficiary in a primarily managerial or executive capacity. As 
previously stated, the petitioner must submit evidence that within three years preceding the 
beneficiary's application for admission into the United States, the foreign organization employed 
the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year. See 8 C.F.R. 5 214,2(1)(3)(v)(b). On review, the petitioner 
provided a vague description of the beneficiary's duties that failed to establish what day-to-day 
duties the beneficiary performs. For instance, on the Form 1-129, the petitioner described the 
beneficiary's foreign duties as "Manages Company." The petitioner did not, however, describe 
how the beneficiary managed the foreign entity or what duties are required to manage the foreign 
operation. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Crrrfr of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). The AAO concludes that the petitioner has failed to establish that the beneficiary 
has been employed in a qualifying managerial or executive capacity abroad as required by 8 
C.F.R. 5 214.2(1)(3)(v)(b). For this additional reason, the petition may not be approved. 
Another issue not raised by the director is whether the petitioner had established that a qualifying 
relationship existed between it and the foreign entity abroad. On review, based upon the minimal 
documentation submitted, the petitioner had not persuasively demonstrated that there was a 
qualifying relationship between and U.S. entity and a foreign entity pursuant to 8 C.F.R. 
5 2 14.2(I)(l)(ii)(G). 
In defining the nonimmigrant classification, the regulations specifically provide for the temporary 
admission of an intracompany transferee "to the United States to be employed by a parent, 
branch, affiliate, or subsidiary of [the foreign firm, corporation, or other legal entity]." 8 C.F.R. 5 
214.2(1)(1)(i) (emphasis added). The regulations define the term "branch" as "an operating 
division or office of the same organization housed in a different location." 8 C.F.R. 5 
214.2(1)(l)(ii)(J). CIS has recognized that the branch office of a foreign corporation may file a 
nonimmigrant petition for an intracompany transferee. See Matter of Kloetti, 18 I&N Dec. 295 
(Reg. Comm. 1981); Matter of Leblanc, 13 I&N Dec. 816 (Reg. Comm. 1971); Matter of Schick, 
13 I&N Dec. 647 (Reg. Comm. 1970); see also Matter of Penner, 18 I&N Dec. 49, 54 (Comm. 
1982)(stating that a Canadian corporation may not petition for L-IB employees who are directly 
employed by the Canadian office rather than a United States office). When a foreign company 
establishes a branch in the United States, that branch is bound to the parent company through 
common ownership and management. A branch that is authorized to do business under United 
States law becomes, in effect, part of the national industry. Matter of Schick, supra at 649-50. 
The petitioner has failed to submit documentation to establish that the U.S. entity is a branch 
office of the foreign company. The petitioner did not submit probative evidence such as a state 
business license establishing that the foreign corporation is authorized to engage in business 
activities in the United States. Further, the petitioner submitted a copy of its stock certificate and 
evidence that it was incorporated in the State of New York on June 20, 2002. If the petitioner 
submits evidence to show that it is incorporated in the United States, then that entity will not 
qualify as "an . . . office of the same organization housed in a different location," since that 
corporation is a distinct legal entity separate and apart from the foreign organization. See Matter 
of M, 8 I&N Dec. 24,50 (BIA 1958, AG 1958); Matter of Ayhrodite Investments Limited, 17 I&N 
Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). If 
the claimed branch is incorporated in the United States, CIS must examine the ownership and 
control of that corporation to determine whether it qualifies as a subsidiary or affiliate of the 
overseas employer. 
Although the petitioner submitted a copy of its stock certificate indicating that the foreign entity 
is the owner of 100 shares of the U.S. entity, as general evidence of a petitioner's claimed 
qualifying relationship, stock certificates alone are not sufficient evidence to determine whether a 
stockholder maintains ownership and control of a corporate entity. The corporate stock certificate 
ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder 
meetings must also be examined to determine the total number of shares issued, the exact number 
issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting 
of shares, the distribution of profit, the management and direction of the subsidiary, and any other 
factor affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N 
Dec. 362 (BIA 1986). Without full disclosure of all relevant documents, CIS is unable to 
determine the elements of ownership and control. The record does not contain sufficient evidence 
demonstrating that the petitioner qualifies as a subsidiary or affiliate of the foreign entity. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Further, as a matter of law, the beneficiary is ineligible for the classification sought. It is 
fundamental to this nonirnrnigrant classification that there be a United States entity to employ the 
beneficiary. In order to meet the definition of "qualifying organization," there must be a United 
States employer. See 8 C.F.R. 214.2(1)(l)(ii)(G)(2). The petition includes evidence, including an 
IRS Form 1040 with Schedule C, that demonstrates that the beneficiary is doing business as a 
sole proprietorship. A sole proprietorship is a business in which one person operates the business 
in his or her personal capacity. Black's Law Dictionary 1398 (7th Ed. 1999). Unlike a 
corporation, a sole proprietorship does not exist as an entity apart from the individual proprietor. 
See Matter of United Investment Group, 19 I&N Dec. 248, 250 (Comm. 1984). As in the present 
matter, if the petitioner is actually the individual beneficiary doing business as a sole 
proprietorship, with no authorized branch office of the foreign employer or separate legal entity 
in the United States, there is no U.S. entity to employ the beneficiary and therefore no qualifying 
organization. Therefore, after careful consideration, the AAO concludes that the petitioner failed 
to establish that a qualifying relationship exists between the petitioner and foreign entity. For this 
further reason, the petition may not be approved. 
One remaining issue beyond the decision of the director is whether the beneficiary's services are 
for a temporary period. The petitioner indicates that the beneficiary is the sole owner of both 
companies. The regulation at 8 C.F.R. 5 214.2(1)(3)(vii) states that if the beneficiary is an owner 
or major stockholder of the company, the petition must be accompanied by evidence that the 
beneficiary's services are to be used for a temporary period and that the beneficiary will be 
transferred to an assignment abroad upon the completion of the temporary services in the United 
States. In the absence of persuasive evidence, it cannot be concluded that the beneficiary's 
services are to be used temporarily or that he will be transferred to an assignment abroad upon 
completion of his services in the United States. 
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 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), afs'd. 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). 
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. 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: office: CALIFORNIA SERVICE CENTER Date: 2 3 2~5 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 1101(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. 
i"-- &- 
+Robert P. Wiemann, Director " 
Administrative Appeals Office 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner claims that it is a subsidiary of Invest One Sp. z.o.o., located in Poland. The 
petitioner is a distributor of print media products. The U.S. entity was incorporated in Arizona on 
October 24, 2001. The petitioner seeks to hire the beneficiary as a new employee to open its U.S. 
office. Accordingly, in April 2002, the U.S. entity petitioned Citizenship and Immigration 
Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-1A) 
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 
1101(a)(15)(L), as an executive or manager for two years. The petitioner endeavors to employ the 
beneficiary's services as the U.S. entity's chief operating officer. 
On May 20, 2002, the director denied the petition because the petitioner has not established that 
the beneficiary has been employed abroad in a managerial or executive capacity. The director 
also determined that the beneficiary will not be employed in a primarily executive or managerial 
capacity for the U.S. entity and that the U.S. entity will not support a managerial or executive 
position within one year of operation. 
On appeal, the petitioner's counsel claims that the petitioner is exempt from the new office 
regulatory requirements. Counsel also states that the beneficiary's duties abroad are primarily 
executive and that the petitioner will support a manager or executive within one year. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1101(a)(15)(L), the petitioner must meet certain criteria. 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. Furthermore, 
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. 
Pursuant to 8 C.F.R. 5 214.2(1)(3), 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. 
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 hirnfher 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. 
(v) 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; 
(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 first issue in this proceeding is whether the petitioning entity is considered a new office as 
defined by 8 C.F.R. 5 214.2(1)(l)(ii)(F). 
The regulations at 8 C.F.R. 3 214.2(1)(l)(ii)(F) and (H) state: 
(F) New office means an organization which has been doing business in the 
United States through a parent, branch, affiliate, or subsidiary for less than one 
year. 
(H) Doing business means the regular, systematic, and continuous provision 
of goods andfor services by a qualifying organization and does not include the 
mere presence of an agent or office of the qualifying organization in the United 
States and abroad. 
On appeal, counsel asserts that the new office standard should not be applied because at the time 
of filing the L-1 petition the U.S. entity can already support the services of a full-time manager or 
executive. At the time of filing on April 25, 2002, the petitioner submitted the employment 
contracts dated March 18, 2002 and a copy of its payroll records for the periods ending April 5, 
2002, April 19, 2002, and May 3,2002 for these two employees. 
On review, the AAO finds that the petitioning entity has been doing business less than one year. 
The petitioning entity was incorporated on October 24, 2001. The petitioner filed for L-1A 
classification for the beneficiary on April 4, 2002. In addition, at the time of filing, the petitioner 
indicated on Form 1-129 that the beneficiary was coming to the U.S. to open a new office. Since 
the petitioner has been doing business less than one year, it qualifies as a new office as defined by 
8 C.F.R. § 214.2(1)(l)(ii)(F) and (H). 
The AAO notes that counsel cites a letter issued by the Office of Adjudications to support 
counsel's assertion regarding the new office standard. However, the letters and correspondence 
issued by the Office of Adjudications are not binding on the AAO. Letters written by the Office 
of Adjudications do not constitute official Citizenship and Immigration Services policy and will 
not be considered as such in the adjudication of petitions or applications. Although the letter may 
be useful as an aid in interpreting the law, such letters are not binding on any CIS officer as they 
merely indicate the writer's analysis of an issue. See Memorandum from Thomas Cook, Acting 
Associate Commissioner, Office of Programs, Significance of Letters Drafted by the Ofice of 
Adjudications (December 7,2000). 
The AAO now turns to the second issue in this proceeding of whether the beneficiary has been 
employed in a managerial or executive capacity abroad. Section 101(a)(44)(A) of the Act, 8 
U.S.C. 5 1101(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) 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. 3 1101(a)(44)(B), provides: 
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. 
iary's foreign entity duties as the "CEO of 
and distribution and investment company. 
new subsidiaries." 
The petitioner also submitted an organizational chart describing the foreign entity's hierarchy. 
The foreign entity's organizational chart indicated that the beneficiary supervises four employees 
including a vice president, office director, advertising director, and one secretary. The petitioner 
described the beneficiary's duties as: 
40%: Manage on a daily-basis all investment of corporate finances (includes 
analysis of cash flow, allocation of financial resources in foreign currency 
diversifying investments and stock portfolio, review of stock market quotes in 
Polish stock market and international stock markets and coordination of stock 
investments.) Establish investment goals for the company 
30%: Direct and oversee establishment of new corporate subsidiaries; participate 
(in capacity as PresidentKEO on Invest on board of directors for 
new corporate subsidiaries. 
20%: Attend exhibitions to locate new investment opportunities and market 
current investments; for locating and determining new business opportunities 
(e.g. via investment publications and the Internet) 
10% Communicate with lawyers, financial advisors, partners, vendors, and 
clients via e-mail and telephone; meet with same 
.m 
Page 6 
The petitioner also submitted an April 24, 2002 letter stating that "the beneficiary has been 
continuously employed in an executive capacity since January 1999 and is talented in marketing 
and management." 
In a request for additional evidence, the director requested a copy of the foreign entity's 
organizational chart listing the employees under the beneficiary's supervision. The director also 
requested a more detailed description of the beneficiary's duties abroad indicating the percentage 
of time the beneficiary spends in each of the listed duties. 
In response, the petitioner resubmitted the foreign entity's organizational chart described above. 
In the May 14, 2002 response letter, the petitioner stated that the number of employees is not 
determinative. The petitioner stated that the beneficiary is an executive and reiterated the 
statutory definition of an executive pursuant to section 101(a)(44)(B) of the Act. 
In his decision, the director denied the petition and determined that the petitioner had not 
established that the beneficiary had been employed abroad in a primarily managerial or executive 
capacity. The director found that the beneficiary was providing the services of the business. The 
director also found that the employees working under the supervision of the beneficiary perform 
the duties of their particular position rather than work through other executives, managers, or 
professionals. 
On appeal, counsel states that the beneficiary's duties as president and CEO of the foreign entity 
are primarily executive in nature. Counsel states the beneficiary directs the company's investment 
activities which is a major function of the organization. Counsel describes the beneficiary as 
being "directly responsible for the investment by overseeing the investment of all corporate 
finances and is directly responsible for the investment opportunity. He establishes goals and 
policies for the investment component of the foreign entity and all investment decisions are 
completely within his discretion." In addition, counsel asserts that the beneficiary fits into the 
definition of an executive because he acts independently and receives no supervision or direction 
from higher-level executives. Finally, counsel asserts that the director's findings were based on 
the fact that the foreign entity is small. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). On review, the 
petitioner has failed to establish that the beneficiary is employed in a managerial or executive 
capacity abroad as required by 8 C.F.R. 5 214.2(1)(3)(v)(B). The petitioner provided a vague and 
nonspecific description of the beneficiary's duties that fails to establish what the beneficiary does 
on a day-to-day basis. The beneficiary's foreign duties include "analysis of cash flow, allocation 
of financial resources in foreign currency diversifying investments and stock portfolio, review of 
stock market quotes in Polish stock market and international stock markets and coordination of 
stock investments." The petitioner did not, however, define or clarify these duties, or explain how 
they are executive in nature. Specifics are clearly an important indication of whether a 
beneficiary's duties are 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). Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
Page 7 
these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of Califontin, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In addition, the beneficiary attends exhibitions to locate new investment opportunities and 
markets current investments. The petitioner describes the beneficiary as being involved in the 
negotiating process of setting up prospective investments. Since the beneficiary actually 
researches, markets, and negotiates. he is performing the tasks necessary to provide a service or 
product rather than directing a function of the foreign entity. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter of Church Scientology Intenzatio?zal, 19 
I&N Dec. 593,604 (Cornm. 1988). 
The AAO will now turn to whether the beneficiary is acting as a function manager for the foreign 
entity. On appeal, the petitioner claims that the beneficiary is an executive who directs a function 
of the foreign entity. 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 101(a)(44)(A)(ii) of the 
Act, 8 U.S.C. 5 1 lOl(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. In addition, the petitioner must provide a comprehensive and 
detailed description of the beneficiary's daily duties demonstrating that the beneficiary manages 
the function rather than performs the duties relating to the function. As previously stated, an 
employee who primarily performs the tasks necessary to produce a product or to provide services 
is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology Intematiotzal, supm. In this matter, the petitioner claims that the beneficiary is 
directly responsible for the function of investment opportunities. However, to allow the broad 
application of the term "essential function" to include such broad claims, without identifying a 
specific function, would render the term meaningless. The beneficiary's duties indicate that the 
beneficiary is performing the function rather than directing the function. 
Moreover, counsel also asserted that the director based his decision on the small size of the 
foreign entity. As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a 
factor in determining whether an individual is acting in a managerial or executive capacity, CIS 
must take into account the reasonable needs of the organization, in light of the overall purpose 
and stage of development of the organization. Counsel 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 nonimmigrant visa to a manager or executive. See section 
IOl(a)(44)(C), 8 U.S.C. 5 1101(a)(44)(C). However, it is appropriate for CIS to consider the size 
of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, 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. Systronics Corp. v. INS, 153 F. Supp.2d 7, 15 (D.D.C. 
2001). The size of a company may be especially relevant when CIS notes discrepancies in the 
record and fails to believe that the facts asserted are true. Id. 
After careful consideration of the evidence, the AAO concludes that the beneficiary has not been 
employed in a qualifying managerial or executive capacity abroad. For this reason, the petition 
may not be approved. 
The third issue in this proceeding is whether the petitioner will support an executive or 
managerial position within one year of operation. Section lOl(a)(44)(A) of the Act, 8 U.S.C. 
$ 1 101(a)(44)(A), provides: 
On April 25, 2002, the petitioner filed Form 1-129. On Form 1-129 the petitioner described the 
beneficiary's proposed U.S. duties as: 
Overseeing the initial start-up of the Company, representing the shareholders, 
managing the corporation, naming, hiring and supervising officers, and 
developing new business opportunities, including attending major product shows 
to advertise the [U.S. entity's] folio. 
In addition, the petitioner described the beneficiary's proposed duties in an April 24, 2002 letter 
as the chief operating officer in a new office who will perform the duties listed above in addition 
to reporting directly to the foreign entity. 
On June 28, 2002, the director denied the petition and determined that the proposed duties did not 
establish that the beneficiary will be employed in a primarily executive or managerial capacity 
within one year if the petition was approved. The director stated that "given the fact that the 
foreign entity does not support the beneficiary in an executive or managerial capacity, it is not 
clear how the petitioning entity will support the beneficiary in a managerial or executive capacity 
within one year if the petition was approved." 
On appeal, counsel states that the director's decision to deny the petition stating that the new 
office will not support the beneficiary in a primarily "executive or managerial capacity within one 
year is entirely based on the erroneous determination that [the beneficiary] is not primarily 
engaged in executive duties with the foreign entity." 
As previously stated, in examining the executive or managerial capacity of the beneficiary, the 
AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). 
On review, the AAO is not persuaded that the beneficiary will be employed in a primarily 
managerial or executive capacity or that the petitioner will support a managerial or executive 
position within one year of the visa approval. The petitioner has provided a very brief, vague, and 
nonspecific description of the beneficiary's proposed duties that fail to establish what the 
beneficiary's duties will be on a day-to-day basis. For example, the petitioner states that the 
beneficiary's duties include "Overseeing the initial start-up of the Company, representing the 
shareholders, managing the corporation" However, these duties are generalities that fail to 
describe how the beneficiary will oversee the initial start-up phase or manage the corporation. 
Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofici, supm. 
In addition, the petitioner describes the beneficiary as being involved in developing new business 
opportunities. Since the beneficiary will actually be developing the business opportunities. he will 
be performing a task necessary to provide a service or product. As previously stated, an employee 
who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, supra. The beneficiary's proposed duties suggests that the beneficiary 
will not be relieved from performing nonqualifying managerial or executive duties within the first 
year of operation. Although the petitioner stated that it supports two full-time managers, the 
petitioner failed to provide evidence of the claimed employees or adequately describe the 
organizational structure of the U.S. entity. It is also unclear how the foreign organization supports 
the petitioner's business plan or its relationship to the U.S. entity. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. 
Fedin Bros. Co., Ltd. v. Sa~fn, supra. 
After careful consideration of the evidence, the AAO concludes that the petitioner will not 
support a managerial or executive position within one year of operation. For this additional 
reason, the petition may not be approved. 
Beyond the decision of the director, a related issue is whether the petitioner has established that it 
has secured sufficient physical premises to house the new office. The petitioner submitted a copy 
of its lease. However, the lease that the petitioner submitted is a residential rental agreement 
rather than a commercial lease for the distribution of its print media products. Based on the 
insufficiency of the information furnished, it cannot be concluded that the petitioner has secured 
sufficient space to house the new office. 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, 591-92 (BIA 1988). 
For this additional reason, the petition may not be approved. 
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. 3 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.