dismissed L-1A Case: Manufacturing

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identifying data deletedto .
prevent clearly unwarr~ted
invasionof personalpnvacy
PUBLICCOpy·
U.S. Department ofllomeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 06 081 50850 Office: TEXAS SERVICE CENTER Date: Mf..'( 02 2111
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L)9 f the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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 tothat office.
~P--
~obert P. Wiemann, Chief
Administrative Appeals Office
'.'~"j SRC 06 081 50850
Page 2
DISCUSSION: The Director, Texas Service Center, denieq the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The .. AAO will dismiss the
appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of executive
director as an L-IA nonimmigrant intracompany transferee pursuant to' section 101(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1 10l(a)(l5)(L). The petitioner, a Florida limited
liability company, states that it is engaged in the manufacturing and sale of scaffolding, and industrial and'
commercial products. The petitioner claims to be a subsidiary of the parent company, Lifema, located in the
Czech Republic. The petitioner seeks to employ the beneficiary for a period of one year to open a new office
in the United States.
The director denied the petition, concluding that the record contains insufficient evidence to demonstrate:
(1) that sufficient funding or capitalization was provided to the U.S. entity from the' foreign entity; and~ (2)
that the intended United States operation, within one year of the approval of the petition, will support an
executive or managerial position.
Counsel for the petitioner filed a. timely appeal on June 12, 2006. On appeal, counsel for the petitioner
submits' a statement from the u.s. entity indicating the proposed job duties of the beneficiary in the United
States. Counsel asserts that the director did not request additional evidence of the beneficiary's proposed
duties in the United States and thus it was erroneous to base the denial on this iss~e. Counsel states that the
beneficiary will indeed by employed in an executive capacity in the United States. In addition, counsel states
the documentation that was provided with the petition evidences that sufficient funding or capitalization was
provided to the U.S. entity from the foreign entity. The petitioner sU1:>mitsabrief and new documentary
evidence in support of the appeal. . "
To establish 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 firm, corporation, or other legal entity, of an affiliate or subsidiary thereof, must.have employed
the beneficiary for one continuous year. Furtherrilore, the beneficiary'must seekto 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) further 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 (1)(1)(ii)(G) of this
section. . '"
(ii) Evidence that the alien will be employed in an executive, managerial, or
specialized knowledge capacity, including a detailed description of the services
to be perforined.
·'
••..c SRC 06 081 50850
Page 3
(iii)
(iv) .
Evidence that the alien has at least one continuous year of full time employment
1
abroad with a qualifYing organization within the three years preceding the filing
ofthe petition.
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 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 ..
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states thatifthe petition indicates that the beneficiary
is coming to the U~ited States as a manager or e~ecutive to open or to be employed in a new office in the .
'-.
.United States, the petitioner shall sl;lbmitevidence that:
(A) Sufficient physical premisesto house the new office have been secured;
(B) The beneficiary has been employed fOr one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment involved executive or managerial authority over the new operation;
and
(C) The intended United States operation, within one year of the approval of the petition,
will support an executive or managerial position as defined in paragraphs (l)(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 proceeding is whether a sufficient financial investment was provided to the U.S. entity
from the foreign entity. The regulations at8 C.F.R. § 214.2(1)(3)(v) requires the petitioner to submit evidence
of the size of the United States Investment and the financial ability to commence doing business in the United
States.
The nonimmigrant petition was filed on January 17, 2006. In support of the petition, the petitioner submitted
a copy of the taxes paid by the beneficiary, the claimed owner of the foreign company from 1999 through
2002, and a. copy of the bank account for the foreign company. Both documents were not translated into
English. Instead, the translator, who is also the beneficiary, gave a brief description of each document.
Because the petitioner failed to submit certified translations of the documents, the AAO cannot determine
SRC 06 081 50850
Page 4
whether the evidence supports the petitioner's claims. See 8 C.F.R. § 103.2(b)(3). Accordingly, the
evidence is not probative and will not be accorded any weight in this proceeding. Further, the AAO notes
that the company documents submitted are dated between 1999 and 2002 and are not indicative of the
foreign entitis current financiat'status.
On January 27, 2006, the director requested that the petitioner submit documentary evidence of the funding
or capitalization of the u.s.company. The director stated that such evidence would consist of copies of wire
transfers showing the transfer of funds from the foreign company to the u.s. entity or other documentary
evidence of the commitment of funds by the foreign company.
In response, the petitioner submitted several current documents of the foreign company dated between 2005
and 2006, including invoices, sales receipts, a sales contract, a work contract, a copy of the foreign company:s
bank account,and a copy of the beneficiary's 2005 income tax returns. As discussed above, since these
\ .
documents were not translated in full, the AAO will not consider them.
Counsel for the petitioner also stated the following:
In accordance with [the foreign company], and [the beneficiary], there currently a pending
wire transfer that will be taking place from the Company [the foreign company] in Czech
Republic's bank to the Bank of America account that has been created for [the u.s. entity],
the Florida based company in the amount of $15,000.00 that will be officially taking place
on the first week of May 2006 in order to secure and commit the funds by the foreign
company for the u.s.company.
In addition, the petitioner submitted a bank statement for the U.S. entity, dated April 25, 2006, indicating a
balance of$4,618.00.
The director denied the petition and asserted that the petitioner failed to provide sufficient evidence that the
foreign company has provided the funding or capitalization of the United States company. The director noted
that the petitioner stated that the funds would be provided to the u.s.entity at a future date.
On appeal, counsel for the petitioner asserts that the petitioner provided sufficient evidence to establish the
foreign company's ability to remunerate the beneficiary and to commence doing business. Counsel states
that the petitioner provided financial statements, income taxes, and bank statements for the foreign company,
and receipts for pending work to be done by the foreign entity as proof of' doing business.. In addition, .
counsel explains that the petitioner provided a bank statement for the TJ.S. entity indicating a balance of
$4,618.00 and that the petitioner explained that a wire transfer of $15,000 would occur in May 2006.
Counsel submits a copy of the u.s. entity's bank statement indicating a balance of $22,645.89 as of June 21,
2006. In addition, the petitioner submits a copy of a wire transfer receipt, dated June 21, 2006, originated
from the beneficiary and deposited into the u.s.entity's bank account.
. Upon review, the documentation submitted by the petitioner is ,insufficient to establish that the foreign
company provided funding to the U.S. entity at the time of filing the instant petition, or that the foreign
company has the ability to finance the 11.S. operations. As noted above, the documentation provided by the
SRC 06 081 50850
Page 5
petitioner in order to document the financial ability of the foreign company to remunerate the beneficiary and
commence operations in the United States, was not translated in full into English and thus will not be given
any weight into this proceeding.· In addition, the petitioner submitted documentation to establish a wire
transfer from the beneficiary to the U.S. entity that was dated June 21, 2006, nearly four months after the
instant petition was filed. The petitioner must establish eligibility at the time offiling the nonimmigrant.
visa petition. As noted by the director, 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 of Michelin Tire Corp., 17
I&N Dec. 248 (Reg: Comm. 1978). Based on the insufficiency of the information furnished, it cannot be
concluded that the petitioner has secured a sufficient financial investment from the foreign company.
Furthermore, the petitioner has not submitted a business plan or other documentation to establish the U.S.
company's anticipated start-up expenses and it is therefore not possible to determine what investment
amount would be sufficient. Therefore, even assuming, arguendo, that the balance on the submitted bank
statement was intended to be used as capitalization for the new U.S. company, the AAO could not
. conclude that this amount is adequate for the U.S. company to commence doing business in the United
States. The petitioner has not disclosed the size of the U.S. investment, as required by 8 C.F.R. §
214.2(1)(3)(v)(C)(2). For the foregoing reasons, the appeal will be dismissed.
The second issue to be addressed in this proceeding is whether the petitioner submitted sufficient
evidence to establish that the beneficiary will be employed in an executive or managerial capacity in the
United States within one year.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § llOl(a)(15)(L), provides:
The term "managerial capacity" means an assignment within an organization In which the
employee primarily-
1. manages the organization, or a department, subdivision, function, or component
of the organization;
11. 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;
111. 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.
SRC 06 081 50850
Page 6
Section 101(a)(44)(B) ofthe Act, 8 U.S.c. § 1101(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization In which the
employee primarily-
1. directs the management of the organization or a major component or function of
the organization;
11. establishes the goals and policies of the organization, component, or function;
111. 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.
The record is not persuasive in demonstrating that the beneficiary would be employed in a managerial or
executive capacity as defined at section lOl(a)(44) of the Act. 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-l 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. § 214.2(l)(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 has not submitted sufficient
evidence to establish th~t the intended United States operations, within one year of approval, will support
an executive or managerial position.
The nonimmigrant petition was.filed on January 17, 2006. In a support letter dated January 11, 2006, the
petitioner described the duties to be performed by the beneficiary in the United States as the following:
1. To manage all functions of the Fort Lauderdale office, including sales, purchasing,
Administrative, financial and personnel functions;
2. To exercise complete decision making authority regarding these functions,
including goal setting and performance review and monitoring;
3. Develop and review periodically all departmentalbudgets;
4. To expand and develop company gross revenues by identifying new construction
markets for penetration;
5. To develop a marketing strategy to reach these new markets and assure that they are
accessed;
6. To review bid requests and construction coqtracts;
SRC 06 081 50850
Page 7
7. To establish and supervIse post construction programs to ensure customer
satisfaction.
On January 27, 2006, the director issued a notice requesting additional information of the beneficiary's
proposed employment with the U.S. entity. Specifically, the director requested the petitioner's proposed
staffing level by the end of the first year of operations, including the position titles and proposed duties of
its anticipated employees, and the educational requirements for these positions.
In the response, the petitioner submitted a letter dated April 26, 2006, stating the proposed staffing level of
the U.S. entity within the first year of operations. The letter stated that the beneficiary will be employed as
the president of the U.S. entity, and the petitioner reiterated the job duties previously indicated in the
supporting documentation. The letter also stated that the U.S. entity plans to employ a part-time secretary/file
clerk. The duties of the proposed secretary/file clerk are as follows:
• Keep records of materials filed or removed, using logbooks or computers.
• Add new mateIjal to file records, and create new records as necessary.
• Perform general office duties such as typing, operating office machines, and sorting
mail.
• Track material removed from files in order-to ensure that borrowed files are returned.
• Gather materials to be filed from departments and employees.
• Sort of classify information according to guidelines such as content, purpose, used
criteria, or chronological, alphabetical, or numerical order.
• Findand retrieve information from files in response to requests from authorized users.
• Scan or read incoming materials in order to determine how and where they should be
classified or filed.
• Place materials into storage receptacles, such as file cabinets, boxes, bins, or drawers,
according to classification and identification information.
• Assign and record or stamp i'dentification numbers or cords in order to index materials
for filing.
The petitioner also stated that the U.S. entity plans to hire one or two laborers. The petitioner claimed that the
laborer will be responsible for "timely and safe completion of scaffolding construction/demolition, loading
and unloading material, and transportation of materials." The petitioner also' stated that these positions might
be part-time or full-time depending on the "business needs."
The director denied the petition and stated that the petitioner did not establish that the beneficiary will be
employed in a managerial or executive capacity with the U.S. entity. The director noted that it did not
appear that the beneficiary will supervise a staff of professional, managerial, or supervisory personnel
who will relieve the beneficiary from performing non-qualifying duties, and thus the beneficiary will be
primarily involved in performing the day-to-day services' essential to running a business.
On appeal, the petitioner asserts that the petition should not be denied on this basis since "at no time during
the Request for Additional Evidence did the Service question whether [the beneficiary] was acting or will be
acting in a managerial of executive capacity." In addition, counsel reiterates that the U.S. entity plans to hire
SRC 06 081 50850
Page 8
'one part-time secretary/file clerk and two laborers within one year of operations. Counsel also submits a
letter fro~ the petitioner, dated July 7, 2006, which pr~)Vides a'more detailed description of the duties to be
performed by the beneficiary in the United States, including the percentage of time spent on each duty.
The AAO disagrees with counsel's assertion that the director did not request additional documentation to
determine if the beneficiary will be employed by the U.S. entity primarily in an executive or managerial
position. In the request for evidence, the director requested additional information regarding the proposed
staffing level of the U.S. entity within one year of operations andjob duties fOf all positions, which would
reasonably include the beneficiary's proposed position. Thus the petitioner was put on notice that the
director required information of the organizational complexity of the company which directly affects the
beneficiary's position in the organizational structure, and the duties to be pt:rformed by the beneficiary
,during the first year of operations. See generally 8 C.F.R. § 214.2(l)(3)(v)(requiring the petitioner to
submit evidence of the proposed nature of the new office, the scope of the entity, and its organizational
structure in order to establish that the new office will support an executive or managerial position.)
Nevertheless, the regula~ion at 8 C.F.R. § 103.2(b)(8) clearly states that a petition shall be denied "[i]f
there is evidence of ineligibility in the record." The regulation does not state that the evidence of
ineligibility must be irrefutable. Where evidence of record indicates that a basic element ,of eligibility
has not been met, it is appropriate for the director to deny the petition without a request for evidence. If
the petitioner has rebuttal evidence, the administrative process provides for a motion to reopen, motion to
reconsider, or an appeal as a forum for that new evidence. In the p~esentcase, the evidence indicated that
the petitioner did not submit sufficient evidence to demonstrate that the beneficiary will be, employed by
the U.S. entity in a primarily managerial or executive capacity. Accordingly, the denial was appropriate,
even though the petitioner might have had evidence or argument to rebut the finding.
On"review, the petitioner's assertions are not persuasive. 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(l)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to
be performed and indicate whether such duties are in a managerial or executive capacity. Id.
The definitions of executive and managerial capacity have two parts. 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. Champi~n World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir.July 30, 1991).
The job description submitted is comprised of primarily non-qualifying duties such as the beneficiary will
"manage all functions of the Fort Lauderdale office, 'including sales, purchasing, Administrative, financial
and personnel functions"; "develop and review periodically all departmental budgets"; "expand and develop
company gross r~venues by identifYing new construction markets for penetration;" "develop a marketing
strategy to reach these new markets and assure that they are accessed;" "review bid requests and construction
contracts;" and, "establish and supervise post construction programs to ensure customer satisfaction." It
appears that the beneficiary will be directly providing the sales, marketing, purchasing, administrative,
and financial services of the business rather then directing such activities through subordinate employees.
:' .
SRC06 081 50850
Page 9
. An employee who "primarily" performs the tasks necessary to produce a product or provide a service is
not considered to be "primarily" employed in a managerial or executive capacity. See sections
101(a)(44)(A) and (B) ofthe Act (requiring that one "primarily" perform the enumerated managerial or
executive duties); see also Matter of Church Scil:mtologyInternational, 19 1& N Dec. 593, 604 (Comm.
1988).
On appeal, the petitioner submitted a different job description for the proposed duties of the beneficiary in
the United States that bears little resemblance to the previously submitted job description. On appeal, 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 the associated job responsibilities. The petitioner must
establish that the position offered to the beneficiary when the petition was filed merits classification as a
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm.
. 1978). A petitioner may not make material changes to a petition in an effort to make a deficient petition
conform to CIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998).
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather
the AAO must determine based on the totality of the record whether the description of the beneficiary's
duties represents a credible account of the beneficiary1srole within the organizational hierarchy. As noted
by the petitioner in response to the request for evidence, the petitioner plans to hire one part-time
secretary/file clerk and two laborers. Thus, it appears that the only individual in charge of running the
business and managing the sales, marketing, market research, negotiations, payroll, customer service,
client development and finance.operations will be the beneficiary himself. In addition, it appears that he
will be engaged in the. first-line supervision of the laborers hir~d by the company. Based on the job .
descriptions forthe proposed positions, it appears that the proposed employees will assist with the clerical
and manual tasks for the business, however, the beneficiary, is the only employee who wil.! perform the
majority of the operational tasks required in running the business. Accordingly, the director reasonably
concluded that the beneficiary as the petitioner's only full-time managerial employee will be performing
the day-to~day operations and directly be providing the services of the business rather than directing such
activities through subordinate employees. Again, an, employee who "primarily" performs the tasks
necessary to produce a product or provide services is not considered to be "primarily" employed in a
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church
.Scientology International 19 I & N Dec. at 604..
Although'the beneficiary, is not required to supervise personnel, if it is claimed that his manageriald~ties
will involve supervising employees, the petitioner must establish that the subordinate employees are
.supervisory, professional, or managerial. See § 101(a)(44)(A)(ii) ofthe Act.
In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field of
endeavor. Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in
elementary or secondary schools, ,colleges, academies, or seminaries." The term "profession"
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by a
SRC 06 081 50850
Page 10
prolpnged course of specialized instruction and study of at least baccalaureate level, which is a realistic
prer~quisite to entry into the particular field of endeavor. Matter ofSea, 19 I&N Dec. 817 (Comm. 1988);
Matter ofLing, 13 I&N Dec. 35 (R.C. 1968); Matter ofShin, 11 I&N Dec. 686 (D.O. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree
held by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term
is defined above. ,In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually ,necessary, for example, to perform the clerical and manual labor functions of the proposed
employees of the U.S. entity, who will be the beneficiary's subordinates., Thus, the petitioner has not
shown that the beneficiary's subordinate employees are supervisory, professional, or managerial, as
required by section 101(a)(44)(A)(ii) of the Act.
Furthermore, on appeal, counsel asserts that the position offered to the beneficiary is in an executive
capacity. The statutory definition of the term "executive capacity" focuses on a person's elevated position
within a complex organizational hierarchy, including major components or functions of the organization,
and that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8U.S.C. §
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and. - .'
"establish the goals and policies" of that organization. Inherent to the definition, the organization must
have a subordinate level of manage~ial employees fqr the beneficiary to direct and the beneficiary must
primarily focus on the broad goals and policies of the organization rather than the day-to-operations of the
enterprise. ,An individual will not be deemed an executive under the' statute simply because they have an '
executive title or because they "direct" the enterprise as the owner or sole managerial employee. The
beneficiary must also exercise "wide latitude in discretionary decision making" and receive only "general
supervision or direction from higher level executives, the board of directors, or stockholders of the
organization." Id. A managerial or executive employee must have authority over day-to-day operations
beyond the level normally vested in a first-line supervisor, unless the supervised employees are­
professionals. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). As
the beneficiary will supervise one part-time secretary and two laborers, the U.S. company has not
established a complex organizational structure which would elevate the beneficiary beyond a first-line
supervisor. Thus, the petitioner has not established that the position is in an executive capacity.
On appeal,' counsel cites Mars Jewelers, Inc. v. INS, 702 F. Supp 1570 (N.D. Ga. 1988), to stand for the
proposition that the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will
act in a primarily managerial or executive capacity. Counsel has furnished no evidence to establish that. , ,
the facts of the instant petition are analogous to those in Mars Jewelers, Inc. v. INS. It is noted that the
case cite~ by counsel relates to immigrant visa petitions, and not the extension of a "new office"
nonimmigrant visa.. As the new office extension regulations call for a review of the petitioner's business
activities and staffing after one year, the case cited by counsel is distinguishable based on the applicable
regulations. See 8 C.F.R. § 214.2(l)(l4)(ii).
Furthermore, as contemplated by the regulations, a comprehensive business plan should contain, at a
minimum, a description of the business, its products and/or services, and its objectives. See Matter ofRo,
22 I&N Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory
SRC06 081 50850
Page 11
requirements for the alien entrepreneur immigrant visa classification, Matter ofHo is instructive as to the
contents of an acceptable business plan:
The plan should contair a market analysis, including the names o( competing businesses
and their relative strengths and weaknesses, a comparison of the competition's products
and pricing structures, and a description of the target market/prospective customers of the
new commercial enterprise. The plan should list the required permits and licenses
obtained. If applicable, it should describe the manufacturing or production process, the
materials required, and the supply sources. The plan should detail any contracts executed
for the supply of materials and/or .the distribution of products. It should discuss. the
marketing strategy of the business, including pricing, advertising, and servicing. The plan
should set forth the business's organizational structure and its personnel's experience. It
should explain the business's staffing requirements and contain a timetable for hiring, as
well as' job descriptions for all positions. It should contain sales, cost, and income
projections and detail the bases therefore. Most importantly, the business plan must be
credible.
Id.
The petiti<?nerfailed to submit any business plan for the U.S. entity. Asnoted above, the petitioner only
submitted the proposed staffing levels for the U.S. entity. The petitioner did not submit a business plan
that outlines how the U.S. entity will achieve the listed objectives, and plans and if it is financially
feasible to do so. ·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.
Thus, the petitioner has not submitted sufficient evidence to demonstrate that the intended U.S. operation,
within one year of the approval of the petition, will support an executive or managerial position.
Specific~lly, the petitioner has not adequately defined the proposed nature of the office, and had not
realistically described the scope of the entity, its organizational structure and its financial goals. See 8. . .
C.F.R. § 2l4.2(1)(3)(v)(C)(1). For this additional reason, the appeal will be dismissed.
While not directly addressed by the director, the minimal documentation of the foreign entity's business
.operations raises the issue of whether the petitioner is a qualifying organization doing business abroad.
The majority of the invoices and receipts, payroll statem'ents and financial statements for the foreign
company were not translated into English. Instead, the beneficiary provided a brief description of the
documents. Because the petitioner failed to submit certified translations of the documents, the AAO
cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. § 103.2(b)(3).
Accordingly" the evidence is not probative and will not be accorded any weight in this proceeding. For
thisad,ditiona\ reason, the petition will be denied.
An application or petition that fails to comply with the technical requirements of the law may be denied
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial
decision. See Spencer Enterprises, Inc.v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001),
SRC 06 081 50850
Page 12
aff'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 ona de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
. alternative basis for the decision. In visa petition proceedings, the burden of proving eligibility for the
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U~S.c. § 1361. Here, that
burden has not been met. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.