dismissed L-1A Case: Peace Advocacy

MATTER OF F-0-A-0-W-A-W-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 17, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a non-profit organization engaging in working toward permanent peace in Sri Lanka, 
seeks to extend the Beneficiary's temporary employment as its chief executive officer under the L-1 A 
nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the 
Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). TheL-IA classification allows a corporation 
or other legal entity (including its affiliate or subsidiary) to transfer a qualifYing foreign employee to the 
United States to work temporarily in an executive or managerial capacity. 
The Director, Vermont Service Center, denied the petition on three alternate grounds, concluding 
that the Petitioner did not establish that (1) a qualifying relationship exists between the U.S. 
company and the foreign entity; (2) the U.S. company is actively engaged in business activity; and 
(3) the Beneficiary will be employed in a primarily managerial or executive capacity under the 
extended petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and asserts that 
the U.S. company is listed as a branch of the foreign entity and therefore they have a qualifying 
relationship. The Petitioner also states that it is difficult to establish that the Beneficiary is 
performing managerial duties when the company is still in the early stages of formation and is still in 
the process of soliciting employees for hire. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge 
capacity. Id. 
Matter of F-0-A -0- W-A- W-, Inc. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form l-129, 
Petition for a Nonimmigrant Worker, 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 performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the 
opening of a new office, may be extended by filing a new Form I-129, accompanied by the 
following: 
(A) Evidence that the United States and foreign entitles are still qualifying 
organizations as defined in paragraph (1)(1 )(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (1)(1 )(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence 
of wages paid to employees when the beneficiary will be employed in a 
management or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
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Matter ofF-0-A-0-W-A-W-, Inc. 
II. QUALIFYING RELATIONSHIP 
The Director denied the petition, in part, based on a finding that the Petitioner did not establish that 
the Beneficiary's foreign employer and the U.S. company are qualifying organizations. To establish 
a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. one 
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally 
section 101(a)(15)(L) ofthe Act; 8 C.F.R. § 214.2(1). 
A. Discussion 
On the L Supplement to Form 1-129, where asked to describe the percentage of stock ownership and 
managerial control of each company that has a qualifying relationship, the Petitioner stated that the 
U.S. company "is a branch of'' the foreign entity. 
The Petitioner submitted a Certificate of Registration and Articles of Association of the foreign 
entity identifying it as a non-profit, non-governmental organization in Sri Lanka, along with 
financial audits from 2014 and 2015. 
The Petitioner submitted an Application for Authority of the foreign entity to pursue its non-profit 
activities in the state ofNew York, dated February 28,2014. 
In response to the RFE, the Petitioner stated that the Beneficiary "is employed by the branch 
organization in the United States[; and] because an overseas non-government organization cannot 
solicit funds in the United States, it was necessary to incorporate [the Petitioner]. These are one and 
the same organization as indicated in our letter of November 7, 2014." 1 
The Petitioner then submitted a Certificate of Incorporation for the U.S. company, dated 
March 31, 2014, as a non-profit organization. The Petitioner also submitted a copy of its Internal 
Revenue Service letter identifying it as a tax-exempt organization pursuant to section 501(c)(3) of 
the Internal Revenue Code. 
In denying the petition, the Director found that the record does not contain any evidence to establish 
that the U.S. company has a qualifying relationship with the foreign entity as a branch. The Director 
noted that the U.S. company incorporation documents do not reference the foreign entity and the 
foreign entity's corporation documents do not reference the U.S. company. 
On appeal, the Petitioner contends that the U.S. company was initially incorporated under the name 
of the foreign entity, but the term "Friends of'' had to be added to the corporate name because a 
1 We note that the Petitioner did not provide a copy of the November 7, 2014 letter referenced in the response to the 
RFE. 
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(b)(6)
Matter of F-0-A-0-W-A-W-, Inc. 
foreign entity cannot be incorporated in the United States for the purposes of soliciting funds. The 
Petitioner then refers to the definition of "organization" found in section 101(a)(28) of the Act, 
which states: 
The term "organization" means, but is not limited to, an organization, corporation, 
company, partnership, association, trust, foundation or fund; and includes a group 
of persons, whether or not incorporated, permanently or temporarily associated 
together with joint action on any subject or subjects. 
The Petitioner goes on to state the following about its qualifying relationship with the foreign entity: 
It is our contention that [the foreign entity] and [the Petitioner] constitute a 
qualifying association within the meaning of the law. The ownership and control of 
both entities must be the same for a finding of a same employer , parent/subsidiary, 
or affiliate relationship as required by the statute. 
The ownership and control of both entities are the same. The purpose of these 
organizations are the same. Three members of the board of directors of [the foreign 
entity], are on the Board of [the Petitioner]. The founder and Chairperson of [the 
foreign entity], is also founder and chairperson of [the 
Petitioner]. 
The interpretation of qualifying companies is very broad and there have been 
inconsistencies in [USCIS'] interpretation of 8 U.S.C. § 110l(a)(15)(L), which 
should be interpreted in the very broad sense to include all forms of organizations .. 
Further, the Petitioner contends that it submitted an audited financial statement from the foreign 
entity listing the U.S. company as a branch and that firms that have related or financial interests may 
be treated as though they are affiliated. 
Here, the Petitioner has not presented evidence to demonstrate that it is a branch office of the foreign 
entity, but rather, that it is a separate legal entity incorporated in the United States. Regardless of its 
status as a non-profit entity, if the petitioner submits evidence to show that it is incorporated in the 
United States, then that entity will not qualify as "an ... office of the same organization housed in a 
different location," since that corporation is a distinct legal entity separate and apart from the foreign 
organization. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite 
Investments Limited, 17 I&N Dec. 530 (Comm 'r 1980); and Matter ofTessel, 17 I&N Dec. 631 (Act. 
Assoc. Comm 'r 1980). If the claimed branch is incorporated in the United States, USCIS must 
examine the ownership and control of that corporation to determine whether it qualifies as a 
subsidiary or affiliate of the foreign employer. In the instant matter, the Petitioner has not submitted 
any evidence of ownership of the U.S. company and simply states that it is the same as the foreign 
entity or that it is a branch of the foreign entity in the United States. 
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Matter of F-0-A -0- W-A-W-, Inc. 
In defining the nonimmigrant classification, the regulations specifically provide for the temporary 
admission of an intracompany transferee "to the United States to be employed by a parent, branch, 
affiliate, or subsidiary of [the foreign firm, corporation, or other legal entity]." 8 C.F.R. § 
214.2(1)(1 )(i) (emphasis added). The regulations define the term "branch" as "an operating division 
or office of the same organization housed in a different location." 8 C.F.R. § 214.2(l)(l)(ii)(J). 
USCIS has recognized that the branch office of a foreign corporation may file a nonimmigrant 
petition for an intracompany transferee. See; Matter of Leblanc, 13 I&N Dec. 816 (Reg. Comm'r 
1971 ); Matter of Schick, 13 I&N Dec. 64 7 (Reg. Comm 'r 1970); see also Matter of Penner, 18 I&N 
Dec. 49, 54 (Comm'r 1982) (stating that a Canadian corporation may not petition for L-1 B 
employees who are directly employed by the Canadian office rather than a United States ot1ice). To 
the extent a petitioner seeks to establish that it is a branch office in the United States, it must 
demonstrate that it is bound to the foreign entity through common ownership and management. A 
branch that is authorized to do business under United States law becomes, in effect, part of the 
national industry. Matter of Schick, supra at 649-50. 
Probative evidence of a branch office would include the following: a state business license 
establishing that the foreign corporation is authorized to engage in business activities in the United 
States; copies of Internal Revenue Service (IRS) Forms 1120-F, U.S. Income Tax Return of a 
Foreign Corporation; copies IRS Forms 941, Employer's Quarterly Federal Tax Returns, listing the 
branch office as the employer; copies of a lease for office space in the United States; and/or any state 
tax forms or other relevant evidence demonstrating that the petitioner is a branch office of a foreign 
entity. Here, the Petitioner has not provided that evidence. 
Based on the evidence in the record, the Petitioner has not established that the Beneficiary's foreign 
employer and the U.S. company are qualifying organizations. 
III. U.S. COMPANY DOING BUSINESS 
The Director denied the petition, in part, based on a finding that the Petitioner did not establish that it 
is a qualifying organization doing business in the United States. Specifically, the regulation at 8 
C.F.R. § 214.2(l)(l)(ii)(H) defines that term as: 
Doing business means the regular, systematic and continuous provision of goods 
and/or services by a qualifying organization and does not include the mere presence 
of an agent or office of the qualifying organization in the United States and abroad. 
A. Discussion 
When a petition indicates that a beneficiary is coming to the United States to open a "new office," it 
must show that it is ready to commence doing business immediately upon approval. 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 commence business, that it has the financial ability to 
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Matter of F-0-A-0-W-A-W-, Inc. 
commence doing business in the United States, and that it will support the beneficiary in a 
managerial or executive position within one year of approval. See generally, 8 C.F.R. 
§ 214.2(1)(3)(v). If approved, the beneficiaryis granted a one-year period of stay to open the "new 
office." 8 C.F.R. § 214.2(1)(7)(i)(A)(3). At the end of the one-year period, when the petitioner seeks 
an extension of the "new office" petition, the regulation at 8 C.F .R. § 214.2(1)( 14 )(ii)(B) requires the 
petitioner to demonstrate that it has been doing business "for the previous year" through the regular, 
systematic, and continuous provision of goods or services. See 8 C.F.R. § 214.2(1)(1)(ii)(H) 
(defining the term "doing business"). The mere presence of an agent or office of the qualifying 
organization will not suffice. Jd. 
In the instant matter, the Petitioner has not submitted sufficient evidence in support of the U.S. 
company's business operations during the year preceding the filing of the petition, February 2015 to 
February 2016. In support of the petition, the Petitioner submitted its office lease, dated 
December 21,2015, and commencing on January 1, 2016, for one year. The Petitioner submitted 
receipts for online purchases of furniture and tools, all dated after January 1, 2016. The Petitioner 
also submitted bank statements showing minimal activity with two incoming wire transfers and 
limited debit card purchases from November 1, 2015 to January 31,2016. 
On appeal, the Petitioner states that it is given one year to organize itself~ "but that one year is not a 
firm and definite amount of time[;] it takes some companies more than one year to accomplish this 
goal." The Petitioner states that "because of the nature of [the U.S. company's] functions, it is very 
difficult to meet any deadline with regard to doing business and hiring employees." 
Here, the Petitioner has not provided any evidence of its actual operations from February 2015 to 
December 2015. The Petitioner's lease agreement didn't commence until January 1, 2016, which is 
11 months after it was supposed to have commenced its operations in the United States. Not only 
are the online furniture purchases insufficient to demonstrate that a company is doing business, the 
furniture was purchased in January 2016, which again, is 11 months after the Petitioner was 
supposed to have commenced its operations in the United States. Aside from the fact that the bank 
statements provided start at November 2015, which is nine months after the Petitioner was supposed 
to have commenced its operations in the United States, the minimal activity shown on the bank 
statements also does not demonstrate that the Petitioner has been doing business in the United States. 
Based on the evidence in the record, and the Petitioner's assertions on appeal, we cannot conclude 
that the Petitioner has been doing business in a regular, systematic, and continuous manner for the 
previOus year. 
Despite the petitioner's assertions, it may not be granted a second "new office" L-1 A visa approval. 
The nonimmigrant intracompany transferee visa is not an entrepreneurial visa classification allowing 
a beneficiary a prolonged stay in the United States in a non-managerial or non-executive capacity to 
start up a new business. The regulations allow for a one-year period for the U.S. entity to commence 
doing business and develop to the point that it will support the beneficiary in a qualifying managerial 
or executive position. By allowing multiple petitions under a more lenient standard, USCIS would 
allow foreign entities to create under-funded, under-staffed, or even inactive companies in the 
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Matter of F-0-A-0-W-A-W-, Inc. 
United States, with the expectation that they could receive multiple extensions of their L-1 status 
without primarily engaging in managerial or executive duties. The only provision that allows for the 
extension of a "new office" visa petition requires the petitioner to demonstrate that it is staffed and 
has been "doing business" in a regular, systematic, and continuous manner for the previous year. 8 
C.P.R. § 214.2(1)(14)(ii). 
Based on the evidence in the record, the Petitioner has not established that its petitioning U.S. 
company has been doing business in the United States for one year prior to filing the instant petition. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition, in part, based on a finding that the Petitioner did not establish that 
the Beneficiary will be employed in a managerial or executive capacity under the extended petition. 
The Petitioner has not specifically described the Beneficiary's proposed position as either 
managerial or executive. Therefore, our analysis will explore both. 
Section 101(a)(44)(A) ofthe 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; 
(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. 
Further, "a first-line supervisor is not considered to be acting in a managerial capacity merely by 
virtue ofthe supervisor's supervisory duties unless the employees supervised are professional." ld. 
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; 
Matter of F-0-A-0-W-A-W-, Inc. 
(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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
A. Discussion 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary would be 
employed in a managerial or executive capacity under the extended petition. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F .R. § 214.2(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 in a managerial or executive capacity. !d. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. VSCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In the L Classification Supplement to Form 1-129, where asked to describe the Beneficiary's 
proposed duties in the United States, the Petitioner stated that the Beneficiary will "manage new 
company[;] negotiate and sign contracts for office space and vendor agreements[; and] hire and train 
staff for non-profit." 
In its initial letter of support, the Petitioner listed the Beneficiary's proposed job duties as follows: 
• Coordinate the activities relating to the establishment of a new office 
• Hire, train, and supervise lower level management personnel 
• Negotiate contractual agreements with landlord, vendors and contractors 
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Matter of F-0-A-0-W-A-W-, Inc. 
• Represent [the foreign entity] at the United Nations to continue to secure donors 
and collaborative partners to advance the organizations' interests in Sri Lanka 
• Identify additional institutional funders and formulate proposals to secure funding 
• Establish and maintain effective working relationship with institutional funders, 
governmental representatives and project partners 
• Supervise and review the activities of subordinate managers 
• Chair regular board meetings and provide information as requested by board 
members 
• Ensure that municipal and federal regulations relating to operations of non-profit 
organizations are adhered to 
• Liaise with [the foreign entity] in Sri Lanka and prepare necessary reports 
This list of job duties was vague and did not provide any insight as to what the Beneficiary would 
actually do on a day-to-day basis. While the broadly stated responsibilities suggest that the 
Beneficiary would have managerial authority over the petitioning company, there is insufficient 
detail to establish that his actual duties would be primarily managerial or executive in nature. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
. aff'd, 905 F .2d 41 (2d. Cir. 1990). 
In response to the Director's request for evidence (RFE), the Petitioner submitted a letter stating that 
the U.S. company represents the interests of the foreign entity at the United Nations and while the 
Beneficiary is employed by the U.S. company, he represents the foreign entity. The Petitioner also 
stated that, as the head of the company in the United States, the Beneficiary has the authority to hire, 
train, supervise, and terminate the services of future employees. 
Here, rather than providing clarification on the Beneficiary's proposed duties and additional details 
about the actual tasks he will perform in carrying out his listed duties, the Petitioner did not provide 
any information. The Petitioner, again, has not provided any insight as to what the Beneficiary will 
actually be doing on a day-to-day basis under the extended petition. The Petitioner did not provide 
any additional information about the Beneficiary's duties or how much time he will devote to each 
of them. The Petitioner's description of the Beneficiary's job duties does not establish what 
proportion of the Beneficiary's duties will be managerial or executive in nature, if any, and what 
proportion will be non-managerial or non-executive. See Republic ofTranskei v. INS, 923 F.2d 175, 
177 (D.C. Cir. 1991 ). These general statements do not offer any clarification as to the Beneficiary's 
actual proposed duties in the United States, and fall considerably short of demonstrating that that the 
Beneficiary will primarily manage the organization,· supervise and control the work of other 
supervisory, professional, or managerial employees, direct the management of the organization, or 
establish goals and policies. Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The petitioner has not provided any detail or explanation of the 
beneficiary's proposed activities in the course of his daily routine. The actual duties themselves will 
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Matter of F-0-A-0-W-A-W-, Inc. 
reveal the true nature ofthe employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108, af('d, 
905 F.2d 41 (2d. Cir. 1990). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
In response to the RFE, the Petitioner also addressed its lack of employees and stated that, as a 
non-profit organization, it has delayed the significant outlay of cash involved in acquiring other 
managerial staff. The Petitioner refers to its business plan which states that it would use interns 
during its first year of operations and major hires would take place in its second year. The Petitioner 
submitted an organizational chart for the U.S. company, listing a manager, a project manager, and a 
fundraising manager, all directly subordinate to the Beneficiary, and all "to be hired." The Petitioner 
also submitted a document detailing its interns during its first year of operations, listing one intern as 
"full-time administrative support," and four additional interns as "part-time administrative support," 
among other representational tasks. 
In this matter, the proposed position of the Beneficiary is chief executive officer. The petitioner has 
not demonstrated that the Beneficiary, as listed in his job duties, will be primarily supervising a 
subordinate · staff of professional, managerial, or supervisory personnel. See section 
101(a)(44)(A)(ii) of the Act. Furthermore, the petitioner has not established that it employs a staff 
that will relieve the Beneficiary from performing non-qualifying duties so that the Beneficiary may 
primarily engage in managerial or executive duties. Further, regardless of the Beneficiary's position 
title, the record is not persuasive that the Beneficiary will function at a senior level within an 
organizational hierarchy. Even though the enterprise is in a preliminary stage of organizational 
development, the petitioner is not relieved from meeting the statutory requirements. Although the 
Petitioner submitted a list of interns at the U.S. company for the previous year, it is not sufficient to 
show that the Beneficiary supervises professional, managerial, or supervisory employees, or that he 
is relieved from performing non-qualifying duties. 
On appeal, the Petitioner states that it is given one year to organize itself, "but that one year is not a 
firm and definite amount of time[;] it takes some companies more than one year to accomplish this 
goal." The Petitioner states that "because of the nature of [the U.S. company's] functions, it is very 
difficult to meet any deadline with regard to doing business and hiring employees." In a separate 
brief, the Petitioner states that "it is very difficult to establish that the Beneficiary is performing 
managerial duties when the company is still in the early stages of formation and is still in the process 
of soliciting employees for hire." 
The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) only allows the "new office" operation one year 
within the date of approval of the petition to support a managerial or executive position. There is no 
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Matter of F-0-A-0-W-A-W-, Inc. 
provision in USCIS regulations that allows for an extension of this one-year period. If a business 
does not have the necessary staffing after one year to sufficiently relieve the beneficiary from 
performing operational and "administrative tasks, the petitioner is ineligible by regulation for an 
extension. Here, it appears that the Petitioner concedes to USCIS that the U.S. company has not 
developed to a point where it has hired or will hire sufficient staff to relieve the Beneficiary from 
performing non-qualifying operational duties. The Petitioner appears to concede that the 
Beneficiary is not performing in a managerial or executive capacity and does not clearly indicate that 
he would perform in a managerial or executive capacity under the extended petition. In the instant 
matter, the Petitioner has not reached the point that it can employ the Beneficiary in a qualifying 
managerial or executive position. 
Based on the record discussed above, the Petitioner has not established that the Beneficiary would be 
employed in a managerial or executive capacity under the extended petition. 
V. CONCLUSION 
The petition will be denied for the above stated reasons, with each considered 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 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 
(BIA 2013 ). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-0-A-0-W-A-W-, Inc., ID# 99106 (AAO Nov. 17, 2016) 
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