dismissed L-1A Case: Real Estate Investment And Retail

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
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File: EAC 08 156 52741 
 Office: VERMONT SERVICE CENTER 
 Date: JUN 1 2 2009 
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 10 l(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. !j 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. !j 103.5(a)(l)(i). 
cf=- Acting F. Chief, Grissom Administrative Appeals Office 
, EAC 08 156 52741 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa 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 employment of its president 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. § 1101(a)(15)(L). The petitioner, a Georgia corporation, states that it is engaged in 
investment in commercial real estate and retail/wholesale outlets. It claims to be an affiliate of Sonal 
Garments, located in Mumbai, India. The beneficiary was previously granted L-1A classification for a period 
of one year in order to open a new office in the United States and the petitioner now seeks to extend her status 
for two 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 under the extended petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
inappropriately based his determination on the size and nature of the petitioner's business, rather than on the 
beneficiary's actual job duties. Counsel contends that the petitioner submitted sufficient evidence to establish 
that the beneficiary's duties are primarily managerial in nature. 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 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. 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 08 156 52741 
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 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. 
The regulation at 8 C.F.R. fj 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 extendedpetition; 
(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 mariagerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 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 
. EAC 08 156 52741 
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. § 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. 
The petitioner filed the nonimmigrant visa petition on May 8,2008. In a letter dated April 14,2008, the petitioner 
described the beneficiary's duties as company president as follows: 
[The beneficiary] is in charge of all administrative operations and management of the company. 
She has assumed overall responsibility of purchasing the goods, expanding the company's 
product lines and distribution channels. She enters into contracts on behalf of the company's 
advantage. She enters into contracts on behalf of the company with suppliers and wholesalers as 
well as with banks. She supervises sales personnel, establishes new business contracts, negotiates 
with corporate clients and purchasers, and administers new and existing business contracts. 
Through her education and experience [the beneficiary] has gained knowledge and experience 
regarding: examination of performance requirements, delivery schedules, and estimation of costs 
of materials and production as well as ensuring completeness and accuracy, prepares bids, tests 
and prepares progress reports, reviews bids for conformity to contract requirements, plans and 
directs sales programs to promote new markets, and improve fast and efficient customer service. 
She also has exclusive authority of hiring, firing and promoting employees. 
. . . . Her duties include supervision of all financial and marketing operations for the 
company, as well as entering into contracts, over which she is exercising complete 
discretionary authority. She is in charge of training marketing representatives to procure 
orders and improve their performance. Negotiate contracts with banks and clients; requests 
and approves amendments and or extensions to contracts. She is responsible to direct 
activities of personnel in sale accounting, inventory, record keeping, receiving and shipping 
operations to implement fulfillment of contracts. Ultimately, it will be her responsibility to 
expand [the petitioner] on a sound footing. She recruits and trains the staff and have [sic] 
EAC 08 156 52741 
Page 5 
hiring and firing authority over them. Since transferring on the L-lA, she has successfully 
negotiated business acquisitions and entered into contractual obligations on behalf of the 
company with vendors and distributors. 
The petitioner indicated that the company purchased a gas station and convenience store in October 2007 and 
entered a management agreement to manage a second store as of February 2008. The petitioner stated that it 
had five employees at the time of filing and projected that its staff size would grow to ten employees by the 
end of 2008. 
The petitioner submitted copies of its payroll register for both stores for the months of January and February 
2008. According to the records, the Amoco gas station managed by the petitioner has three salaried 
employees, two who earn $240 weekly and one who earns a bi-weekly salary of $1,500. The AAO notes that 
the petitioner signed a management agreement with the owner of this business on February 1, 2008. The 
petitioner did not explain why the petitioner was responsible for paying employees to operate this store prior 
to that date. 
According to the payroll records for January and February 2008, the Chevron gas station that is owned and 
operated by the petitioner paid five workers, including the beneficiary, during this period. One employee 
works 30 hours each week at a wage of $7.00 per hour, while the other three employees have variable part- 
time hours at wages ranging from $6.25 to $8.00 per hour. 
The director issued a request for additional evidence (RFE) on May 21, 2008, in which he requested an 
organizational chart for the U.S. entity and additional evidence regarding the company's management and 
personnel structure. Specifically, the director requested information regarding the number of subordinate 
supervisors managed by the beneficiary, the job titles and job duties of all company employees, and the 
amount of time the beneficiary allots to managerial or executive duties. The director further instructed the 
petitioner to submit evidence to establish that the duties the beneficiary will perform if the petition is 
extended. 
In a response dated July 1, 2008, the petitioner stated that the beneficiary will perform the following duties 
under the extended petition: 
Financial Management: Her duties include supervision of the financial operations for 
the company. She is responsible for major decision making for petitioner relating to 
financing, general administration, expansion and direction of the company. She with the 
General Manager hires, fire and review performance of employees (primarily managers). 
Management Decisions: possesses all rights to execute all the managerial decisions of 
the Company; assess General Manager's performance and assist with management 
issues; 
Company Representation: acts in the name of the company in all kinds of business 
contacts and relations; 
EAC 08 156 52741 
Page 6 
Has total managerial, discretionary and executive authority over the company and all of 
its activities and employees without limitation. 
Directs and formulate[s] financial strategy to provide funding in developing and 
continuing the operations to maximize returns on investments; set sales and product cost 
targets for managers and monitor progress; 
Supervision of the company's operations; oversee standards regarding goods and 
customer satisfaction policy; 
Organizational Development: projects the Company's future development and executes 
steps to accomplish the desired growth; plan business strategy and business investments. 
The petitioner further indicated the beneficiary's time would be allocated as follows: 
1) Time spent on Management Decisions 25% 
2) Time for Organizational Development 20% 
3) Supervising day to day operations 10% 
4) Financial Representations 20% 
5) Representing the company 15% 
6) Negotiating Business deals 10% 
The petitioner also described the staffing structure of both stores operated by the company. The petitioner stated 
that the North Fork Chevron location employs a general manager, a deli manager, a sales clerk and a cashier, 
while the Amoco station employs a store manager, a sales clerk and a cashier. The petitioner indicated that the 
general manager, is responsible for "overall administration of the business from marketing, 
purchases, financial matters, advertising hiring and training of employees." The petitioner further indicated that 
"plans, develops and establishes policies and objectives of business organization"; "coordinate[s] 
functions and operations between stores"; and "directs and coordinates formulation of financial programs to 
provide funding for new or continuing operations to maximize return on investments." The petitioner stated that 
the genera1 manager "over looks both stores." The petitioner indicated that the store manager reports to the 
general manager and is responsible for supervising cashiers, over stocks and day-to-day running of the business, 
as well as customer relations. Finally, the petitioner indicated that it employs an accountant on an outsourced 
basis. 
The director denied the petition on July 17, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. In 
denying the petition, the director observed that the petitioner's description of the beneficiary's duties submitted in 
response to the RFE was vague and therefore insufficient to establish that the beneficiary performs primarily 
managerial or executive duties. 
.EAC 08 156 52741 
Page 7 
The director noted that although the petitioner indicates that it is operating an investment business, the employees 
do not perform duties associated with the investment function. The director noted that it appears that the 
beneficiary will in fact be directly involved in operating the convenience stores, with responsibility for first-line 
supervision of non-professional personnel. 
On appeal, counsel for the petitioner asserts that the director erred in concluding that the beneficiary will not be 
employed in a primarily managerial or executive capacity and instead focused on the fact at the beneficiary is 
managing a small business. Counsel asserts that the director was "incorrect in making a presumption that 'she 
will be engaged in non-managerial duties' when its basis for this conclusion stems from the size and nature of the 
company." 
Counsel reiterates a portion of the position description included in the petitioner's letter dated April 14, 2008 and 
asserts that such duties are managerial in nature in light of the type of business the petitioner operates. Counsel 
asserts that the beneficiary "employs enough people to operate her outlets and prevent her from having to perform 
the non-qualifying day-to-day duties of a non-manager." 
Upon review, and for the reasons stated herein, the AAO concurs with the director's determination that the 
petitioner failed to establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
Although the appeal will be dismissed, the AAO notes that the director based his decision, in part, on an 
improper standard. The director should not hold a petitioner to his undefined and unsupported view of what 
duties the beneficiary could be "presumed" to perform in light of the size and nature of the petitioner's 
business. The director should instead focus on applying the statute and regulations to the facts presented by 
the record of proceeding. Although U.S. Citizenship and Immigration Services (USCIS) must consider the 
reasonable needs of the petitioning business if staffing levels are considered as a factor, the director must 
articulate some rational basis for finding a petitioner's staff or structure to be unreasonable. See section 
lOl(a)(44)(C) of the Act, 8 U.S.C. 5 1 101(a)(44)(C). The fact that a petitioner is a small business or engaged 
in a particular industry will not preclude the beneficiary from qualifying for classification as an intracompany 
transferee. 
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. 
In this matter, the petitioner has 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 initially 
stated that the beneficiary is responsible for "supervising sales personnel," "negotiating with corporate clients 
and purchasers," "examining costs of materials and production," preparing bids, testing and preparing 
progress reports," as well as "training marketing representatives to procure orders," and directing activities of 
"personnel in sale accounting, inventory, record keeping, receiving and shipping operations to ensure 
fulfillment of contracts." In light of the petitioner's descriptions of its business and organizational structure, 
these duties are not credible. The petitioner does not employ marketing representatives, sales, inventory, 
.EAC 08 156 52741 
Page 8 
record keeping or shipping and receiving personnel. It does not purchase materials or engage in production 
activities, nor is there any evidence that the business deals with corporate clients or purchasers, or any type of 
bidding processes. The company's clients are retail customers and its staff is comprised of retail store cashiers 
and their supervisors. 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). 
Furthermore, the petitioner's initial description of the beneficiary's duties indicates that she is responsible for 
"all administrative operations," as well as purchasing the goods sold in the petitioner's stores, duties which do 
not fall under the definitions of managerial or executive capacity. 
In response to the RFE, the petitioner provided an almost entirely different description of the beneficiary's 
duties. The duties described in the petitioner's response are even more generalized and provided little insight 
into what tasks the beneficiary actually carries out on a day-to-day basis. For example, the petitioner indicates 
that the beneficiary's responsibilities include supervision of financial operations, executing "all managerial 
decisions," having "total managerial and executive authority over the company and all of its activities," and 
"supervision of the company's operations." The petitioner further indicated that the beneficiary devotes 20% 
of her time to "organizational development," but did not provide any details as to how she carries out 
"organizational development" on a day-to-day basis. The petitioner indicated that the beneficiary spends 10% 
of his time supervising "day-to-day operations," but again provided no explanation regarding his specific 
tasks beyond this general statement. The petitioner indicated that the remaining 70% of the beneficiary's time 
will be spent, collectively, on "representing the company," "financial representations," "management 
decisions," and "negotiating business deals." 
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 proposed activities in the course of her 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. Therefore, the beneficiary's "control," management or direction over a company cannot be 
assumed or considered "inherent" to her position merely on the basis of the beneficiary's job title, placement 
on a general organizational chart or broadly-cast business responsibilities. 
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 definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 199 1 WL 
144470 (9th Cir. July 30, 1991). While it appears that the beneficiary exercises the requisite authority over the 
U.S. company as its president and shareholder, the conflicting and vague position descriptions provided fall 
significantly short of establishing that the beneficiary's primary duties are managerial or executive in nature. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and those of his or her subordinate employees, the 
.EAC 08 156 52741 
Page 9 
nature of the petitioner's business, the employment and remuneration of employees, and any other facts 
contributing to a complete understanding of a beneficiary's actual role in a business. The evidence must 
substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement in an 
organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not 
probative and will not establish that an organization is sufficiently complex to support an executive or 
manager position. An individual whose primary duties are those of a first-line supervisor will not be 
considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the 
employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
The regulation at 8 C.F.R. fj 214.2(1)(14)(ii)(D) requires the petitioner to submit 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. As noted above, at the time of filing the petition in May 2008, the 
petitioner stated that it employed five workers. The petitioner did not provide its most recent payroll records, 
but did provide records showing that the company employed seven employees as of February 2008. The 
petitioner claimed to employ these same seven employees in July 2008 when it responded to the RFE. Given 
the petitioner's stated number of employees as of the date of filing, it is reasonable to believe that two 
employees left the company subsequent to February 2008. Otherwise, the petitioner is obligated to clarify the 
inconsistent and conflicting testimony by independent and objective evidence. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). Furthermore, according to the petitioner's payroll records, the company was paying 
the workers of the Amoco gas station in January 2008, notwithstanding the fact that the petitioner signed a 
management agreement with the owner of this station on February 1, 2008. Id. Given these unresolved 
discrepancies, the petitioner has not clearly established its staffing levels as of the date the petition was filed. 
Nevertheless, the AAO notes that the petitioner claims to employ two managers who are subordinate to the 
beneficiary, a general manager and a store manager. The store manager, according to the limited evidence in 
the record, has been working only 30 hours per week, and supervises two sales clerks and cashiers, who may 
or may not work full-time hours. Contrary to the petitioner's claims, it has not been established that a part- 
time store manager and two cashiers are sufficient to perform all non-managerial duties associated with 
operating a gas station and convenience store. This type of business is typically open significantly longer than 
40 hours per week, and it is not unusual for such a business to be open for at least 12-14 hours daily. 
The claimed staffing of the second business is similar and includes one general manager, one deli manager, 
and two clerks/cashiers. Again, the petitioner has not established how one deli manager will handle all food 
operations at the store during all of its operating hours, or that the two cashiers work sufficient hours to staff 
the store's operating hours. The petitioner's description of the general manager's duties essentially overlaps 
with the beneficiary's job description and largely paraphrases the statutory definition of executive capacity. 
Therefore, a review of the totality of the record does not support a conclusion that the beneficiary's claimed 
subordinates are supervisors, managers, or professionals. An employee will not be considered to be a 
supervisor simply because of a job title, because he or she is arbitrarily placed on an organizational chart in a 
position superior to another employee, or even because he or she supervises daily work activities and 
assignments. Rather, the employee must be shown to possess some significant degree of control or authority 
over the employment of subordinates. Here, it is reasonable to conclude that the beneficiary's "managerial" 
.EAC 08 156 52741 
Page 10 
subordinate employees will all primarily perform the tasks necessary to the operation of the business. See 
generally Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3 d 13 13 (9th Cir. 2006). Even 
assuming arguendo that the petitioner had submitted sufficient documentation of its staffing levels, the 
petitioner has not provided evidence of an organizational structure sufficient to elevate the beneficiary to a 
supervisory position that is higher than a first-line supervisor of non-professional employees. Pursuant to 
section lOl(a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial under 
the statutory definitions. 
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 1 (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 written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish 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. The petitioner has not claimed that the beneficiary will be primarily managing an 
essential function of the petitioning company, other than noting that she is responsible for "all company 
functions." As discussed above, the petitioner has not submitted consistent, detailed or credible job 
descriptions sufficient to establish the beneficiary's employment as a function manager. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 5 10 l(a)(44)(C) of the Act, 8 U.S.C. 5 1 101(a)(44)(C). However, 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. 200 1). The size of a company may be especially 
relevant when USCIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
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, 13 16 (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, in the present matter, the regulations provide strict evidentiary requirements for the extension of 
a "new office" petition and require USCIS to examine the organizational structure and staffing levels of the 
petitioner. See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the "new 
office" operation one year within the date of approval of the petition to support an executive or managerial 
position. There is no provision in USCIS regulations that allows for an extension of this one-year period. If 
EAC 08 156 52741 
Page 11 
the business does not have sufficient staffing after one year to relieve the beneficiary from primarily 
performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. 
As discussed above, the petitioner initially indicated that the beneficiary herself is responsible for purchasing 
goods for the petitioner's stores and for administrative tasks, duties which are not managerial or executive in 
nature. The petitioner has not established through the submission of evidence of wages paid to employees the 
actual number of employees working for the company at the time of filing. Regardless of whether the 
petitioner employed five or seven employees as of May 2008, it is not evident how these employees would 
relieve the beneficiary from participating in the day-to-day operations of the company's two convenience 
stores. Collectively, this brings into question how much of the beneficiary's time can actually be devoted to 
managerial or executive duties. As stated in the statute, the beneficiary must be primarily performing duties 
that are managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Furthermore, the petitioner 
bears the burden of documenting what portion of the beneficiary's duties will be managerial or executive and 
what proportion will be non-managerial or non-executive. Republic of Transkei v. INS, 923 F.2d 175, 177 
(D.C. Cir. 1991). The record does not demonstrate that the beneficiary will function primarily as a manager 
or executive under the extended petition. 
The petitioner indicates on appeal that the petitioner has hired additional employees and intends to open 
additional retail locations in the future. However, the petitioner must establish eligibility at the time of filing 
the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
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.