dismissed L-1A Case: Medical Transportation

US. Department of Homelrnd Security 
U.S. Citizenship and Immigration Services 
Oflce of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
7 - 
preveri: cleerty unwarranted 
 U. S. Citizenship 
invasioil of personal privacy 
 and Immigraton 
Services 
PUBLIC COPY 
File: EAC 07 1 16 52478 0ffice:VERMONT SERVICE CENTER Date: 
 3UN 1 6 2009 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 b .S.C. tj I 10 1(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motior, ri.' rl.:rc; 1s; icr or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for the 
 , 
specific requirements. All moi-irlr;~, ri- ~:t " - 
 ~mitted to the office that originally decided your case by filing a 
Form I-BOB, P.iorlL:- c.'k r~eai I 
 J 
 i I a fee of $585. Any motion must be filed within 30 days of the 
decision ttiat the mori0.i seeks ti, rtcc,:ria uel-. d! teq~lired by 8 C.F.R. $ 103.5(a)(lXi). 
F. Grissom 
Acting Chief, Adn-ninistrative Appeals Cficc 
EAC 07 1 16 52478 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant petition and 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 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a California corporation established in March 2007, intends to 
provide non-emergency medical transportation services. It claims to be a subsidiary of S Teodoro Trucking, 
located in the Philippines. The petitioner seeks to employ the beneficiary a:; president of its new office in the 
United States for a period of two years. 
1 
The director denied the petition on two independent grounds. Specifically, the director determined that the 
petitioner had failed to establish: (1) that the U.S. company has secured sufficient physical premises to house 
the new office; and (2) that .the beneficiary would be acting in a primarily managerial or executive capacity 
and that the U.S. company would support the beneficiary in such capacity within one year. The director 
further observed that the petitioner did not submit evidence to establish the size of the United States 
investment and the financial ,ability of the foreign entity to remunerate the beneficiary. 
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 
fully complied with the director's request for additional evidence regarding the new business and submitted 
sufficient evidence to establish the petitioner's and beneficiary's eligibility. Counsel submits a brief and 
additional evidence in suppor-t 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 01. 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. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and [he organization which employed or will employ the 
alien are qualifying orga~~izations 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. 
1 
 Pursuant to the regulation at 8 C.F.R. tj 2 14.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
EAC 07 1 16 52478 
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 himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States a.s 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 (I)(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 addressed by the director is whether the petitioner had secured sufficient physical premises to 
house the new ofice as of the date the petition was filed. 
The petitioner filed the nonimrnigrant petition on March 14,200'7. The petitioner indicated on Form 1-1 29 that the 
beneficiaryts worksite will be located in Huntington Beach, California. This address was also 
identified on Form 1-129 as the beneficiary's current residential address in the United States. 
The director issued a request for additional evidence (WE) on May 2 1, 2007, in which he requested, inter alia, 
evidence to establish that the petitioner has secured sufficient physical premises to house the new ofice. The 
director also requested photographs of the interior and exterior of all physical premises secured. 
EAC 07 1 16 52478 
Page 4 
In response to the director's request, the petitioner submitted a copy of a month-to-month lease for the premises 
located at 
 Huntingdon Beach, California. The lease agreement is between 
 as 
landlord and the beneficiary as tenant. The lease contains the following "Use of Premises" provision: 
The Premises shall be used and occupied by Tenant and Tenant's immediate family . . . 
exclusively, as a private, single family dwelling, and no part of the Premises shall be used at any 
time during the term of the Agreement by Tenant for the purpose of carrying on any business, 
profession, or trade of any kind, or for any purpose other than as a private single family dwelling. 
The petitioner provided photographs of the exterior of a single family home, and a photograph of a passenger van 
with a makeshift sign bearing the U.S. company's name, address and telephone number. The petitioner also 
submitted one interior photograph depicting a desk, computer and fax machine in a small oflice. The petitioner 
indicated that the photographs show its "home base business" being run at the residence described above. 
According to the petitioner's business plan, also submitted in response to the RFE, the company foresees renting a 
larger ofice "in the next two years." 
The AAO notes that the record also contains a service agreement between the petitioner and a business known as 
Alternative Senior Care, which has contracted the petitioner to provide transportation services to its senior 
clientele residing at its eleven residential assisted living facilities located in and around Huntington Beach, 
California. According to the contract, one of rhe facilities is located at 
 in Huntington Beach. 
The director denied the petition on April 12, 2008, concluding that the petitioner failed to establish that it had 
secured physical premises to house the new office. The director ackaowledged the evidence submitted, but 
emphasized that the dwelling was leased to the beneficiary and his family, rather than to the U.S. company, and 
commercial use of the premise!; is expressly prohibited in the lease. 
On appeal, counsel asserts that "although the business is located at a home, this fact does not retract from the fact 
that it is in fact an operating business." Counsel contends that the regulations do not require that the business 
premises be of a certain size or in an ofice building, and notes that many businesses start as home businesses and 
grow over time. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that it has secured 
sufficient physical premises to house the new office as required by 8 C.F.R. tj 2 14.2(1)(3)(v)(A). 
The AAO acknowledges that the regulations do not specify the type of premises that must be secured by a 
petitioner seeking to establisll a new office, and observes that there may be cases in which a home office 
would satisfy the regulatory requirements. However, the petitioner bears thie burden of establishing that its 
physical premises should be considered "suff.?cient" as required by the regulations. To do so, it must clearly 
identify the nature of its business, the speclfic amount and type of space req,uired to operate the business, its 
proposed staffing levels, and evidence that the space can accommodate the petitioner's growth during the first 
year of operations. USCIS may also consider evidence that the company has obtained a license to operate the 
business from a home office, if required, evidence that the company has esrablished separate phone lines or 
made other accornrnodations for the use of the premises by the U.S. company, or any other evidence that 
would establish that a residential dwelling will rneet the company's needs. Finally, photographs and floor 
EAC 07 1 16 52478 
Page 5 
plans of the leased premises may assist in determining that the premises secured are sufficient to 
accommodate the petitioner's business operations. 
Here, the petitioner has not offered any additional evidence on appeal to show that the specific premises 
secured is sufficient to accommodate the petitioner's business, nor has counsel addressed the specific 
deficiencies outlined in the director's decision. As noted by the director, the lease agreement was entered by 
the beneficiary in his personal capacity, for a dwelling to be used by his family, and the lease expressly 
prohibits the operation of a business from the location. The petitioner has not provided evidence that the 
landlord has granted the petitioner authorization to operate the business from the premises or that the 
petitioner has obtained any applicable licenses required to operate a commercial transport business from a 
private home. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&.N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, the evidence in the record suggests that the premises identified in the lease are already being 
used as a residential assisted living facility. It is reasonable to question whether the petitioner's landlord, who 
is also identified as an administrator for Alternative Senior Care, would lease an entire facility to a family to 
be used as a residence when there are presumably clients/patients residing there. These facts raise questions 
regarding the validity of the lease agreement. Doubt cast an any aspect (of the petitioner's proof may, of 
course, lead to a reevalr~ation of the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Matter of Ho, 19 I&N Eec. 582, 591 (BIA 1988). 
Finally, while the petitioner has submitted photographs that are claimed to depict the petitioner's business, the 
photographs do not clearly identi@ the address of the house, and the interior photographs could just as easily 
depict an ofice used by the other business that appears to be occupying the premises. Furthermore, while the 
petitioner submitted a photograph of a van with a sign depicting its company name in response to the RFE on 
August 1, 2007, the evidence submitted on appeal includes a Certificate 01;' Title for the company's vehicle 
which was issued on October 18, 2007. Again, 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. at 591. 
The petitioner has not submitted evidence on appeal to overcome the director's determination on this issue. 
Accordingly, the appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner established that the United States 
operation, within one year of'the approval of the petition, will support an executive or managerial position, 
and whether the beneficiary will be employed in a primarily managerial or executive capacity. 
Section 10 1 (a)(44j(A) of the Act, 8 U.S.C. $ 1 101 ja)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the ernployee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
EAC 07 1 16 52478 
Page 6 
(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 10 1(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the mai~agement of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goais and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretio~~ary 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 March 11, 2007, counsel for the petitioner described the beneficiary's proposed position as 
follows: 
[The beneficiary] will fill the position of PresidentICEO for the U.S. entity. In this executive 
capacity he will be in control of the overall operations of the business and arrange for the 
strategy and conduct of the business. 
[The beneficiary] will be responsible to hire and train managers and workers in the business. He 
wiil coordinate and direct the activities of the workers/supervisors. He will be in control of the 
strategy of the busines!; and in the operational efficiency and effectiveness of the initial office 
and with the other planned. 
[The beneficiary] will accordingly be the executive setting up the operations of the business and 
be in overall charge of the staff to ensure that his directions and instructions are properly carried 
out. 
EAC 07 1 16 52478 
Page 7 
As noted above, the regulations governing new office petitions at 8 C.F.R. 214.2(1)(3)(v)(C) require the petitioner 
to submit information regarding: (1) the proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; and (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. 
In support of the petition, the petitioner submitted automated teller machine (ATM) receipts showing the balance 
in the beneficiary's U.S. savings account, and banks statements showing funds (in pesos) in the beneficiary's 
Philippines bank account as of November 2006. The petitioner also submitted a copy of the foreign entity's 
income tax return and audited financial statements far the year ended December 3 1,2005. The petitioner did not 
address the nature of the proposed U.S. office or describe the anticipated scope of the entity, its organizational 
structure or its financial goals. 
In the RFE issued on May 21, 2007, the director requested additional informiition regarding the beneficiary's 
proposed duties and the proposed staffing of the U.S. office, and instructed the petitioner to identify the number 
of employees to be hired, their job titles, the duties to be performed by each employee, and their anticipated 
salaries/wages. The director also requested a business plan providing specific dates for each proposed action, for 
the first year of operation, as well as evidence to show how the new company will grow to be of sufficient size to 
support a managerial or executive position. 
The director hrther instructed the petitioner to submit evidence to establish the size of the United States 
investment and the financial ability of the foreign entity to commence doing business in the United States, 
including: evidence of funds transferred from the foreign entity to fund the U.S. company; evidence of the 
financial status of the U.S. company; and an original bank letter confirming the petitioner's account balance as of 
March 14,2007. 
In response, the petitioner submitted an I l-page "Company htroduction," which includes the following 
description of the beneficiary's cluties: 
Overseeing the entire operation, which includes responsibility for making policy, financial 
decisions, advertising, marketing and sa.les for the business. 
Hiring, screening, and training all prospective employees, dealing with the company 
accountant on a monthly basis for taxes and overall financial reporting. The projection of 
cash flows and iniplementation of business plans in a grc~wing business. 
The company introduction indicates that the company will operate a "non-emergency transport business such as 
transporting clients to hospital follow-ups, to and from doctor's clinics, rehab, dental, lab and radiology 
appointments and recreational fitoilities." According to the business plan, the petitioner plans to procure "modem 
and more capacity transportation vehicles," and projects that it will own five vehicles and employ ten workers 
within five years. 
The business plan includes an organizational chart depicting the anticipated office structure for the first year in 
operation. The chart identifies the beneficiary as the presidentICE0 and shows that he will supervise drivers and 
caregivers. The record also includes a projected organizational chart which depicts maintenance personnel, a 
EAC 07 1 16 52478 
Page 8 
manager, a vice president, a secretary and a treasurer, in addition to the positions of president, driver and 
caregiver. 
Finally, the business plan includes projected profit and loss statements for the years 2008 through 2012. The 
petitioner anticipates that it will achieve gross sales of $98,000 in 2008 and pay salaries and wages of $50,400. 
The beneficiary's proffered annual salary is $45,000. 
As evidence to establish the size of the United States investment, the petitioner submitted evidence that it opened 
a business checking account with a balance of $20,000 on August 1, 2007. The petitioner also provided letters 
from two Philippine banks providing the balance of the beneficiary's savings account and the balance of a joint 
cooperative account held by the beneficiary and his wife. In response to the director's request for copies of wire 
transfers executed to transfer funds fiom the foreign entity to the U.S. entity, the petitioner submitted additional 
ATM receipts showing the balance available in his United States savings accounts. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be 
employed in a primarily managerial or executive capacity or that the U.S. company, within one year of the 
approval of the petition, will support an executive or managerial position. In denying the petition, the director 
determined that the petitioner's response to the RFE did not clearly define the beneficiary's responsibilities or 
indicate exactly what duties he would be perfomling as president of the U S. company. The director also 
found insufficient evidence to establish the size of the investment in the United States company, noting that 
the petitioner did not open a bank account until several months after the petition was filed, and that the 
petitioner had failed to submit any evidence of funds transferred from the foreign entity. Overall, the director 
determined that the evidence did not establish how the cornpariy would grow to be of sufficient size to support 
a managerial or executive capacity position within one year. 
On appeal, counsel for the petitioner reiterates the position description that .was included in the petitioner's 
business plan and objects to the director's finding that such description is "self-serving," noting that the 
beneficiary, as the owner of the new company, is the only person available to provide the information. 
Counsel asserts that the petitioner now employs a driver and plans to acquire additional vehicles and employ 
additional workers over the next five years. The petitioner submits copies of ir~voices for services rendered by 
the petitioner in March and Aprir 2008 and cvidence of wages paid to the driver during the month of 
December 2007. 
Counsel further emphasizes that the petitioner has opened a business checking account with a balance of 
$20,000, and asserts that the money held by the beneficiary and his wife in the Philippines is available for 
funding the new business, as the beneficiary is the owner of both the foreign and U.S. entities. 
Upon review, counsel assertions are not persuasive. The petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity or that the petiti.oning company will support a 
managerial or executive positior~ within one year. 
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 executi,ve or managerial level and that often the full range of 
EAC 07 1 16 52478 
Page 9 
managerial responsibility canriot be performed. In order to qualify for L-1 nclnimmigrant 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 cf the approval of the petition. See 8 (S.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 must also establish that 
the beneficiary will have managerial or executive authority over the new operation. See 8 C.F.R. 4 
2 14.2(1)(3)(v)(B). 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andlor services, and its objectives. See Matter of No, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent re:ates 1.0 the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as 1:o the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the cornpetition's products and 
pricing structures, and a description of tile target marketlprospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe lhe manufacturing or production process, the materials required, 
and the supply sourc:es. The plan should detail any contracts executed for the supply of 
materials andlor the distribution of products. It should di!jcus~ 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. 
Here, the petitioner has not established that the beneficiary will be perfi3rming primarily managerial or 
executive job duties within one year, nor has it adequately documenteci the size of the United States 
investment or the financial ability to commence doing business in the United States. 
When examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitionerqs description of the proposed 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 that will be performed by the beneficiary and 
indicate whether such duties will be either in an executive or managerial capacity. Id. 
Counsel's initial description of the beneficiary's duties was general and non-specific, providing little insight 
into what specific tasks the beneficia~y will perform beyond generalities. For example, counsel stated that the 
beneficiary will "be in control of the overall operations of the business," "anange for the strategy and conduct 
of the business," "be in control of the strategy of the business," and be in conl.rol of the "operational efficiency 
EAC 07 116 52478 
Page 10 
and effectiveness of the office." Specifics are clea.rly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature, othenvise meeting the de6ni:iions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 
4 1 (2d. Cir. 1990). 
In response to the director's request for a more detailed description of the beneficiary's proposed duties, the 
petitioner stated that the beneficiary will be charge of "overseeing the entire operation," including 
responsibility for making policy and financial decisions, as well as "advertising, marketing and sales." The 
only other duties mentioned are hiring employees, monthly dealings with an accountant, and "implementation 
of business plans." Again, this brief statement is insufficient to establish that the beneficiary's actual duties 
will be pritnarily managerial or executive in nature within one year. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 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. 
The definitions of executive and managerial capacity each 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. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). While the A.40 does not doubt that the beneficiary will 
exercise the appropriate level of authority over the business as its president and owner, the petitioner must 
establish that his duties will be primarily managt:rial or executive in nature within one year of commencing 
the new business in the United States. 
In the case of a new office, the AAO will view the beneficiary's proposed duties in view of the petitioner's 
proposed organizational structure, the nature of the business, business plans, financial projections, and other 
factors to determine whether the petitioner will reasonably support a managerial position within one year. The 
petitioner must establish that the beneficiary will be relieved from having to primarily perform the daily 
operational tasks of the businass. 
Here, the petitioner's pojected staffing and profit and loss statements for the first year in operations do not 
demonstrate that the beneficiary would be relieved frorn primarily performing non-managerial duties. During 
the first year, the petitioner indicates that it will hire one or more drivers to transport clients to their 
destinations and one or more caregivers to assist the elderly clients. These non-professional employees will 
report directly to the beneficiary. During 2008, which would be the Arst full year in operation, the petitioner 
anticipates that it will pay $50,400 in wages. Given that the beneficiary's proffered annual salary is $45,000, it 
appears that any drivers or caregivers hired will work on a part-time basis. ;Moreover, the petitioner does not 
intend to hire any staff to handle essential functions such as sales and marketing, bookkeeping, clerical or 
administrative tasks, which would necessarily be performed by the beneficiary as the sole full-time employee. 
Collectively, this brings into question how mwh of the beneficiary's time could actually be devoted to 
managerial or executive duties after the first year in operations. As stated in the statute, the beneficiary must 
be primarily performing duties that dre managerial or executive. See sections 101(a)(44)(A) and (B) of the 
EAC 07 1 16 52478 
Page 1 1 
Act. Based on the evidence submitted, it is evident that the beneticiary will perform every operational 
function of the company apart from driving a transport vehicle. 
The AAO does not dispute that small companies require leaders or individuals who plan, formulate, direct, 
manage, oversee and coordinate activities: however the petitioner must establish with specificity that the 
beneficiary's duties will comprise primarily managerial or executive responsibilities and not routine 
operational or administrative tasks. The fact that the beneficiary manages a business, regardless of its size, 
does not necessarily establish eligibility for classification as an intracompany transferee in a managerial or 
executive capacity within the meaning of section 10l(a)(l5)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 
26, 1987). Here, the record fails to establish that the majority of the beneficiary's duties within one year will 
be primarily directing the management of the orgar izatiorl or a component or junction of the organization. 
In addition, as noted by the director, the petitioner has not met the evidentiary requirement at 8 C.F.R. 5 
214.2(1)(3)(v)(C), which requires the petitioner to submit evidence to establish the size of the financial 
investment in the United States company. At the time the petition was filed, and for five months thereafter, 
the petitioner had no bank account and no fuading. The fact that the beneficiary had several thousand dollars 
in a personal savings account is irrelevant. He had been residing in the United States as a visitor for pleasure 
for an entire year at the time the petition was filed and presumably required savings or other funds to support 
himself during this stay. Furthermore, the petitioner's business plan does not identify the company's 
anticipated start-up costs or capital requirements. Although the petitioner indicates that it intends to purchase 
up to five transport vehicles, its projected financial statements make no allowances for such expenses. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in thesz proceedings. Matter of Soflci, 22 I&Pd Dec. at 165. 
While the petitioner everltually opencd a business checking account with a deposit of $20,000, the AAO notes 
that the petitioner must establnsh eligibility at the time of filing the noninlmigrant 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. Mutter of Michelin Tire Corp., 17 I&hr Dec. 248 (Reg. Comm. 1978). Regardless, since the 
petitioner did not provide documentation of its projected start-up costs, it is impossible to conclude that 
$20,000 would be sufficient to meet the company's needs. The PiAO acsknowledges evidence that the 
beneficiary imd his spouse have swings accounts in the Phili~~pines, but the petitioner did not provide 
conversion r,ltes for the foreigi~ cu~lrncj~ or explain what portion of the funds would potentially be available 
as an investment in the U.S. company. The lack of evidence of the investment made in the U.S. company 
further undermines any realistic ex.pectation that the enterprise will succeed and rapidly expand as it moves 
away from the developn~ental stage to full operations, where there would be an actual need for a manager or 
executive who will primarily perform qualifying, duties. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity within one year. For this additional reason, the appeal will be 
dismissed. 
Beyond the decision of the dirl~ctor, the petitior~er has not estriolished dzat 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, as required by 13 C.F R. 5 2 14,2(1)(3)(v)(B). 
EAC 07 1 16 52478 
Page 12 
The petitioner indicates that the beneficiary owned and managed a sole proprietorship known as "S Teodoro 
Trucking" in Bulacan, Philippines since January 1, 1999. The petitioner submitted a "Certificate of Business 
Name Registration" issued to the beneficiary by the Philippines Department of Trade and Industry (DTI) on 
February 23, 2005, along with a copy of the application for sole proprietorship submitted to DTI. The 
beneficiary indicated that it was a "new" application as opposed to a renewal. He also indicated on the 
application that the business had one employee. There is no evidence to corroborate the existence of an entity 
known as "S Teodoro Trucking," prior to February 23,2005. 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 190, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The beneficiary came to the United States in B-2 status on March 15, 2006, less than 13 months after 
establishing the sole proprietorship in the Philippines. While the petitioner intlicztes that the foreign business 
currently employs eight workers, there is no evidence of the staffing levels that existed between February 
2005 and March 2006, which is the relevant period for determining whether tlhe beneficiary was employed in 
a primarily managerial or executive capacity.2 The petitioner has not provided a description of the 
beneficiary's duties while employed with the foreign entity beyond indicating that he sewed as president of 
the company. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
at 1108. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. hlatteir ofSofici, 22 I&N Dec. at 165. 
Therefore, the petitioner has rlot established that the beneficiary was employed by the foreign entity in a 
primarily managerial or executive capacity for one year within the three years preceding the filing of the 
petition. Accordingly, the petition will be denied for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identi& all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United Stutes, 229 F. Supp. 2d 1025, 1043 (E .D. Cai. 200 1 ), am. 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
Dept. of Trunsp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's cle fiovo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, $91 F.2d 997, 1002, n. $1 (2d Cir. 1989). 
The petition will be denied ancl the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO drnies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge or~ly if he or she shows that the AAO abused its discretion 
Pursuant to 8 C.F.R. $ 214.2(1)(1 )($(A); ptriods spent in the United States in lawful status for a branch of 
the same employer or a parent, affiliate, or ,subsidiary thereof and brief trips to the United States for business 
or pleasure shall not be intzrruptive of the one year of continuous employmen,t abroad, but such periods shall 
not be counted toward Fulfillment of that requirement. 
EAC 07 1 16 52478 
Page 13 
with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. Unifed States, 229 F. 
Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.