dismissed L-1A Case: Pet Services

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
u.S. Citizenship 
PUBLIC COPy and Immigration 
mingcRitadclctedl0 
psncrrt cldy Ul1w~ 
hahn of personal p- 
File: 
 EAC 07 212 51920 
 Office: 
 VERMONT SERVICE CENTER 
 Date: 
 MAY 2 0 2008 
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) 
IN 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. 
by 
ministrative Appeals Office 
EAC 07 212 51920 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnrnigrant 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 general 
manager to open a new office in the United States as an L-1A nonimmigrant intracompany transferee 
pursuant to section IOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 
1101(a)(15)(L). The petitioner, a limited liability company organized under the laws of the State of Florida, 
allegedly operates a pet store. 
The director denied the petition concluding that the petitioner failed to establish: (1) that the United States 
operation will support an executive or managerial position within one year; or (2) that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
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 asserts that the petitioner has established 
that the beneficiary will primarily perform qualifying duties within one year and that he was employed abroad 
in a managerial capacity. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(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 himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
EAC 07 212 51920 
Page 3 
same work which the alien performed abroad. 
In addition, the regulation at 8 C.F.R. tj 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, 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 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 (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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 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 
EAC 07 212 51920 
Page 4 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
I. 
 Ability to Support an Executive or Managerial Position within One Year 
The first issue in this matter is whether the intended United States operation, within one year of the approval of 
the petition, will support an executive or managerial position. 
The petitioner asserts in the Form 1-129 that the beneficiary will be employed as the general manager of the 
United States operation, a single location pet store. The petitioner also asserts that the United States operation 
is a "new office" as defined by the regulations. 
On July 30, 2007, the director requested additional evidence. The director requested, inter alia, evidence 
establishing that the beneficiary was employed abroad in a managerial or executive capacity, job descriptions 
for each employee supervised by the beneficiary abroad, organizational charts for the United States and the 
foreign employer, job descriptions for the beneficiary and his proposed subordinate workers in the United 
States, and evidence that the United States operation will grow to be of a sufficient size to support a 
managerial or executive position within one year. 
In response, the petitioner submitted a "business plan" which states that it will "operate a full pet management 
business [called] LAND-0-PETS in the Bradenton[,] Florida area." The enterprise allegedly sells pets and 
related products as well as provides associated services such as grooming, boarding, aquarium maintenance, 
and fishpond design. The beneficiary is described as performing the following duties: 
To direct management in the performance of the entire store through the store 
manager[.] 
EAC 07 212 51920 
Page 5 
To analyze the overall book report, the overall summary reports, production reports 
and key Indicator reports against the backdrop of external data sources like Industry 
reports, other pet business resources[.] 
On this basis make decisions regarding the business, its function[,] its direction 
constantly maneuvering the store as [a] whole to ensure it[']s achieving the goals set 
before it and actioning [sic] the business model[.] 
Sit a Thursday night meeting with the store manager[.] 
Direct the store manager in the highest standards of overall: customer service, animal 
husbandry, presentation, net sales performance, net profits and cash flow. 
Define store policies, procedures, and standards. 
Ensure the store manager is actioning [sic] the highest level of pet health through 
monitorisation [sic] and record keeping. 
Ensure the store manager is maintaining a well mechandised [sic] store, that the store 
manager is correctly interpreting inventory analysis and is further ensuring the 
process of orders quickly and accurately, and there is timely follow-up on all credits, 
coupons and rebates. 
Provide sales, payables, receivables and all final financial data sources and 
documents to CPA to product financial statements. 
Analyze and take action for improvement from the results of the financial statements. 
Direct and ensure the overall business budgets and overall targets are reached[.] 
Authorize [all1 transactions over $3000.00[.] 
Direct and ensure the maintenance of proper advertising and marketing levels by not 
only analyzing current trends and industry standards but also to fully align the store 
with the movements of competitors. 
Ensure the store is constantly and professionally signed and advertised[.] 
Attend [nlational and [ilnternational trade shows and fairs. 
Develop and maintain good rapport with the Chamber of [Clommerce as well as 
vendor owners, other business owners, bank managers, city officials[,] etc. 
The "business plan" also includes projected income and expenses for the business. This data indicates that the 
petitioner has received $50,000.00 in "paid in capital" and projects that its wages and salaries for the first 
three months will be approximately $27,468.00. Counsel also indicates in his letter dated September 19,2007 
that the petitioner has received a $15,000.00 investment. 
The petitioner also submitted an organizational chart for the United States operation and state and federal 
quarterly wage reports for the second quarter of 2007. The organizational chart shows the beneficiary at the 
top of the organization directly supervising a store manager, who, in turn, is shown 
supervising three subordinate "managers" or "team leaders," who, in turn, are shown supervising 
approximately I0 sales and animal care workers. The quarterly wage reports indicate that the petitioner 
em~loved 13 workers in June 2007 and that it paid $36,373.38 in wages in the second auarter of 2007. It is 
. d - 
noted that the Florida wage report lists 
 as an employee of the petitioner and indicates that hi 
salary is equal to the store manager's salary. However, the organizational chart fails to identify 
as an employee of the petitioner. 
EAC 07 212 51920 
Page 6 
On October 5, 2007, the director denied the petition concluding that the petitioner failed to establish that the 
United States operation will support an executive or managerial position within one year. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval. 
Upon review, counsel's assertions are not persuasive. 
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 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(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. 
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 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 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 andlor 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 
therefor. Most importantly, the business plan must be credible. 
For several reasons, the petitioner in this matter has failed to establish that the United States operation 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 
EAC 07 212 5 1920 
Page 7 
petitioner has failed to specifically describe the beneficiary's proposed duties after the petitioner's first year in 
operation; has failed to establish that the beneficiary will be relieved of the need to perform the non- 
qualifying tasks inherent to the operation of the business by a subordinate staff within the petitioner's first 
year in operation; has failed to establish that a sufficient investment has been made in the United States 
operation; and has failed to sufficiently describe the nature, scope, and financial goals of the new office. 8 
C.F.R. 4 214.2(1)(3)(v)(C). The petitioner also contains several unresolved inconsistencies which undermine 
the petitioner's claim to operate a bona fide business enterprise. 
First, the job descriptions for both the beneficiary and his proposed subordinate workers fail to credibly 
establish that the beneficiary will be performing primarily "managerial" or "executive" duties after the 
petitioner's first year in operation. When examining the proposed executive or managerial capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the proposed job duties. See 8 C.F.R. 
fj 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. 
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis after the petitioner's first year in 
operation. For example, the petitioner claims that the beneficiary will "define store policies, procedures, and 
standards" and will supervise the "store manager." However, the petitioner fails to specifically describe any 
of these policies, procedures, and standards. It is also unclear what, exactly, the beneficiary will do in 
supervising the "store manager." Overall, the record is not persuasive in establishing that a 14-employee, 
single-location pet store will reasonably require the employment of five managers or supervisors organized in 
three tiers to supervise less than 10 sales and animal care workers. The fact that the petitioner has given the 
beneficiary a managerial or executive title and has prepared a vague job description which includes inflated 
duties does not establish that the beneficiary will actually perform managerial duties after the first year in 
operation. Specifics are clearly an important indication of whether a beneficiary's duties will be 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. 1103 (E.D.N.Y. 1989), afd, 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 SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Likewise, the record is not persuasive in establishing that the beneficiary will be, after the first year, relieved 
of the need to "primarily" perform the non-qualifying tasks inherent to his duties or to the operation of the 
business in general. While the petitioner claims to employ 14 staff members, the record does not credibly 
establish that the petitioner actually employs, or is able to employ, any of these workers. First, the quarterly 
wage reports submitted by the petitioner are both unsigned and uncertified and are of minimal evidentiary 
value. Second, the record is devoid of evidence that the petitioner, as the owner of a business called Land-o- 
Pets having a federal tax identification number of has actually both employed these individuals 
and remitted payments to taxing authorities. Third, the record contains unresolved inconsistencies which 
undermine the petitioner's claim to employ these workers. For example, the petitioner claims in the wage 
reports to employ and that this individual is paid the same salary as the "store manager." 
EAC 07 212 51920 
Page 8 
However, 
 does not appear anywhere on the organizational chart for the United States operation. 
e 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 Ho, 19 I&N Dec. 582, 591- 
92 (BIA 1988). 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. Id. at 591. 
Even assuming that the petitioner has hired and employs the workforce described in the petition, the record is 
not persuasive in establishing that the beneficiary will supervise and control the work of professional 
employees or will manage an essential function of the organization within one year. As noted above, the 
record is not persuasive in establishing that the proposed single-location, 14-employee pet store will acquire 
an organizational complexity which will require the employment of a subordinate tier of managers or 
supervisors ultimately supervised by an employee who performs primarily managerial or executive duties. 
An employee will not be considered to be a manager or an executive simply because of a job title, because he 
or she is arbitrarily placed on an organizational chart in a position superior to all other workers, or even 
because he or she supervises daily work activities and assignments. 
In this matter, it appears more likely than not that the beneficiary will be, at most, a first-line supervisor of pet 
store workers and will primarily perform the tasks necessary to the operation of the pet store. An employee 
who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to 
be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the 
Act; see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988); Family, Inc. 
v. US. Citizenship and Irnrnigration Services, 469 F.3d 13 13, 13 16 (9th Cir. 2006). A managerial 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. 101(a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has failed to establish that the beneficiary will be primarily employed in a 
managerial or executive capacity within one year, and the petition may not be approved for that reason. 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because it failed to establish that a sufficient investment was made in the 
enterprise. 8 C.F.R. tj 214.2(1)(3)(v)(C)(2). In this matter, the petitioner claims to have received a $15,000.00 
investment. In support of this claim, the petitioner submitted copies of 15 American Express Traveler's 
Cheques in $1,000.00 denominations made payable to "Sinclair Brokerage." However, the petitioner failed to 
establish that these traveler's cheques constitute a bona fide investment in the United States operation. The 
source of these funds was not disclosed, and the payee on the cheques is not the United States operation. The 
petitioner also failed to submit an escrow agreement related to the $15,000.00 payment that could 
demonstrate that the funds were committed to the United States organization. Accordingly, this evidence is 
not persuasive in establishing that an investment was made in the United States operation. 
Furthermore, even assuming that the $15,000.00 in traveler's cheques constitutes an "investment," it has not 
been established that a $15,000.00 investment will permit the enterprise to succeed and rapidly expand as it 
EAC 07 212 51920 
Page 9 
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. As noted above, the petitioner claims in 
its business plan to have received $50,000.00 in "paid in capital." It also projects that its wages and salaries 
for the first three months, and for each quarter thereafter for the first year in operation, will be approximately 
$27,468.00. However, the record indicates that the petitioner has received, at most, a $15,000.00 investment 
and that it has paid $36,373.38 in wages in the second quarter of 2007. As it appears that the petitioner's costs 
will be substantially higher than projected, and its initial investment was substantially lower than reported, the 
record is not persuasive in establishing that the $15,000.00 "investment" would sufficiently support the 
establishment and growth of the United States operation. 
Accordingly, as the petitioner has failed to establish that it has received a sufficient investment, the petition 
may not be approved for this additional reason. 
Third, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner has failed to credibly describe the nature, scope, 
and financial goals of the new office. 8 C.F.R. tj 214.2(1)(3)(v)(C)(l). 
 As explained above, the petitioner 
claims to operate a pet store. While the record contains a document titled "business plan," which includes 
revenue, income, and expense projections, this document is generally not corroborated by any credible, 
objective evidence. Furthermore, the evidence in the record, e.g., wage reports and copies of traveler's 
cheques, generally contradicts the projections in the business plan. Also, the petitioner fails to clearly 
describe its competitors, business relationships, pricing, licensing requirements, or hiring strategy. Absent a 
detailed, credible description of the petitioner's proposed United States business operation specifically 
addressing the petitioner's proposed services, pricing, marketing plan, competitors, and customers, it is 
impossible to conclude that the proposed 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. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. tj 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
11. Employment Abroad 
The second issue in the present matter is whether the petitioner has established that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
The petitioner claims in the Form 1-129 that the beneficiary was the "general manager" of the foreign 
employer, a South African partnership which operates a pet store. 
As noted above, on July 30, 2007, the director requested, inter alia, evidence establishing that the beneficiary 
was employed abroad in a managerial or executive capacity, job descriptions for each employee supervised by 
the beneficiary abroad, and an organizational chart for the foreign employer. 
EAC 07 212 51920 
Page 10 
In response, the petitioner submitted a letter from the foreign employer, a copy of the foreign employer's 
partnership agreement dated December 21, 2005, an organizational chart, and a description of the 
beneficiary's duties abroad. The petitioner did not describe the duties of any of the beneficiary's claimed 
subordinate workers. The organizational chart shows the beneficiary at the top of the organization 
supervising directly or indirectly nine workers. The beneficiary's job duties are described as follows: 
To direct employees in the performance of the entire store. 
Make decisions regarding the business, its function, its direction to ensure it is 
achieving the goals set by the owner and actioning [sic] the store[']s business model. 
Direct the store in the highest standards of customer service, animal husbandry and 
presentation. 
To ensure the store[']s inventory levels are well maintained by directing the 
employees in monthly stock takes and time follow ups on customer returns and 
damaged returned items. 
Doing the daily banking and deposits, and authorizing the outgoing payments. 
Ensure that the store is constantly signed and advertised. 
To build and develop relationships with old and new customers alike. 
To direct and oversee all new store development and new product merchandizing. 
On October 5, 2007, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary was employed abroad in a primarily managerial or executive capacity. 
On appeal, counsel asserts that the petitioner has established that the beneficiary performed qualifying duties 
abroad. 
Upon review, counsel's assertions are not persuasive. 
In this matter, the petitioner failed to describe the beneficiary as performing primarily qualifying managerial 
or executive duties in his operation of a pet store in South Africa. Given the size and nature of the business, it 
appears more likely than not that the beneficiary was, at most, a first-line supervisor of non-professional 
workers and performed non-qualifying administrative and operational tasks necessary to the operation of the 
pet store. Ascribed duties such as "doing the daily banking" and "develop relationships with old and new 
customers alike" are not qualifying managerial or executive duties. As the record does not establish how 
much time the beneficiary devoted to such non-qualifying tasks, it cannot be concluded that he was employed 
in a primarily managerial or executive position. Moreover, vague, managerial-sounding duties such as "direct 
the store" and "make decisions regarding the business" are not probative of the beneficiary actually 
performing qualifying 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. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. 
Finally, the petitioner failed to describe the duties of the beneficiary's purported subordinates abroad even 
though this evidence was specifically requested by the director. 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). Absent 
EAC 07 212 51920 
Page 11 
detailed descriptions of the duties of both the beneficiary and his purported subordinates, it is impossible for 
Citizenship and Immigration Services (CIS) to discern whether the beneficiary was "primarily" engaged in 
performing managerial or executive duties abroad. See sections 101(a)(44)(A) and (B) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. at 604. Once again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N 
Dec. 190). 
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or 
executive capacity as required by 8 C.F.R. 5 214.2(1)(3)(v)(B), and the petition may not be approved for this 
reason. 
111. 
 Beyond the Decision of the Director 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was "employed" 
abroad full-time by a qualifLing organization for at least one continuous year within the past three years. 
As noted above, the petitioner claims that the beneficiary has been employed abroad as "general manager" of 
a South African pet store. The pet store is allegedly owned and operated by a South African partnership 
consisting of the beneficiary and a third party. According to the partnership agreement dated December 2 1, 
2005, the beneficiary allegedly owns a 51% interest in the partnership. While the agreement also indicates 
that the store is an "ongoing concern," the record does not establish the ownership structure of the pet store 
prior to the creation of the partnership in December 2005 and does not address the beneficiary's employment, 
assuming he was employed, prior to the creation of the partnership. Finally, the record indicates that the 
beneficiary traveled to the United States in January 2006 on a tourist visa and has been in the United States 
since that time. 
In view of the above, the petition is not persuasive in establishing that the beneficiary was employed abroad 
for one year by a qualifying organization. First, it appears that a South African partnership is not distinct 
from its partners. Neither a sole proprietorship nor a partnership is a legal entity apart from its owner or 
owners. Matter of United Investment Group, 19 I&N Dec. 248 (Comm. 1984). 
 As the beneficiary is 
allegedly the majority owner of the partnership, it appears that the petitioner is claiming that the beneficiary 
employed himself in South Africa. As this visa classification requires that the beneficiary have been 
employed by a qualifying organization, the beneficiary's self-employment abroad would not qualifying him 
for the beneficiary sought. Second, it appears that the beneficiary was employed by the claimed foreign 
employer, the South African partnership, for less than one month prior to traveling to the United States. The 
record is devoid of evidence addressing the beneficiary's employment prior to the creation of the partnership 
in December 2005. Once again, going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Sofjci, 22 I&N Dec. at 165 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190). 
Accordingly, the petitioner has failed to establish that the beneficiary was "employed" abroad full-time by a 
qualifying organization for at least one continuous year within the past three years, and the petition may not 
EAC 07 212 51920 
Page 12 
be approved for this additional reason. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 3 214.2(1)(3)(vii). 
In this matter, the petitioner claims to be 100% owned and controlled by the beneficiary. As the purported 
owner of the petitioner, the petitioner is obligated to establish that the beneficiary's services will be used for a 
temporary period and that he will be transferred to an assignment abroad upon completion of the assignment. 
Id. However, the record is devoid of any evidence establishing that the beneficiary's services will be used 
temporarily. Once 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 (citing 
Matter of Treasure Craft of Caltfornia, 14 I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are 
qualifying organizations. 
The regulation at 8 C.F.R. Ij 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. Ij 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing 
business." "Affiliate" is defined in part as "[olne of two subsidiaries both of which are owned and controlled by 
the same parent or individual." 8 C.F.R. tj 214.2(1)(1)(ii)(L)(I). "Doing business" is defined in part as "the 
regular, systematic, and continuous provision of goods andlor services." 8 C.F.R. Ij 2 14.2(1)(l)(ii)(H). 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm. 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
In this matter, the petitioner has failed to establish that it is doing business as "Land-o-Pets." While the 
petitioner has submitted bank statements, invoices, and business documents related to the operation of a pet 
store in Bradenton, Florida, and which bear a company name and address identical to the petitioner's name 
and address, these documents do not appear to relate to the business described in the business plan. First, it is 
EAC 07 212 51920 
Page 13 
not credible that the petitioner's claimed business could grow from a $15,000.00 initial investment into a 14- 
employee retail establishment with over $150,000.00 in monthly cash flow without either significant outside 
investment or financing. As the record is devoid of evidence of the existence of such support, it is not 
credible that these business documents actually pertain to the petitioner's claimed business enterprise, Land-o- 
Pets. Second, it appears that the business documents in question, e.g., the bank statements and advertising 
invoices, actually pertain to a "Petland" retail store and not to the petitioner's claimed business enterprise. If 
CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 
8 U.S.C. § 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, 
Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). Moreover, the petitioner's submission of documents which do not pertain to the petitioner's business in 
an attempt to mislead CIS into believing that it is a bona find enterprise brings into question the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. See Matter of Ho, 19 I&N Dec. 
at 591. 
Accordingly, as the record is not persuasive in establishing that the petitioner is doing business as described in 
the record, the petitioner has failed to establish that it is a qualifying organization, and the petition will not be 
approved 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 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), afld, 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 on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 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. § 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.