dismissed L-1A Case: Real Estate Development

y 
 U.S. Deoartment of Homeland Securitv 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
inviisisn ofpzrsenal privacy 
 U.S. Citizenship 
and Immigration 
mF JG COPY 
File: EAC 08 196 51459 Office: VERMONT SERVICE CENTER Date: JUN 1 6 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 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. 9 103.5 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, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
F. Grissom 
Acting Chief, Administrative Appeals Office 
EAC08 19651459 
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 extend the beneficiary's employment 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 New York corporation established in 2004, claims 
to be engaged in the purchase, sale and development of real estate. It states that it is a subsidiary of Bookman 
Trading, S.A., located in Belgium. The beneficiary has been employed as the petitioner's managing director 
and chief executive officer in L-1A status since 2005 and the petitioner now seeks to extend his status for 
three additional years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity. The director further determined that the petitioner 
does not have sufficient physical premises to house the U.S. company, based on its submission of an expired 
lease agreement. 
On appeal, counsel for the petitioner asserts that the beneficiary qualifies for the benefit sought as a function 
manager, as he is responsible for the petitioner's essential function, performs at a senior level within the 
organization, and exercises discretion over the day-to-day operations of the company. Counsel further asserts 
that the director overlooked evidence submitted to establish that the petitioner does in fact have a valid lease 
agreement. Counsel submits a brief and additional evidence in support 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 qualifLing 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. 5 214.2(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. 
EAC 08 196 5 1459 
Page 3 
(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 hider 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 primary issue addressed by the director is whether the petitioner established that beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. $ 1 101(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. 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. $ 1 101(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. 
EACO8 19651459 
Page 4 
The petitioner filed the nonimmigrant petition on July 8, 2008. The petitioner indicated on Form 1-129 that it is 
engaged in "property development" and has four employees. In a letter dated July 7, 2008, the petitioner stated 
that the company has recently begun work on some "promising opportunities" in the United States that were 
"orchestrated by the efforts of [the beneficiary]." The petitioner emphasized that the beneficiary is "the most 
appropriate person to continue directing and managing our New York ofice." The petitioner did not further 
describe the beneficiary's job duties. 
The petitioner did identify three projects allegedly being developed by the petitioning company. The first project, 
identified as "1, involves the development of an empty office building in Syracuse, 
New York. The pet~t~oner stated that "[algreements are underway for build-out of the property to the 
specifications of the City of Syracuse Municipal Departments." The petitioner stated that it was attaching a Letter 
of Intent from the City of Syracuse. 
As evidence to corroborate the petitioner's involvement in the project, the petitioner submitted: 
A letter dated May 19, 2008 from Director of Economic Development for 
the City of Syracuse, addressed to Isaac Jabobs of Carnegie Management, Inc.- 
stated that he would 
 anagement and its 
consultants concerning 
A copy of the Prelimi project prepared by 
which identifies Carnegie Management as project owner. The document 
contains no reference to the petitioning company. 
A limited liability company operating agreement for Syracuse Mutual, LLC, entered into on 
members. 
The petitioner further stated that it has two infrastructure and development projects for the City of Bamako in 
Mali, including four road construction agreements made directly between the city and the petitioner, and a major 
highway reconstruction project for which the petitioner formed a joint venture with Ashstrom International, Ltd. 
The petitioner submitted the following evidence related to these projects: 
A "Cooperation Agreement" executed between the petitioner and Ashtrom B.V., a Dutch 
company, on October 25,2007, by which the petitioner agreed to introduce Ashtrom to the 
government of Mali as a suitable contractor for the highway construction project and 
recommend that they engage in a contract with Ashtrom for project implementation. If a 
binding contract is signed, the petitioner is entitled to a finder fee and regular reports of 
financial information regarding revenues received by Ashtrom during the course of the 
project. 
A copy of a letter of intent dated November 21, 2007 which was addressed by Ashtrom 
International Ltd. to the Minster of Transportation of the Republic of Mali. 
Company information regarding Ashtrom. 
EAC 08 196 51459 
Page 5 
Various "motions" and "acts of engagement" related to road construction to be performed 
by Rodex Construction S.A. for the City of Bamako. The documents are not dated and no 
"date of approval" has been completed. 
An attestation executed by the beneficiary indicating that the petitioning company took 
ownership of 51 percent of the capital of the Mali company known as "Rodex 
Constructions" on June 9,2008. 
A letter dated June 26, 2007 fiom the General Secretary of Promotion and Investments for 
the Republic of Mali, 1 thanking the beneficiary "to have expressed to 
contribute to the development of the projects in the sectors of telecommunications, of 
construction of roads and social housing." Secretary Simpara stated "We wish that you to 
carry out these development projects within the best possible times." 
Finally, the petitioner stated that the U.S. company "is acting as concessionaire of prepaid electric meters and is 
under a long-term contract with Mali to provide prepaid electric meters to 20 million consumers." The petitioner 
stated that the units will be supplied by CCC Electronics Ltd and purchased by "Trizyum" for final distribution in 
Mali, and explained that the petitioning company will oversee and manage the installation in stages. The 
petitioner explained that the "CC bid has been tendered to the Republic and is in process." As evidence of this 
project, the petitioner submitted: 
A "Notice of Extension -Tender Guarantee", dated October 31, 2007 and addressed to 
" The document refers to a contract for supply of 22,000 Electric Power 
Meters for the sum of "USD 116.000,OO" and indicates that the tender has been extended 
until February 6, 2008. The com an extending the tender was "Kuveyt Turk Katilim 
Bankasi A.S.," represented by 
 and -. 
A shareholder a reement made on January 3 1, 2008 between the beneficiary, - 
and 
 in which the beneficiary agrees to purchase, and 
 and Sener 
agree to sell to him, 50 percent of the shares in a Turkish company known as "Trizyum 
Bilgisayar Elektronik Elektrik Insaat Ithalat Ihracaat Sanayii ve Ticaret Limited Sirketi." 
According to the terms, the agreement would be entered into force if CCC Elektronik 
agrees to sell all of its products exclusively to Trizyum for a period of five years. 
An Agreement dated September 1, 2007 between the petitioning company, CCC 
Electronics Co. Ltd., and - for the formation of a new Turkish company 
called "Bookman & CCC" for the purpose of taking part of a tender opened in the Republic 
of Mali. The petitioner is responsible for establishing connections and making negotiations 
with the owner of the tender. The company known as Bookman & CCC "will be 
established after winning the tender." (The record also contains a nearly identical agreement 
between these parties dated July 16,2007.) 
A pro forma invoicelprice quote dated July 18, 2007 issued by CCC Electronic Ltd. to 
Bookman & CCC Engineering and Trading Company dated July 18, 2007, for 22,000 
electricity power meters. 
Various untranslated documents written in the French language 
Product information provided by CCC Electronics. 
EAC 08 196 5 1459 
Page 6 
Tender offer for the supply of 22,000 Electronic Meters by the petitioner and CCC Co., 
dated August 3 1,2007. 
The petitioner submitted evidence of wages paid to employees in 2006 and 2007, including Forms W-2, Wage 
and Tax Statements, payroll records and copies of state quarterly wage reports. The evidence shows that the 
petitioner paid four workers, including the beneficiary, in 2006 and during part of 2007. According to the payroll 
records, two employees, 
 and 
 were both hired on August 30, 2006 and terminated 
on May 2,2007. The employees after that date included only the beneficiary and 
- 
In addition, the petitioner provided copies of its Forms 1120, U.S. Corporation Income Tax Return, for 2006 and 
2007. The petitioner reported no gross receipts or sales in either year. 
The director issued a request for additional evidence (RFE) on July 17,2008, in which he instructed the petitioner 
to submit, inter alia, the following: (1) a complete position description for all employees, including one for the 
beneficiary's position; (2) a breakdown of the number of hours devoted to each employee's job duties on a weekly 
basis; (3) copies of quarterly tax returns for the first two quarters of 2008; and (4) additional information 
regarding the beneficiary's position including his degree of discretionary decision-making authority over day-to- 
day operations and the amount of time he will allocate to manageriaVexecutive duties. 
In a letter dated August 25,2008, the petitioner stated: 
[The beneficiary] performs at a senior level within the petitioner's organization with respect to 
the function managed, and exercises direction over the day-to-day operations of his assigned 
activities. 
This in and of itself is sufficient at law to qualify the beneficiary's capacity as managerial. 
[The beneficiary] manages all company employees who work full-time but get paid at less-than- 
full-time salaries. They have agreed to do so in exchange for bonuses which will reflect a 
proportion of profits when the company sees profits. 
The petitioner explained that it had initially identified five projects in the United States, but that four of them fell 
through because they required "a certain investment/loan combination," and were adversely impacted by the 
unavailability of mortgages in the current real estate economy. The petitioner identified the 300 Washington 
Street Project as its only current US, project and noted that the beneficiary has "kept the petitioner alive fiscally 
by turning focus to international real estate development." 
The petitioner further stated: 
EAC 08 196 5 1459 
Page 7 
[The beneficiary's] leadership and judgment skills have been essential, vital and critical 
throughout the progress on all these projects and his direction and management are crucial to 
their successful consummation. 
The management and personnel structure that you are focusing upon is a traditional one. 
You need not use that framework. 
First, that framework is not required at law to qualify as a manager. As mentioned above, a 
manager may manage a "particular function" of the petitioner and still qualify. 
It is because of the petitioner's flexibility which [the beneficiary] designed that the petitioner has 
remained a viable and active concern. 
Second, it would be ironic for the petitioner to be penalized in Immigration for the very same 
structure that has kept it economically viable. 
The petitioner submitted copies of its Forms 941, Employer's Quarterly Federal Tax Return, for the first two 
quarters of 2008, which reflect payments to two employees. 
Nevertheless the petitioner submitted an employee list which includes the beneficiary, - - and an accountant. The petitioner stated that the beneficiary performs the following 
duties: 
Plans and directs the company operations: Supervises employees, Negotiates and executes terms 
of agreements with outside entities, including partnerships, Meets with outside representatives. 
Formulates policies, manages daily operations, and planning the use of materials and human 
resources. 
The petitioner indicated that 
 is employed as project scout and coordinator and performs the 
following duties: 
Searches for potential investment vehicles and promising corporate projects, Coordinates and 
attends meetings with corporate contacts, Provides administrative assistance in the planning and 
implementation of a project; reviews and implements procedures and techniques and 
recommends changes to improve efficiency to meet corporate needs. 
Finally, the petitioner indicated that 
 is the company's investment advisor and is 
employed as a secretary. 
The director denied the petition on September 9, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity. In denying the petition, the director 
observed that "the beneficiary is actually performing the services and or duties of the company by negotiating and 
EAC 08 196 5 1459 
Page 8 
executing terms of agreements with outside entities and meeting with outside entities." The director also noted 
that the petitioner's evidence indicates that the company has two employees, not four as claimed, and found that 
the company does not have sufficient staff to remove the beneficiary from actually performing the day-to-day 
activities of providing a service. 
On appeal, counsel for the petitioner concedes that the petitioner employs two employees, but claims that the 
beneficiary's spouse,, acts in a voluntary capacity. Counsel asserts the beneficiary manages the 
most important function of the petitioner, namely, negotiating and execution of agreements, and that this fact 
alone is sufficient to establish his employment in a managerial capacity. Counsel indicates that the beneficiary 
"performs at a senior level within the petitioner's organization with respect to the negotiation [and] execution of 
agreements . . . and exercises direction of the day-to-day operations of his assigned activities." 
In support of the appeal, the petitioner provides a position description for the beneficiary indicating the 
percentage of time he spends on each duty on a weekly basis, as follows: 
Negotiates and executes terms of agreements with private and governmental entities. 
Review of reports of financial viability of prospective new development projects. 
Meeting with representatives of co-investors 
Formulates policies, manages daily operations 
Planning the use of human resources and company operations. 
Conferring with administrative personnel, and review activity, operating and income 
reports to determine changes in programs or operations required. 
Representing company at industry and trade associations. 
Coordinating activities of rental personnel to effect operational efficiency and economy 
(Syracuse Mutual for 300 Washington Street Property). 
Coordinating activities of construction crews and contractor personnel to effect 
operational efficiency and economy in Bamako road development projects (see list of 
current projects). 
Analyzing market reports to determine project viability, volume potential, rent 
schedules, and comparable properties to accommodate goals of company. 
Upon review, the petitioner has not established that the beneficiary will be employed in a primarily managerial or 
executive capacity. 
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. 5 214.2(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. The AAO will then 
consider this information in light of the petitioner'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 petitioner's business, and any other factors that will contribute to a 
complete understanding of a beneficiary's actual duties and role in a business. 
EAC 08 196 5 1459 
Page 9 
Here, the petitioner initially provided no information regarding the beneficiary's duties beyond indicating that 
he would "continue directing and managing" the company. Conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
Therefore, the director explicity requested a complete position description for the beneficiary, including 
information regarding the amount of time he would spend on specific duties on a weekly basis, and the 
percentage of time he would devote to executive/managerial duties. In response, the petitioner stated that the 
beneficiary "performs at a senior level within the organization with respect to the function managed, and 
exercises direction over the day to day operations of his assigned activities"; "manages all company 
employees"; "plans and directs the company operations"; "formulates policies"; and "manages daily 
operations." This description cannot be reasonably considered "complete." 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. 1103, 1108 (E.D.N.Y. 1989), afd, 
905 F.2d 41 (2d. Cir. 1990). 
Furthermore, the petitioner neglected to respond to the director's request for a breakdown of the amount of 
time he devotes to each specific duty on a weekly basis. Any faiIure 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). 
Instead, the petitioner emphasized that the beneficiary manages a "particular function" of the organization and 
that "this in and of itself is sufficient at law to qualify the beneficiary's capacity as managerial." Contrary to 
the petitioner's assertion, a petitioner cannot establish that the beneficiary qualifies as a function manager 
under Section 10l(a)(44)(A) of the Act merely by stating that he manages a "particular function" or performs 
a critical role in the company. Such unsupported assertions cannot be accepted in lieu of a detailed description 
of the beneficiary's actual duties. 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)). 
The AAO acknowledges the petitioner's statements that the beneficiary is responsible for "negotiating and 
executing terms of agreements with outside entities, including partnerships," and "meeting with outside 
representatives." There are aspects of these duties which would reasonably require the beneficiary to perform 
in a managerial capacity, either by representing the petitioner in meetings with government officials or 
finalizing the terms of agreements with business partners. However, the evidence submitted with the petition 
does not establish that such duties constitute the beneficiary's primary duties as president of the petitioning 
company. Furthermore, the evidence of record does not support a finding that the beneficiary is necessarily 
acting on behalf of the petitioning company in conducting such negotiations. 
For example, the petitioner claims that one of the U.S. company's projects involves the complete renovation 
of an office building in Syracuse, New York. None of the documentation submitted with respect to this 
' EAC 08 196 51459 
Page 10 
project contains any reference to the petitioning company. It appears that the beneficiary in his personal 
capacity became a minority member of a limited liability company known as "Syracuse Mutual, LLC" in 
2006, but the role of this company in delivering the project has not been explained. The proposal made to the 
City of Syracuse came from a different company with no apparent relationship to the petitioner. Therefore, 
the beneficiary's exact role in the development of this project cannot be determined. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soflci, 22 I&N Dec. at 165. 
The evidence is similarly unclear for the projects claimed to be undertaken in Mali. The petitioner stated that 
a Turkish company called "Trizyum" will be responsible for purchasing electric power meters for distribution 
in Mali. Based on the shareholders agreement for this company, it will be 50 percent owned by the 
beneficiary in his personal capacity and not by the petitioning company. The beneficiary appears to have 
formed another company in Mali called Rodex Construction, S.A. for road construction work. While there is 
an attestation in the record indicating that the petitioner acquired a majority interest in this company as of 
June 2008, there is insufficient evidence to document this claim. Overall, it is not clear that the beneficiary's 
responsibilities for negotiating agreements are performed in his capacity as president of the petitioning 
company, or, as discussed further below, that the U.S. company is even doing business as defined in the 
regulations. 
Finally, the petitioner has not identified any new projects under review or undertaken by the U.S. company, 
and it is unclear what, if any activities the company has undertaken in 2008. Nor has the petitioner provided 
evidence that any of its claimed projects have actually been accepted by the parties to which they have made 
proposals or tenders. Any responsibility the beneficiary has for negotiating agreements and partnerships has 
not been shown to be ongoing or a significant portion of his day-to-day duties as president of the petitioning 
company. 
The AAO acknowledges that the petitioner has submitted a more detailed description of the beneficiary's 
duties on appeal. The petitioner was put on notice of required evidence and given a reasonable opportunity to 
provide it for the record before the visa petition was adjudicated. The petitioner failed to submit the requested 
evidence and now submits it on appeal. However, the AAO need not consider this evidence for any purpose. 
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BLA 1988). 
Regardless, the newly-submitted position description contains many of the vaguely described duties that were 
previously provided and already found to be insufficient to establish the exact nature of the beneficiary's day- 
to-day duties. The petitioner now indicates that the beneficiary devotes a total of 25 percent of his time to 
"coordinating activities of rental personnel" in connection with the 300 Washington Street property and 
"coordinating activities of construction crews and contractor personnel" in connection with the Bamako 
development projects. However, as noted above, the petitioner's actual involvement in the Washington Street 
project has not been established through documentary evidence, nor is there sufficient evidence that the 
Bamako road construction projects are actually underway and under the petitioner's responsibility. All 
projects appeared to be at the project or proposal stage at the time of filing and no additional evidence has 
been submitted to suggest that anything has changed in this regard. Again, going on record without supporting 
EAC 08 196 5 1459 
Page 11 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter ofSoflci, 22 I&N Dec. at 165. 
Overall, the petitioner's descriptions of the beneficiary's duties do not adequately articulate the specific duties 
he performs on a day-to-day basis as president of the petitioning company, such that they could be classified 
as managerial or executive in nature. 
The petitioner's primarily claim on appeal is that the beneficiary qualifies as a function manager because he is 
responsible for negotiating and executing terms of agreements with outside entities. Counsel asserts that the 
negotiation of such agreements is the primary and essential function of the petitioning company. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 1(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a detailed job description that explains duties to be performed in 
managing the essential function, i.e. identifies the function with specificity, articulates the essential nature of 
the function, and establishes the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. 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 10 1 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology Int 'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
Here, counsel indicates that the beneficiary both performs and manages an essential function of the 
petitioning company by negotiating agreements with outside entities. The petitioner indicates that he devotes 
30 percent of his time to these duties. Therefore, even if the AAO were to find that he manages an essential 
function, it could not be concluded that these are his primary duties. As discussed above, the petitioner has 
not described the beneficiary's duties in sufficient detail to establish that he performs primarily managerial 
duties, nor does the evidence of record support a finding that he spends the majority of his time managing the 
negotiation of agreements for the petitioning company. As noted, the evidence submitted concerning the 
petitioner's claimed projects, absent additional explanation, suggests that the beneficiary has been acting 
separate and apart from the petitioning company in several negotiations. Furthermore, there is no evidence 
that such negotiations are ongoing or a regular part of his day-to-day responsibilities. 
The petitioner has also submitted inconsistent information regarding the number of employees working for 
the petitioning company. Although the petitioner repeatedly claimed to have four employees, the evidence 
submitted shows that two of these employees were terminated more than one year prior to the filing of the 
petition. On appeal, counsel concedes that the petitioner has only two paid employees, but provides no clear 
explanation as to why the petitioner claimed four salaried employees at the time the petitioner responded to 
the RFE. 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 
EAC 08 196 5 1459 
Page 12 
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. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family Inc. v. US. Citizenship and Immigration 
Services 469 F. 3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 
175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
At the time of filing, the petitioner employed the beneficiary as president and an employee identified as a 
project scout and coordinator. The petitioner has not adequately explained how the company's one 
subordinate employee relieves the beneficiary from having to perform non-managerial duties associated with 
the operation of the business. Regardless, the reasonable needs of the petitioner serve only as a factor in 
evaluating the lack of staff in the context of reviewing the claimed managerial or executive duties. The 
petitioner must still establish that the beneficiary is to be employed in the United States in a primarily 
managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) of the Act. As discussed above, 
the petitioner has not established this essential element of eligibility. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a primarily managerial or executive capacity under the extended petition. Accordingly, the appeal will be 
dismissed. 
The remaining issue addressed by the director is whether the petitioner is maintaining sufficient physical 
premises to operate the U.S. company. The regulations governing new office petitions at 8 C.F.R. 5 
2 14.2(1)(3)(v)(A) require the petitioner to provide evidence that the company has sufficient physical premises 
to house the new office. Although the instant petition is not filed under the new office regulations, it is an 
extension of a petition that originally involved the establishment of a new office in the United States. Further, 
it is reasonable to expect any such business to continue to maintain an office or other premises for the 
operation of the business for the duration of any approved L-1 petitions. 
At the time of filing, the petitioner provided its attorney's post office box as its mailing address on Form 1-129 
and indicated that the beneficiary would be working at this address. The petitioner's company letterhead, as of 
- - 
July 2008, identified the company's address as - in Valley Stream, New 
York. The petitioner indicated the same address, but a different suite number M, on its Forms 1120 
for 2006 and 2007, and the beneficiary's residential address appears on the petitioner's Forms 941. 
EAC 08 196 51459 
Page 13 
In the RFE issued on July 17, 2008, the director instructed the petitioner to submit documentary evidence to 
show that it has leased premises of sufficient size to house the office. The director stated that such evidence 
should include original lease agreements, a statement from the lessor identifying the square footage of the 
premises, and the lessor's telephone number. The director also requested photographs of the interior and 
exterior of all premises secured. 
In response, the petitioner submitted a lease agreement for the premises located at - 
in Valley Stream, New York. The lease was valid from October 1, 2005 until September 30, 2007. 
The petitioner did not submit the lessor's contact information or a statement identifying the square footage of 
the leased premises. The petitioner submitted four photographs of an office suite which appears to have a 
reception area and multiple offices, but did not submit photographs of the exterior of the premises or identify 
the two persons who appear in the photographs. 
In denying the petition, the director noted that the submitted lease was expired and that the submitted 
photographs do not clearly show the operation of the petitioner's business. 
On appeal, counsel asserts that the previously submitted photographs accurately depict the space leased by the 
petitioning company. The petitioner submits a copy of a sublease agreement and a floor plan, which counsel 
notes were inadvertently omitted previously. 
The sublease agreement is between the petitioner and "LJK Management" as sublessor, for the premises 
located at 
 in Valley Stream, New York. The sublease was entered into on 
October 1, 2007. The AAO notes that the evidence in the record indicates that this location is also the 
physical address of counsel's office. The petitioner does not submit a copy of the master lease agreement for 
the premises or evidence that the landlord granted consent for the sublease. The petitioner provided a 2nd floor 
plan for the office building which shows six offices, a kitchen and an open area. Two offices have been 
highlighted, although it is not evident that these two offices comprise " 
Upon review, the petitioner has not established that it is leasing sufficient premises to house the office. The 
AAO agrees with the director's determination that the photographs provided are inconclusive and do not 
clearly show the operation of the petitioner's business. The ex ired lease agreement is not probative evidence, 
although the AAO notes that the petitioner continues to use I)" on its letterhead nine months after the 
lease expired. The sublease and floor plan submitted on appeal are not sufficient without a copy of the master 
lease and evidence that consent has been granted by the landlord. Moreover, the evidence in the record 
indicates that counsel continues to occupy the premises that were ostensibly subleased to the petitioner, 
although such premises do not clearly comprise more than one office. 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 Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The petitioner has not submitted additional evidence on appeal to overcome the director's determination. For 
this additional reason, the appeal will be dismissed. 
EAC 08 196 5 1459 
Page 14 
Beyond the decision of the director, the evidence of record does not establish that the petitioner has been and 
will be doing business as defined in the regulations. Pursuant to 8 C.F.R. 214.2(1)(1)(ii)(H), "doing business" 
means the regular, systematic and continuous provision of goods andlor 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." 
As noted above, the petitioner did not report any income in 2006 or 2007 except for minimal interest income, 
and there is insufficient evidence of any business activities engaged in by the company in 2008. Many of the 
petitioner's claimed projects include speculative partnerships which may or may not ever come to fruition, and 
several of these do not clearly involve the petitioning company. The AAO acknowledges that due to the 
nature of the business, the petitioner will reasonably have fewer business transactions, as well as projects 
which take time to develop. However, there is no evidence that the company has had any proposal, bid or 
tender accepted since its formation. In addition, as discussed above, much of the project documentation 
submitted does not clearly identify the petitioner's role in the projects. At a minimum, it is reasonable to 
expect the petitioner to provide evidence that it has continued to be involved in locating and bidding on 
projects as of the date of filing the petition. 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. Based on the lack of evidence in the record, the AAO is not persuaded that the beneficiary is 
doing business as defined in the regulations. For this additional reason, the appeal will be dismissed. 
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. 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 Transp., NTSB, 925 
F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal 
courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cii 1989). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if he or she shows that the AAO abused its discretion 
with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. 
Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003). 
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. 
ORDER: The appeal is dismissed.