dismissed L-1A Case: Investment / Retail

identifyingdatadeletedto
preventclearlyu.i''1warranted
iDvaaioDofpcnoaa1privacy
PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington. DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 06 157 50627 Office: VERMONT SERVICE CENTER Date: SEP 0 e2001
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 1 01(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 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.
/~_._ ~~-
Rbbe~n~, Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 157 50627
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(15)(L). The petitioner, a Georgia limited liability company, is described as an investment
company that intends to operate gas stations/convenience stores and a poultry farm. The petitioner states that
it is an affiliate of Jiwani Poultry Farm, located in India. The petitioner seeks to employ the beneficiary as the
president and general manager of its new office in the United States.
The director denied the petition concluding that the petitioner did not establish: (1) that the U.S. company has
sufficient physical premises to house the new office; (2) that the beneficiary has been employed by the foreign
entity in a qualifying managerial or executive capacity; or (3) that the beneficiary would be employed in a
primarily managerial or executive capacity within one year. The director also found insufficient documentary
evidence establishing the size of the United States investment and the financial ability of the foreign entity to
remunerate the beneficiary as well as to commence doing business in the United States.
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 for the petitioner asserts that the petitioner
submitted evidence that it signed a commercial lease agreement, and provided sufficient evidence to establish
that the beneficiary will manage an essential function within the company. Counsel further contends that the
beneficiary served in a qualifying position abroad as managing partner, and that the U.S. company has
sufficient funds to commence doing business in the United States. Counsel submits a brief and additional
evidence in support of the appeal.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
EAC 06 157 50627
Page 3
(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. § 2l4.2(1)(3)(v) also provides that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or be employed in a new office in the United
States, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment involves executive or managerial authority over the new
operation; and
(C) The intended United States operation, within one year of the approval of the petition,
will support an executive or managerial position as defined in paragraphs (1)(1)(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 matter is whether the petitioner has secured sufficient physical premises to house the new
office in the United States, as required by 8 C.F.R. § 214.2(l)(3)(v)(A).
At the time of filing on April 19,2006, the petitioner indicated its address as "5813 Summer Place Parkway,
Hoover, Alabama," and also identified this as the beneficiary's U.S. address. The petitioner did not submit a lease
agreement to show that it had secured sufficient premises to house the business, which initially intends to operate
a gas station and convenience store.
EAC 06 157 50627
Page 4
On June 21, 2006, the director issued a request for evidence, in part, instructing the petitioner to submit an
original lease agreement and a statement from the petitioner's lessor identifying the square footage of the leased
premises. The director also commented that the petitioner had not shown that it had "warehouse and shipping and
receiving facilities," however, the AAO notes that such facilities would not appear to be required for the
petitioner's intended retail business.
In a response dated September 7, 2006, the petitioner submitted a "commercial office lease agreement" entered
into by the U.S. company on July 17, 2006. According to the lease, the space consists of a 1,200 square foot store
located in a shopping center. The commencement date for the lease is August 1, 2006. The lease states that the
petitioner may operate a "general office" in the leased space.
The director denied the petition concluding that the petitioner did not establish that it had sufficient physical
premises to house the new office.
On appeal, counsel for the petitioner re-submits a copy of its lease agreement signed on July 17, 2006.
Upon review, there is no evidence that the petitioner had secured any physical premises to house the new office as
of the date the petition was filed in April 2006. The petitioner must establish eligibility at the time of filing the
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or
beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978).
Thus, the commercial lease agreement signed subsequent to the director's issuance of a request for evidence,
and more than three months after the petition was filed, need not be considered in determining the petitioner's
eligibility as of the date of filing. Further, although the lease agreement need not be considered, the AAO
notes that it is unclear from the agreement what type of space has been leased by the company, as the
agreement refers to both a "store" and "general office space." If the space is a store, then it appears the
petitioner intends to operate a business other than a gas station or poultry farm, as indicated in the petitioner's
statements and business plan.
Absent evidence that the petitioner had secured a commercial lease agreement prior to filing the petition on
April 19,2006, the petitioner has not met the requirement set forth at 8 C.F.R. § 214.2(l)(3)(v)(A). For this
reason, the appeal will be dismissed.
The second issue in this matter is whether the petitioner established that the beneficiary has been employed by
the foreign entity in a qualifying managerial or executive capacity, as required by 8 C.F.R. §
214.2(l)(3)(v)(B).
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
EAC 06 157 50627
Page 5
(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. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
In a letter dated April 14, 2006, the petitioner described the beneficiary's duties with the foreign entity as
follows:
He has been the Managing Partner of our poultry farm in India since 2003. In this position,
he ran all aspects of our business, including managing the day-to-day operations of the farm,
supervising 8 employees, ordering supplies, managing the distribution of our products,
conducting market studies, and overseeing the financial aspects of the farm.
The petitioner submitted an employee list for the foreign entity, identifying eight workers, and monthly
payroll rosters for the period July 2005 through February 2006. The payroll roster lists one employee as
"manager," five laborers, and two helpers.
In her request for evidence dated June 21, 2006, the director requested: (1) a letter from the foreign employer
describing the nature of the beneficiary's employment, including a complete position description identifying
all duties performed; (2) a complete position description for all employees in the foreign office, including a
EAC 06 157 50627
Page 6
breakdown of the number of hours devoted to each of the employee's duties on a weekly basis, including one
for the beneficiary; (3) and copies of the foreign employees' pay stubs for the last two years.
In response, the petitioner submitted a letter signed by a partner of the foreign entity, dated September 5,
2006, in which the beneficiary's duties were described as follows:
The beneficiary held a position of senior-most authority. As a Managing Partner (shareholder
300/0), he determined all business decisions, had hiring and firing authority, and held the
ability to bind the company to any negotiation, contract or sale. In all, he operated with
absolute discretion in his ability to direct the company. Specifically, the beneficiary was
charged with the following duties:
1) direct and coordinate activities of businesses concerned with the production, pricing,
sales and distribution - 400/0;
2) manage staff, preparing work schedules and assigning specific duties - 5%;
3) determine staffing requirements, and interview, hire, and train new employees, or
oversee those personnel processes - 5%;
4) monitor businesses to ensure that they efficiently and effectively provide needed
services while staying within budgetary limits - 20%;
5) oversee activities directly related to making products - 5%;
6) direct and coordinate organization's financial and budget activities to fund operations,
maximize investments, and increase efficiency - 100/0; and
7) determine quality of poultry to be sold, and set prices based on forecasts of customer
demand.
The beneficiary managed a staff of eight and additional seasonal workers.
The petitioner submitted an organizational chart depicting the beneficiary and two other partners at the top of
the hierarchy. The subordinate employees were identified as an accountant, a sales executive, a supervisor­
poultry chicks, a supervisor - eggs, a laborer/caretaker, a veterinary assistant, a poultry van driver, and
seasonal workers. The petitioner also provided position descriptions for the positions of accountant, the two
supervisors, "farm workers," and "seasonal workers." The subordinate supervisors were described as
managing the day-to-day operations of "poultry chicks" or "eggs"; carrying out production, financial and
marketing decisions related to the farm; hiring, training and supervising employees and contract workers to
carry out the day-to-day activities; and preparing cost and production records.
The director denied the petition on October 18, 2006 concluding that the petitioner failed to establish that the
beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. The
director did not specifically reference the evidence submitted with respect to the beneficiary's foreign
employment.
EAC 06 157 50627
Page 7
On appeal, counsel asserts that the beneficiary has been employed as managing partner of the foreign entity
since 2003. Counsel re-submits the evidence offered in support of the petitioner's response to the request for
evidence.
Upon review, the petitioner has not established that the beneficiary has been employed by the foreign entity in
a primarily managerial or executive capacity.
As a preliminary matter, it must be noted that when denying a petition, a director has an affirmative duty to
explain the specific reasons for the denial; this duty includes informing a petitioner why the evidence failed to
satisfy its burden of proof pursuant to section 291 of the Act, 8 U.S.C. § 1361. See 8 C.F.R. § 103.3(a)(l)(i).
Upon review of the director's decision, the reasons given for the denial are conclusory with no specific
references to the evidence entered into the record. As the AAO's review is conducted on a de novo basis the
AAO will herein address the petitioner's evidence & eligibility. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d
Cir. 1989)(noting that the AAO reviews appeals on a de novo basis).
The petitioner's initial position description of the beneficiary's position was too brief and generalized to
establish that he has been employed in a primarily managerial or executive capacity with the foreign entity.
For example, the petitioner's statements that the beneficiary "ran all aspects of our business," managed the
"day-to-day operations," managed the distribution of products, and oversaw "financial aspects" of the
business was insufficient to explain what the beneficiary actually does on a day-to-day basis. It was unclear
based on the evidence presented who was responsible for routine distribution and financial functions; or how
the non-managerial work of the farm was divided among the eight workers, seven of whom were identified on
the petitioner's payroll records only as "laborer" or "helper." 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), off'd, 905 F.2d 41 (2d. Cir. 1990).
Furthermore, the petitioner initially indicated that the beneficiary's duties include such non-managerial duties
as ordering supplies, conducting marketing studies, and supervising non-professional farm workers. Based on
the initial filing, it could not be determined whether the claimed managerial duties constituted the majority of
the beneficiary's duties, or whether the beneficiary primarily performs non-managerial administrative,
operational and first-line supervisory duties. The petitioner's initial description of the beneficiary's job duties
does not establish what proportion of the beneficiary's duties is managerial in nature, and what proportion is
actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991).
Accordingly, the director reasonably requested that the foreign entity clarify the nature of the beneficiary's
duties and the amount of time he spends on each duty, as well as provide detailed position descriptions for the
beneficiary's subordinate employees. Although the petitioner did submit a letter from the foreign entity
offering a lengthier description of the beneficiary's duties and the approximate percentage of time he devotes
to each, the description provided is composed of language taken almost verbatim from an occupational
classification entry on the U.S. Department of Labor's Occupational Information Network (O*Net). See
O*Net Online, "Summary Report for: 11-1021.00 - General and Operations Managers," available at
hUpj(qnljpg,QUGtQ9D.t9C·Qrg(ljnls/..$UP1JFm:yj.J..J..:J.Q2J.,.QQ (accessed on August 16, 2007). Generic job
EAC 06 157 50627
Page 8
descriptions compiled by the U.S. Department of Labor have no bearing on an assessment of this
beneficiary's duties within the context of the foreign entity's poultry business, and the petitioner cannot satisfy
its burden of proof by paraphrasing or wholly repeating such descriptions; the regulations require the
petitioner to submit a detailed description of the beneficiary's actual duties. See 8 C.F.R. § 214.2(l)(3)(ii). The
petitioner has failed to provide any detailed or credible explanation of the beneficiary's activities in the course
of his daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros.
Co., Ltd v. Sava, 724 F. Supp. at 1108.
Furthermore, the beneficiary's previously stated responsibilities for performing such non-qualifying duties as
ordering supplies and performing market studies were not included in the petitioner's subsequent job
description, while new generic duties were added. The purpose of the request for evidence is to elicit further
information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. §
103.2(b)(8). When responding to a request for evidence, a petitioner cannot offer a new position to the
beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, or
its associated job responsibilities. Therefore, the analysis of this criterion will be based on the job description
submitted with the initial petition. As discussed above, the initial position description was not sufficient to
establish the beneficiary's employment in a primarily managerial or executive capacity.
The definitions of executive and managerial capacity have two separate requirements. First, the petitioner
must show that the beneficiary performs the high-level responsibilities that are specified in the definitions.
Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities and
does not spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d
1533 (Table), 1991 WL 144470 (9th Cir. July 30,1991). The AAO does not doubt that the beneficiary had
oversight authority over the foreign entity's poultry farm, but the record does not establish what duties he
primarily performed on a day-to-day basis.
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and his or her
subordinate employees, the nature of the petitioner's business, the employment and remuneration of
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate
employees and inflated job titles are not probative and will not establish that an organization is sufficiently
complex to support an executive or manager position. An individual whose primary duties are those of a
first-line supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her
supervisory duties unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act.
While the petitioner has submitted evidence that the foreign entity employs eight workers, the AAO notes that
the company's own payroll records show that seven of these employees are designated as laborers or helpers.
However, in response to the request for evidence, the petitioner claimed that these same employees occupy
the positions of accountant, sales executive, supervisors, veterinary assistant, driver, and laborer/caretaker. 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
EAC 06 157 50627
Page 9
submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591­
92 (BIA 1988). In addition, the petitioner has not submitted evidence that it utilizes seasonal workers, as the
payroll documents submitted all show exactly eight employees. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. 158,165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972». Further, upon review of the position titles and duties assigned to the
foreign workers in response to the director's request for evidence, the AAO questions how a poultry farm
operates with a managing partner, an accountant, a sales executive whose duties have not been described, two
supervisors who do not appear to supervise anyone, one driver, one veterinary assistant, and a single farm
laborer.
In the present matter, the totality of the record does not support a conclusion that the beneficiary's
subordinates are supervisors, managers, or professionals. Instead, the record indicates that the beneficiary's
subordinates likely perform the actual day-to-day labor involved in operating a poultry farm. The petitioner
has not provided evidence of an organizational structure sufficient to elevate the beneficiary to a supervisory
position that is higher than a first-line supervisor of non-professional employees. Pursuant to section
101(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial under the
statutory definitions based on his supervisory duties.
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. § 1101(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. In this matter, the petitioner has
not claimed that the beneficiary manages an essential function of the foreign entity, nor has the petitioner
established that the beneficiary performs primarily managerial or executive duties.
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 sections
101(a)(l5)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Pursuant to the strict statutory
definitions, section 101(a)(15)(L) of the Act does not include any and every type of "manager" or
"executive," such as staff officers or specialists, self-employed persons who perform the management
activities involved in practicing a profession or trade, or a first-line supervisor of non-professional employees.
See section 101(a)(44)(A)(iv) of the Act; see also 52 Fed. Reg. 5738, 5740 (February 26, 1987)(available at
1987 WL 127799).
Based on the foregoing discussion, the petitioner has not established that the beneficiary has been employed
by the foreign entity in a primarily managerial or executive capacity. Accordingly, the appeal will be
dismissed.
EAC 06 157 50627
Page 10
The third issue addressed by the director is whether the beneficiary would be employed by the petitioning
entity in a primarily managerial or executive capacity within one year, as required by 8 C.F.R. §
214.2(1)(v)(C).
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by
CIS regulation, that allows for a more lenient treatment of managers or executives that are entering the United
States to open a new office. When a new business is first 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 low-level 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 that first
year. In an accommodation that is more lenient than the strict language of the statute, 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.
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). At the time of filing the petition to open a
"new office," a petitioner must affirmatively demonstrate that it has acquired sufficient physical premises to
house the new office and that it will support the beneficiary in a managerial or executive position within one
year of approval. Specifically, the petitioner must describe the nature of its business, its proposed
organizational structure and financial goals, and submit evidence to show that it has the financial ability to
remunerate the beneficiary and commence doing business in the United States. Id.
In its letter dated April 14, 2006, the petitioner described the beneficiary's proposed duties as follows:
The beneficiary will serve as the U.S. Company's President, and General Manager. As such,
he will be responsible for locating and researching various gas stations to purchase and
making the ultimate decision on which locations to purchase. He will oversee all operations
of the gas stations and convenience stores, formulate all policies and procedures, will be in
charge of all future investments for the company; will oversee all marketing and promotions;
will oversee all hiring and employment practices for the company; will ensure compliance
with all local, state and federal laws; and will oversee all inventory and purchasing.
Additionally, [the beneficiary] will be responsible for researching and assessing various
poultry farms and other poultry related businesses in the United States to purchase. Once
purchased, [the beneficiary] will be responsible for overseeing the poultry business.
On June 21, 2006, the director issued a request for additional evidence to establish that the beneficiary would
be employed by the petitioner in a primarily managerial or executive capacity. The director requested: (1) a
complete position description for all proposed U.S. employees, including a breakdown of the number of hours
devoted to each duty on a weekly basis; (2) a detailed description of the type of business to be conducted by
EAC 06 157 50627
Page 11
the U.S. entity; and (3) a copy of the petitioner's business plan providing a specific timetable for each
proposed action for the first two years, starting with the date of filing the petition.
In a response dated September 7, 2006, the petitioner submitted the following description of the beneficiary's
proposed duties:
Business planning and expansion: The beneficiary will negotiate to open new businesses;
specifically work with business brokers to look for investments; work with business brokers
to perform due diligence; investigate new investment plans for the company; meet with
business brokers and investigate prospective investment deals for the company; work with
brokers to perform due diligence in order to properly investigate potential investments; liaise
with prospective sellers; negotiate leases; meet with property owners and negotiate leases;
review contracts and sale agreements; arrange for financing for business investments;
negotiate on behalf of, and bind the company in securing loans, sale agreements, contracts,
etc. 14 Hours per week.
Financial/Sales management: Establish budgetary plans for the company and ensure
compliance therewith; review daily takings with management, together with review of
banking, budgeting, accounting issues. Review monthly financial statements to determine
business expansion possibilities and ensure efficient and cost effective management of
company. Liaise with Accountant to discuss financial issues. 10 Hours per week.
Recruiting and hiring: Install management and staff teams into businesses; recruit and hire
staff; ensures that management trains staff appropriately: 4 hours per week.
Operations and administrative management: Ensure smooth operation of company by
implementing administrative operating systems through Manager and, including inventory
control. Direct purchasing of inventory, sourcing of vendors, negotiating with vendors. 8
Hours per week.
Set and implement corporate policy through Management (Manager). 4 hours per week.
The petitioner stated that the petitioner anticipated hiring five employees by the end of one year, including a
store manager, an assistant store manager and three cashiers, all of whom will report to the beneficiary. The
petitioner further indicated that the beneficiary will manage the essential function of "inventory, sales, and
marketing" and will exercise direction over the day-to-day activities for sales, inventory and operations. The
petitioner further indicated that it had already hired a management consultant in August 2006, and noted that
he would initially assist the beneficiary in opening a new poultry business, and eventually manage the
petitioner's poultry farm. The petitioner provided position descriptions for each of its proposed retail and
poultry operations workers and indicated that all retail workers would work 50 hours per week. According to
the petitioner's business plan, the poultry farm would be acquired some time after the first twelve months of
operation.
EAC 06 157 50627
Page 12
In the petitioner's business plan, the petitioner describes its initial hiring plans as follows:
We intent [sic] to hire around three to five American workers on full time or part time basis
besides our general manager [the beneficiary] who shall supervise all hired employees. Later
on we intent [sic] to hire a manager who will supervise all the junior staff.
According to the business plan, the petitioner anticipates paying salaries and wages of $8,500 to $9,500 per
quarter, and a total of $36,000 for the first year of operations.
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be
employed in a primarily managerial or executive capacity within one year. The director noted that the record
contained no comprehensive description of the beneficiary's duties, and contained insufficient evidence to
show that the beneficiary would be relieved from performing non-executive and non-managerial duties. The
director also referenced the petitioner's failure to show that the U.S. company had substantial receipts and
sales or paid salaries to subordinate employees. As the petitioner qualifies as a new office pursuant to 8
C.F .R. § 214.2(1)( 1)(ii)(F) in that it has yet to commence business operations or hire any employees, these
comments will be withdrawn. The petitioner is not required to demonstrate that it is currently doing business
or that it has hired a subordinate staff.
On appeal, counsel for the petitioner emphasizes that the petrtioner has already hired a management
consultant, and intends to hire five employees for its retail business by the end of the one-year start-up period.
Counsel re-iterates the beneficiary's proposed duties and states that he will manage the inventory, sales and
marketing functions, and exercise discretion over the day-to-day activities for sales, inventory and operations.
Upon review, the petitioner has not established that the petitioner will employ the beneficiary in a primarily
managerial or executive capacity by the end of the first year of operations.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id. 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 petitioner's proposed organizational structure, the duties of the beneficiary's
proposed subordinate employees, the petitioner's timeline for hiring additional staff, the presence of other
employees to relieve the beneficiary from performing operational duties at the end of the first year of
operations, the nature of the petitioner's business, and any other factors that will contribute to a complete
understanding of a beneficiary's actual duties and role in a business. The petitioner's 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(l)(3)(v).
While the beneficiary's position description is composed of duties that would typically be considered
managerial or executive in nature, the totality of the evidence does not support a conclusion that he would
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primarily be performing several of the duties at the end of the first year of operations. For example, the
petitioner indicates that the beneficiary will devote the largest portion of his time, 14 hours per week, to
"business planning and expansion" performing duties related to sales negotiations for new investments and
new businesses. However, according to the petitioner's business plan, the petitioner anticipates investing in
one gas station and convenience store as soon as a suitable prospect can be located, and expects to invest in a
poultry farm in approximately 12 months. No other investments are planned for the first two years of
operation, which raises questions as to whether the beneficiary would realistically devote such a large portion
of his time to investigating new businesses after the first year of operations.
The petitioner's proposed staffing levels must also be considered in determining whether the beneficiary's
proposed managerial and executive duties are plausible. Pursuant to section 101(a)(44)(C) of the Act, 8
U.S.C. § 1101(a)(44)(C), 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. Although the petitioner has stated
the petitioner's intention to hire five full-time employees for its proposed gas station and convenience store,
who would work a total of 250 hours per week, the petitioner's business plan suggests that a different hiring
plan will be put into place. As noted above, the business plan indicates that the petitioner will hire "three to
five" employees on a full-time or part-time basis, and suggests that the beneficiary will be responsible for
supervising the employees and day-to-day operations of the gas station at the end of the first year of
operations, with a manager hired to supervise the junior staff "later on." 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Given that the petitioner intends to open a retail business that typically requires long operating hours, this
discrepancy in the proposed number of employees and the uncertainty as to when a manager might be hired to
oversee the business is significant. The AAO has looked to the petitioner's financial projections and notes
that the petitioner anticipates paying wages of approximately $9,000 per quarter, an amount that could
compensate no more than three full-time employees at minimum wage. The petitioner does not appear to
have planned to pay wages to five full-time retail employees plus a management consultant by the end of its
first year of operations.
Furthermore, given that there is no evidence that the petitioner has even begun to research potential locations
for its retail operations, it is uncertain that the petitioner's business would reach its full staffing levels within
one year. The petitioner's business plan simply states "we did a lot of research on the Gas Station and
Convenience store business," and notes the company's intention to locate a store in Georgia or Alabama.
Overall, the evidence does not establish that the beneficiary would be relieved from performing non­
qualifying administrative, operational and first-line supervisory tasks within one year. The AAO has
consistently interpreted the regulations and statute to prohibit discrimination against small or medium-size
businesses. However, the AAO has also long required the petitioner to establish that the beneficiary's position
consists of primarily managerial and executive duties and that the petitioner has sufficient personnel to relieve
the beneficiary from primarily performing operational and administrative tasks.
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While the AAO recognizes that the beneficiary will exercise discretion over the day-to-day affairs of the
business, the fact that the beneficiary manages a small business is insufficient to establish that the beneficiary
is employed in a managerial or executive capacity. The petitioner has not established that it would employ
sufficient lower-level staff within one year to perform the day-to-day tasks associated with operating a retail
business, or evidence of an organizational structure sufficient to elevate the beneficiary to a supervisory
position that is higher than a first-line supervisor of non-professional employees. Contrary to the common
understanding of the word "manager," 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 1o1(a)(44)(A)(iv) of the Act; 8 C.F.R. § 214.2(l)(1)(ii)(B)(2).
The AAO acknowledges the petitioner's claim that the beneficiary would manage the essential functions of
"inventory, sales and marketing." 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. §
1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. Ifa petitioner claims
that the beneficiary is managing an essential function, the petitioner must furnish a detailed job description
that clearly explains 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 the beneficiary's
daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the
function rather than performs the duties related to the function. 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. Boyang, Ltd. v. INS., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir,
1995)(citing Matter ofChurch Scientology International, 19 I&N Dec. 593,604 (Comm. 1988)).
In this matter, the petitioner has not provided evidence that the beneficiary will manage an essential function.
In order to establish that the beneficiary manages the inventory, sales and marketing functions, the petitioner
must establish that someone other than the beneficiary will perform the non-managerial aspects of these
functions. The petitioner has not met this burden. Furthermore, the petitioner has not described the managerial
duties to be performed by the beneficiary in relation to these functions. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. at 165.
Based on the foregoing discussion, the AAO concurs with the director's conclusion that the beneficiary will
not be employed in a primarily managerial or executive capacity within one year. For this additional reason,
the appeal will be dismissed.
The final issue addressed by the director is whether the petitioner submitted sufficient evidence of the size of
the financial investment in the U.S. entity and the financial ability of the foreign entity to remunerate the
beneficiary and to commence doing business in the United States.
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At the time of filing, the petitioner submitted a copy of its bank statement for April 2006, which showed a
balance of $36,580. The petitioner also submitted a tax audit report and statement of accounts for the foreign
entity for the year ended March 31, 2005, but all figures were reported in Indian rupees.
The director subsequently requested evidence of canceled checks, letters of credit, monetary transfers or other
documentary evidence to show that the foreign entity funded the incorporation of the U.S. entity. The director
further instructed the petitioner to provide evidence of the foreign entity's ability to invest in the U.S. entity
and a copy of the foreign entity's most recent income tax return or equivalent document, with figures
converted into U.S. currency.
In response, the petitioner submitted a bank statement for the foreign entity encompassing March 8, 2006
through August 14, 2006, and showing a balance equivalent to $35,302.25. The petitioner indicated that the
"foreign entity has not transferred any funds to the United States as yet." The petitioner also provided a letter
from its U.S. bank indicated that the company had a balance of$31,268.32 as of August 24,2006.
In addition, the petitioner re-submitted the foreign entity's statement of accounts as of March 2005, but
included figures in U.S. currency. The company's gross profit was $45,658.66. Finally, the petitioner
submitted its business plan, which indicates that the company's initial capital requirement is $100,000. The
plan explains the financing as follows:
Most of our initial capital will come from business back home and other personal funds. We
already have transmitted $40,0001- to our United States bank account. Other funds will be
acquired as and when required.
The director determined that the record lacks sufficient documentary evidence establishing the size of the
United States investment and the financial ability of the foreign entity to remunerate the beneficiary, as well
as to commence doing business in the United States.
On appeal, the petitioner re-submits the bank letters from the foreign entity's and U.S. entity's banks.
Upon review, the petitioner has not submitted sufficient evidence that it will have sufficient investment to
meet its stated initial capital requirement of $100,000. The petitioner has not submitted evidence that either
the foreign entity or the petitioner's individual members have the funds available for investment in the U.S.
company. Further, the fact that the foreign entity has over $30,000 in its bank account is insufficient to
establish that these funds are available to the U.S. company to pay its anticipated start-up costs. Simply going
on record without supporting documentary evidence is not sufficient for the purpose of meeting the burden of
proof in these proceedings. Matter of SojJici, 22 I&N Dec. 158, 165 (Comm. 1998). The petitioner has not
submitted evidence on appeal to overcome the director's determination. Accordingly, the appeal will be
dismissed.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
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Page 16
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has
not been met. Accordingly, the director's decision will be affirmed and the petition will be denied.
ORDER: The appeal is dismissed.