dismissed L-1A Case: Persian Rugs

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
------ -" 
prevei~t cl;arly unwamtcA 
invasion of personal oriva, 
FILE: WAC 02 110 53923 Office: CALIFORNIA SERVICE CENTER Date: 
 AUG 1 1 2009 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 
103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
5 103.5(a)(l)(i). 
u~ctin~ Chief, Administrative Appeals Office 
WAC 02 110 53923 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnmigrant 
visa. On appeal, the Administrative Appeals Office (AAO) remanded the matter for further action. 
The matter is now before the AAO upon certification of the director's subsequent, adverse decision. 
The decision of the director will be affirmed and the petition will be denied. 
The petitioner filed this nonimmigrant petition on February 12, 2002, seeking to employ the 
beneficiary in the position of "president" as an L-1A nonirnmigrant intracompany transferee 
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 
1 10 1 (a)(15)(L). The petitioner claims to be a subsidiary of the beneficiary's previous employer 
in Iran, Sanam Trading Co. The petitioner, a California corporation, states that it is engaged in 
manufacturing, repairing and sales of Persian rugs. The petitioner seeks to employ the beneficiary 
for a period of one year to open a new office in the United States. 
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, or an affiliate or subsidiary 
thereof, must have employed the beneficiary for one continuous year. Furthermore, the 
beneficiary must seek to enter the United States temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(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 
(l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(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 
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. 
WAC 02 110 53923 
Page 3 
The regulation at 8 C.F.R. 5 214.2(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 1-129, accompanied by the 
following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined 
in paragraph (l)(l)(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 managerial or executive capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
As the facts and procedural history have been adequately documented in the previous decision of 
the AAO, we will only repeat certain facts as necessary here. In this case, the director initially 
denied the petition on February 14, 2002, finding that since the beneficiary is coming to the 
United States to work as an employee of a business entity in Iran, he is not authorized to carry 
out activities in the United States as in intra-company transferee and is not eligible for admission. 
On March 18, 2002, the petitioner filed an appeal with AAO. In the AAO's April 19, 2006 
decision on appeal, the AAO stated that the director must issue two separate decisions on the 
nonimrnigrant petition and the application for change of status. Since the director denied the 
petition based on admission issues, the AAO remanded the petition for further action consistent 
with the decision. Upon remand, the director issued a request for further evidence (RFE) on 
October 20, 2006, which informed the petitioner of the deficiencies in the record and afforded it 
the opportunity to submit further evidence to establish eligibility under section 101 (a)(15)(L) of 
the Act. The petitioner failed to respond to the RFE and the director denied the petition on May 
3, 2007, finding that the petitioner failed to establish that the beneficiary primarily performed 
qualifying managerial or executive duties abroad, and that the petitioner failed to demonstrate 
that the intended U.S. operation, within one year of the approval of the petition, will support an 
executive or managerial position. The director certified his decision to the AAO for review. To 
date, no further submission has been received. Accordingly, the record is considered to be 
complete as it now stands. 
Upon review, the record is not persuasive in establishing that the beneficiary primarily 
performed qualifying managerial or executive duties abroad. 
WAC 02 1 10 53923 
Page 4 
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. $8 214.2(1)(3)(ii) and (iv). The 
petitioner's description of the job duties must clearly describe the duties performed by the 
beneficiary and indicate whether such duties were either in an executive or managerial capacity. 
Id. 
On the Form 1-129, the petitioner described the beneficiary's duties abroad as "manufacturing 
and distributing Persian carpets worldwide," and "repairing and selling carpets." In addition, the 
beneficiary was the owner and managing director of the parent company in Iran since 1982. In 
support of the petition, the petitioner submitted a vague and non-specific one-sentence job 
description which fails to sufficiently describe what the beneficiary did on a day-to-day basis. 
The record is devoid of evidence addressing the duties, or the organization, of the beneficiary's 
subordinate staff of "supervisors" and employees. The fact that a petitioner has given a 
beneficiary a managerial or executive title and has prepared a vague job description does not 
establish that a beneficiary actually performed managerial or executive duties. Specifics are 
clearly an important indication of whether a beneficiary's duties were primarily executive or 
managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 
F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Similarly, the petitioner has failed to establish that the beneficiary acted 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 hnctions of 
the organization, and that person's authority to direct the organization. Section 101 (a)(44)(B) of 
the Act. 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 employees for the beneficiary to direct, and the beneficiary 
must primarily focus on the broad goals and policies of the organization rather than the day-to- 
day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because he has an executive title or because he "directs" 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. For the same reasons 
indicated above, the petitioner has failed to establish that the beneficiary acted primarily in an 
executive capacity. Therefore, the petitioner has not established that the beneficiary was 
employed primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary primarily performed 
managerial or executive duties abroad, and the petition may not be approved for this additional 
reason. 
WAC 02 1 10 53923 
Page 5 
The second issue in this proceeding is whether the petitioner has demonstrated that the intended 
U.S. operation, within one year of the approval of the petition, will support an executive or 
managerial position. 
When a new business is established and commences operations, the regulations recognize that a 
designated manager or executive responsible for setting up operations will be engaged in a 
variety of activities not normally performed by employees at the executive or managerial level 
and that often the full range of managerial responsibility cannot be performed. In order to 
qualify for L-1 nonirnrnigrant classification during the first year of operations, the regulations 
require the petitioner to disclose the business plans and the size of the United States investment, 
and thereby establish that the proposed enterprise will support an executive or managerial 
position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly 
expand as it moves away from the developmental stage to full operations, where there would be 
an actual need for a manager or executive who will primarily perform qualifying duties. 
In addition, if 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 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. 5 214.2(1)(3)(~). If approved, the beneficiary is granted a one-year period of stay to open 
the "new office." 8 C.F.R. 5 214.2(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. 
5 214.2(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. 5 214.2(1)(l)(ii)(H) (defining the term "doing business"). The mere 
presence of an agent or office of the qualifying organization will not suffice. Id. 
The petitioner indicated the beneficiary's proposed duties on the Form 1-129, as "develop the 
new venture as president." In a letter of support, the petitioner stated that the beneficiary is the 
"president of the corporation responsible for planning and directing all operations of the 
business." 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a managerial or executive capacity. When examining the executive or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of 
the job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). The petitioner's description of the job duties must 
clearly describe the duties to be performed by the beneficiary and indicate whether such duties 
are either in an executive or managerial capacity. Id. 
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 
WAC 02 1 10 53923 
Page 6 
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). 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's 
duties that fails to demonstrate what the beneficiary does on a day-to-day basis. For example, 
the petitioner states vague duties such as the beneficiary will be responsible for "planning and 
directing all operations of the business." The petitioner also submitted an organizational chart 
that indicated the beneficiary as president who in turn supervises a secretary (administration) in 
accounting, advertising, personnel and purchasing; a production manager; an employee in 
marketing; and sales representatives. The petitioner did not, however, define the petitioner's 
goals and policies, or clarify the role of the different departments and the subordinates in the 
departments that the beneficiary will supervise. 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. Suva, 
724 F. Supp. at 1108. The petitioner's descriptions of the beneficiary's position do not identify 
the actual duties to be performed, such that they could be classified as managerial or executive in 
nature. 
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 of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to 
the regulatory requirements for the alien entrepreneur immigrant visa classification, Matter of Ho 
is instructive as to 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 
competition's products and pricing structures, and a description of the target 
marketlprospective 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. 
WAC 02 110 53923 
Page 7 
The petitioner did not submit any business plan although specifically requested by the director in 
his RFE. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
 Without a business plan, it is 
impossible to conclude that the U.S. company will support a managerial or executive position 
within one year. Again, 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. at 165. 
Upon review, the petitioner has not submitted sufficient evidence to establish that the intended 
United States operations, within one year of approval, will support an executive or managerial 
position. 
Furthermore, the director sent the petitioner a request for evidence on October 20, 2006, 
requesting additional information regarding all the issues discussed above. The regulation states 
that the petitioner shall submit additional evidence as the director, in his or her discretion, may 
deem necessary. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition 
is filed. See 8 C.F.R. 55 103.2(b)(8) and (12). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. fj 
103.2(b)(14). 
The petition will be denied for the reasons stated above, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
Here, that burden has not been met. Accordingly, the May 3. 2007 decision of the director is 
affirmed and the petition is denied. 
ORDER: 
 The director's decision of May 3,2007 is affirmed. The petition is denied.