dismissed L-1A Case: Renovation Services

U.S. Department of Homeland Security 
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 U.S. Citizenship and Immigration Senices 
Office of Administrative Appeals 
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 Washington, DC 20529-2090 
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 U. S. Citizenship 
PTuBLIC COPY and Immigration 
File: WAC 08 070 5121 3 Office: CALIFORNIA SERVICE CENTER Date: APR 2 2 2009 
Petition: 
 Petition for a Nonirnrnigrant Worker Pursuant to Section 10 1 (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 firther inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 
103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
5 103S(a)(l)(i). 
%kW 
John F. Grissom 
Acting Chief, Administrative Appeals Office 
WAC 08 070 51213 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss 
the appeal. 
The petitioner filed this nonirnmigrant petition seeking to employ the beneficiary in the position of 
"manager/owner" to open a new office in the United States as an L-1A nonimmigrant intracompany 
transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 
1101(a)(15)(L). The petitioner, a corporation formed under the laws of the State of California, claims it 
"will provide high quality renovation services for commercial and residential customers." 
The director denied the petition concluding that the petitioner failed to establish (1) that the beneficiary 
was employed abroad in a primarily managerial or executive capacity; (2) that the foreign entity is able to 
remunerate the beneficiary and commence doing business in the United States; or (3) that the petitioner 
and the foreign entity are qualifying organizations. 
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 record establishes that 
the beneficiary primarily performed managerial and executive duties abroad, that the foreign entity can 
remunerate the beneficiary, and that the petitioner and the foreign entity are qualifylng organizations. In 
support, counsel submits a brief. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed 
the beneficiary in a qualifylng 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 (l)(l)(ii)(G) of this 
section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services 
to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of hll-time employment 
abroad with a qualifying organization within the three years preceding the filing 
of the petition. 
WAC08 07051213 
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 hirnlher 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. 
In addition, the regulation at 8 C.F.R. !j 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 (l)(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. 
The first issue is whether the petitioner has established that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. !j 1 10 1 (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; 
WAC 08 070 51213 
Page 4 
(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. !j 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. 
The petitioner does not clarify in the initial petition whether the beneficiary primarily performed 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 
101(a)(44)(B) of the Act. A petitioner may not claim that a beneficiary was employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. Given the lack of 
clarity, the AAO will assume that the petitioner is asserting that the beneficiary was employed in either a 
managerial or an executive capacity and will consider both classifications. 
Counsel to the petitioner described the beneficiary's duties abroad as "marketing manager" in a letter 
dated January 2, 2008 as follows: 
[The beneficiary] was responsible for overseeing the sales department and for introducing 
new dental product lines based on researched [sic] performed for advanced dental quality 
products. He supervised sales agent and product distribution. He effectively established 
good relations with dealers and customers. He introduced new product lines and 
developed marketing strategies. 
The petitioner further described the beneficiary's duties abroad in job description appended to the petition 
as follows: 
[The beneficiary's position was a] position that includerd] being in charge of the 
WAC 08 070 51213 
Page 5 
company's sales agents and distribution, daily interaction with dealers and buyers, as well 
as being in charge of goods received at the company warehouse. [The beneficiary] was 
also involved in the decision making process as far as new products that were picked and 
introduced into the company products [sic] lines. 
The petitioner also submitted an organizational chart for the foreign entity. 
 The chart shows the 
beneficiary supervising two "sales agents'' and a "delivery & warehouse" worker. The chart also indicates 
that the individuals supervised by the beneficiary have earned "high school diplomas." 
On January 15, 2008, the director requested additional evidence. The director requested, inter alia, job 
descriptions of all employees under the beneficiary's supervision and a more detailed description of the 
beneficiary's duties abroad, including a breakdown of the percentage of time devoted to each ascribed 
duty. 
In response, the petitioner did not submit any evidence responsive to the director's Request for Evidence. 
The petitioner submitted an organizational chart and a list of employees identical to the chart and list 
submitted with the initial petition. The petitioner did not mher describe the beneficiary's duties abroad 
or the duties of his claimed subordinates. 
On April 22, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was employed abroad primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the record establishes that the beneficiary primarily performed managerial 
or executive duties abroad. 
Upon review, counsel's assertions are not persuasive. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $8 214.2(1)(3)(ii) and (iv). The petitioner's 
description of the job duties must clearly describe the duties performed by the beneficiary and indicate 
whether such duties were either in an executive or managerial capacity. Id. A petitioner cannot claim 
that some of the duties of the position entailed executive responsibilities, while other duties were 
managerial. Again, a petitioner may not claim that a beneficiary was employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the 
beneficiary acted in a "managerial" or "executive" capacity. In support of the petition, the petitioner has 
submitted a vague and non-specific job description which fails to sufficiently describe what the 
beneficiary did on a day-to-day basis. For example, the petitioner states that the beneficiary introduced 
new dental product lines, established good relations through "daily interaction" with customers and 
dealers, developed marketing strategies, and "was also involved" in choosing new products. The 
petitioner also claims that the beneficiary oversaw two sales agents and a warehouse worker in 
performing his sales and warehousing duties. However, the petitioner fails to explain what, exactly, the 
beneficiary did to introduce product lines or to choose new products. The petitioner also failed to 
WAC 08 070 51213 
Page 6 
specifically describe the marketing strategies developed or to explain what the beneficiary did to 
"oversee" his subordinates other than to act as a first-line supervisor of non-professional workers. 
Moreover, the petitioner did not provide a breakdown of the percentage of time devoted to each of the 
beneficiary's ascribed duties, even though this evidence was specifically requested by the director in the 
Request for Evidence. Failure to submit requested evidence that precludes a material line of inquiry shall 
be grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). The fact that the petitioner has given the 
beneficiary a managerial or executive title and has prepared a vague job description which includes 
inflated job duties, yet omits requested evidence, does not establish that the beneficiary actually 
performed managerial or executive duties. Specifics are clearly an important indication of whether a 
beneficiary's duties were primarily executive or managerial in nature; otherwise meeting the definitions 
would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 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 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary primarily performed 
qualifying duties abroad. To the contrary, it appears that the beneficiary devoted most of his time to 
performing non-qualifymg operational, administrative, sales, marketing, and first-line supervisory tasks, 
e.g., meeting with customers, marketing products, and supervising three non-professional, non- 
supervisory subordinates (see infra). Absent evidence to the contrary, these tasks are not qualifying 
managerial or executive duties. Furthermore, the record does not establish that any subordinate workers 
relieved the beneficiary of the need to perform these non-qualifying tasks. Although the petitioner claims 
the beneficiary supervised workers, the record does not establish that these workers performed the non- 
qualifying tasks inherent to the sales and marketing duties ascribed to the beneficiary, thus freeing him to 
primarily perform qualifying duties. Once again, failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2@)(14). Instead, it 
appears that these subordinate workers performed sales, marketing, and warehousing tasks in conjunction 
with the beneficiary's simultaneous performance of similar non-qualifying tasks. Finally, absent 
descriptions of the duties ascribed to the beneficiary's claimed subordinate workers, as was also requested 
by the director, it is impossible to discern whether the beneficiary was relieved of the need to primarily 
perform non-qualifymg tasks. See id. Accordingly, it appears more likely than not that the beneficiary 
primarily performed non-qualifymg administrative, operational, sales, marketing, and first-line 
supervisory tasks in his position abroad. 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 International, 19 
I&N Dec. 593,604 (Comm. 1988). 
The petitioner also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees, or managed an essential function of the organization. 
As claimed in the record, the beneficiary directly supervised three subordinate workers abroad, including 
two sales agents and a warehouse worker. However, the record is not persuasive in establishing that any 
of the subordinates was a supervisory or managerial employee. The organizational chart does not indicate 
that any of these workers had supervisory authority over other workers. Furthermore, as the petitioner 
WAC08 070 51213 
Page 7 
failed to provide job descriptions for the subordinate workers, it cannot be discerned whether any of these 
workers was employed in a managerial or supervisory capacity. Once again, failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 
103.2(b)(14). Accordingly, it appears that the beneficiary was, at most, a first-line supervisory of non- 
professional employees. 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. 
Also, as the petitioner failed to describe the skills or education necessary to perform the duties of the 
subordinate positions, the record does not establish that the beneficiary supervised professionals. In fact, 
as the organizational chart indicates that the subordinate workers have earned only high school diplomas, 
it does not appear as if these workers were professionals.' Therefore, the petitioner has not established 
that the beneficiary was employed primarily in a managerial capacity.2 
1 
In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether 
the subordinate positions required a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 101 (a)(32) of the Act, 8 U.S.C. § 1 101(a)(32), states that "[tlhe term profession shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." The term "profession" 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by a 
prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic 
prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 
1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
While the petitioner has not argued that the beneficiary managed an essential function of the 
organization, the record nevertheless would not support this position even if taken. The term "function 
manager1' 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 101(a)(44)(A)(ii) of the Act. 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. 8s 214.2(1)(3)(ii) and (iv). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary managed the function rather than performed the tasks related 
to the function. In this matter, the petitioner has not provided evidence that the beneficiary managed an 
essential function. The petitioner's vague job description fails to document that the beneficiary's duties 
were primarily managerial. Also, as explained above, the record indicates that the beneficiary was more 
likely than not primarily a first-line supervisor of non-professional workers andlor a performer of non- 
qualifying tasks. Absent a clear and credible breakdown of the time spent by the beneficiary performing 
his duties, the AAO cannot determine what proportion of his duties were managerial, if any, nor can it 
deduce whether the beneficiary was primarily performing the duties of a function manager. See IKEA US, 
Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
WAC 08 070 51213 
Page 8 
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or hctions of the organization, and that 
person's authority to direct the organization. Section lOl(a)(44)(B) of the Act. Under the statute, a 
beneficiary must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of employees for 
the beneficiary to direct, and the beneficiary must primarily focus on the broad goals and policies of the 
organization rather than the day-to-day operations of the enterprise. An individual will not be deemed an 
executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. For the same reasons 
indicated above, the petitioner has failed to establish that the beneficiary acted primarily in an executive 
capacity. The beneficiary's job description is so vague that it cannot be discerned what, exactly, the 
beneficiary did on a day-to-day basis. As explained above, it appears more likely than not that the 
beneficiary was at most primarily employed as a first-line supervisor and performed the tasks necessary to 
produce a product or to provide a service. Therefore, the petitioner has not established that the 
beneficiary was employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees an employer has, federal courts have generally 
agreed that U.S. Citizenship and Immigration Services (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 131 3, 1316 (9~ 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). 
Accordingly, the petitioner has failed to establish that the beneficiary primarily performed managerial or 
executive duties abroad, and the petition may not be approved for that reason. 
The second issue in this proceeding is whether the petitioner has established that the intended United 
States operation, within one year of the approval of the petition, will support an executive or managerial 
position. Specifically, the issue is whether the petitioning organization is able to remunerate the 
beneficiary and to commence doing business in the United States. 8 C.F.R. $ 214.2(1)(3)(v)(C)(2). 
In this matter, the petitioner claims in the Form 1-129 that the beneficiary will be paid an annual salary of 
$50,000.00. Counsel described the "capitalization" of the United States operation in a letter dated January 
2, 2008 as follows: 
WAC08 07051213 
Page 9 
Since before the incorporation of the Ipetitioner], the parent company in Israel planned on 
providing sufficient capital to start the U.S. operation. However, the U.S. Corporation 
has been so successful that it has been unnecessary for the parent corporation to provide 
much funds to the U.S. subsidiary. Already the bank statement indicates funds of 
[$3 1,555.001 [citation omitted]. For a company, the capitalization is thus far adequate as 
the only expenses the U.S. Corporation has includes the leasehold, utilities, insurance, 
marketing, and wages. [The beneficiary] is remunerated largely by [the foreign entity] 
for his living and travel expenses. 
In support, the petitioner submitted bank documents which indicate that, as of November 29, 2007, the 
petitioner's checking account had an available balance of $21,189.72. While it appears that the 
petitioner's initial $1,000.00 investment originated with the beneficiary, the exact source of the remaining 
funds has not been established. The record also does not contain any current financial records pertaining 
to the foreign entity. The foreign financial statement submitted by the petitioner is dated December 31, 
2005. The instant petition was filed on January 10,2008. 
The petitioner also submitted a lease for its premises in the United States. The lease indicates that the 
petitioner has agreed to pay $400.00 per month for "office-warehouse" space. Otherwise, the record is 
devoid of projections pertaining to the United States operation's first year expenses, e.g., utilities, 
insurance, marketing, wages for proposed subordinate workers, and cost of supplies for its "renovation 
services. " 
Finally, the petitioner submitted a resolution dated October 24, 2007 in which it is claimed that the 
foreign employer, the purported majority owner of the petitioner's stock, has not invested any money in 
the United States enterprise. 
On January 15, 2008, the director requested additional evidence. The director requested, inter alia, a 
business plan, which includes projections for business expenses, sales, gross income, and profits and 
losses; copies of bank statements; a detailed description of all start-up costs; evidence of the amount of 
investment actually committed by the foreign entity; and an explanation of how the foreign entity can pay 
the beneficiary's salary and commence doing business in the United States. 
In response, the foreign entity submitted a letter dated April 3,2008 in which it claims that the petitioner 
"has enough funds in the bank for the foreign company to provide for [the petitioner's] capital growth and 
reserves." 
The petitioner also submitted the foreign entity's 2005 income tax data. The petitioner did not submit 
financial data for the foreign entity from 2006, 2007, or 2008. The instant petition was filed on January 
10,2008. 
Finally, the petitioner submitted a "business plan" for the United States operation. This document 
projects $530,000.00 in sales in 2008 and claims that the petitioner will receive a total of $65,000.00 in 
"new investment." The plan also claims that the petitioner currently has $60,000.00 in cash and projects 
first year rentlutility expenses of $14,400.00, other salary expenses of $91,250.00, and sales and 
WAC 08 070 51213 
Page 10 
marketing expenses of $142,200.00. However, the plan fails to substantiate any of these claims with 
evidence. The record is devoid of evidence addressing the source of these sales or explaining how, 
exactly, this projected sum was established. The record also fails to address the source or existence of its 
current assets or the expected "investment." 
On April 22, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the petitioning organization is able to remunerate the beneficiary and commence doing 
business in the United States. 
On appeal, counsel asserts that the foreign entity's tax information establishes that it can remunerate the 
beneficiary and commence doing business in the United States. 
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. 5 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic expectation that the 
enterprise will succeed and rapidly expand as it moves away from the developmental stage to full 
operations, where there would be an actual need for a manager or executive who will primarily perform 
qualifying duties. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andor services, and its objectives. See Matter of Ho, 22 I&N 
Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for 
the alien entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an 
acceptable business plan: 
The plan should contain a market analysis, including the names of competing businesses 
and their relative strengths and weaknesses, a comparison of the competition's products 
and pricing structures, and a description of the target marketlprospective customers of the 
new commercial enterprise. The plan should list the required permits and licenses 
obtained. If applicable, it should describe the manufacturing or production process, the 
materials required, and the supply sources. The plan should detail any contracts executed 
for the supply of materials andor 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 
WAC 08 070 51213 
Page 11 
projections and detail the bases therefor. Most importantly, the business plan must be 
credible. 
Id. 
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. 
As correctly noted by the director, the petitioner has failed to establish that the petitioning organization is 
able to remunerate the beneficiary and commence doing business in the United States. However, the 
petitioner has also failed to establish that the beneficiary will primarily perform qualifying duties after the 
petitioner's first year in operation or to sufficiently and credibly describe the nature, scope, and financial 
goals of the new office. 8 C.F.R. 9 214.2(1)(3)(v)(C). 
First, as correctly noted by the director, the petitioner has failed to establish that the petitioning 
organization is able to remunerate the beneficiary and commence doing business in the United States. 8 
C.F.R. 5 214.2(1)(3)(v)(C)(2). The petitioner claims that the beneficiary will be paid $50,000.00 per year 
and that the enterprise will have first year rentlutility expenses of $14,400.00, other salary expenses of 
$91,250.00, and sales and marketing expenses of $142,200.00. The petitioner firther projects that it will 
have $530,000.00 in sales in 2008, that it will receive a total of $65,000.00 in "new investment," and that 
it currently has $60,000.00 in cash. However, the record fails to substantiate any of these claims with 
evidence. The record is devoid of evidence addressing the source of these projected sales or explaining 
how, exactly, this projected sum was established. The record also fails to address the source or existence 
of its current assets or the expected "new investment." Other than $21,189.72 in its checking account and 
some work in progress for an existing client, the record is devoid of evidence that the United States 
operation is "so successful" that it will be able to do business in the United States, pay its projected 
expenses, and remunerate the beneficiary without further investment from abroad. Once again, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190. 
Furthermore, the record is devoid of any current financial information pertaining to the foreign entity. 
The most recent financial data, a summary of a 2005 Israeli tax return, fails to establish that the foreign 
entity is currently able to pay the beneficiary's salary or to commence doing business in the United States. 
Once again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Id. Failure to submit requested evidence that precludes 
a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). 
Accordingly, the petitioner has failed to establish that the petitioning organization is able to remunerate 
the beneficiary and commence doing business in the United States. 
Second, the job description for the beneficiary fails to credibly establish that the beneficiary will be 
performing primarily "managerial" or "executive" duties after the petitioner's first year in operation. 
Once again, 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). 
WAC 08 070 51213 
Page 12 
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, counsel to the petitioner describes the beneficiary as managing the United States operation 
in the January 2, 2008 letter. As this job description is in the record, it will not be repeated here. 
Generally, the beneficiary is described as performing supervisory, marketing, and sales related tasks. The 
petitioner also submitted a proposed organizational chart for the United States operation. This chart 
indicates that, during its first year in operation, the petitioner plans to hire two secretaries, two sales 
persons, and a vice president. The petitioner did not describe the duties of these proposed employees or 
establish the skills or education necessary to perform the duties. The petitioner also did not indicate that 
any of these proposed workers will have supervisory or managerial responsibilities over other workers. 
Upon review, even assuming the petitioner will be able to hire the employees identified in the proposed 
organizational chart, the petitioner has failed to establish that the beneficiary will primarily perform 
qualifying duties after the petitioner's first year in operation. To the contrary, it appears more likely than 
not that the beneficiary will perform non-qualifymg sales and marketing tasks, and work as a fmt-line 
supervisor of non-professional employees, after the first year in operation. The fact that the petitioner has 
given the beneficiary a managerial or executive title and has prepared a 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. Sava, 724 F. Supp. 1103, aff d, 905 F.2d 41. 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 Treasure Craft of California, 14 I&N Dec. 190. 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. at 604. A 
managerial or executive 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. See 
101(a)(44) 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. 
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 sufficiently describe the nature, 
scope, and financial goals of the new office. 8 C.F.R. $ 214.2(1)(3)(v)(C)(I). As explained above, the 
petitioner describes the United States operation as a renovation business. However, the petitioner's 
business plan and associated financial projections are entirely unsupported by evidence. The record does 
not credibly describe the operation's competitors or its staffing and financial plan. The record does not 
contain any independent analysis. Importantly, as noted above, the record is devoid of the petitioner 
having any substantial assets. It is not credible 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. Absent a detailed, 
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credible, and financially feasible description of the petitioner's proposed United States business operation, 
it is impossible to conclude that the proposed enterprise will succeed. 
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. 5 214.2(1)(3)(v)(C), and the 
petition may not be approved for the above reasons. 
The third issue in the present matter is whether the petitioner has established that it and the foreign entity 
are qualifying organizations. 
The regulation at 8 C.F.R. 9 214.2(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. 5 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a 
firm, corporation, or other legal entity which "meets exactly one of the qualifylng 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." A "subsidiary" is defined in pertinent part as a corporation "of which a parent 
owns, directly or indirectly, more than half of the entity and controls the entity." 8 C.F.R. 5 
2 14.2(1)(1)(ii)(K). 
The regulation and case law confm 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 (BIA 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. 
As general evidence of a petitioner's claimed qualifylng relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate 
entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes 
of relevant annual shareholder meetings must also be examined to determine the total number of shares 
issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its 
effect on corporate control. Additionally, a petitioning company must disclose all agreements relating to 
the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any 
other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., supra. 
Without full disclosure of all relevant documents, USCIS is unable to determine the elements of 
ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. 8 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock 
ownership was acquired. As requested by the director, evidence of this nature should include 
documentation of monies, property, or other consideration furnished to the entity in exchange for stock 
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ownership. 
 Additional supporting evidence would include stock purchase agreements, subscription 
agreements, corporate by-laws, minutes of relevant shareholder meetings, or other legal documents 
governing the acquisition of the ownership interest. 
In this matter, the petitioner claims in the Form 1-129 to be 51% owned and controlled by the foreign 
employer, a business entity located in Israel. In support, the petitioner submitted a stock certificate 
representing the issuance of 510 shares to the foreign entity. However, the petitioner also submitted a 
document titled "Unanimous Written Consent in Lieu of First Meeting of the Board of Directors of [the 
petitioner]" in which it is indicated that the foreign entity contributed no money to the start-up of the 
organization. The beneficiary is described in the same document as contributing $1,000.00. 
On January 15,2008, the director requested additional evidence. The director requested, inter alia, evidence 
that the foreign entity has paid for its ownership stake in the United States operation, a copy of the petitioner's 
stock ledger, and a copy of its California Notice of Transaction Pursuant to Corporations Code Section 
25 102(f). 
In response, counsel explains the following in a letter dated April 7,2008: 
The corporation was founded by the Israeli company and [the beneficiary]; therefore there 
was no stock purchase, and there was no original payment for any stocks or wire transfers 
other than the original cash deposits invested in the company as start up costs. Since this is 
an initial privately held company, there is no stock ledgers because no shares have been 
transferred or sold to date. The only existing shares are the two original shares issued to the 
aria shareholders as stated in the initial parent company resolution. Therefore, also the 
California corporate code section 25102(f) showing the total offering amount does not apply 
to this corporation. 
On April 22,2008, the director denied the petition. The director concluded that the record does not establish 
that the foreign entity has become a majority owner in the United States operation, because it has not been 
established that it has acquired the shares purportedly issued to it. 
On appeal, counsel asserts that the record sufficiently establishes that the foreign entity is the 51% owner of 
the petitioner. 
Upon review, counsel's assertions are not persuasive. 
In this matter, the record is devoid of evidence that the foreign entity has acquired its claimed interest in the 
petitioner. It does not appear as if the foreign entity has contributed any funds to the United States operation 
in exchange for the issuance of a majority of the petitioner's stock. Counsel's assertion that there was no 
"original payment" by the foreign entity because it "founded" the petitioner is not a credible explanation for 
why it has never invested any money in the organization in exchange for its stock, especially since the 
beneficiary, as the minority owner, did allegedly contribute funds. The record is not persuasive in 
establishing that the foreign entity is truly the owner of a majority interest in the petitioner. As noted above, 
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stock certificates alone are not sufficient evidence to determine whether a stockholder maintains 
ownership and control of a corporate entity. 
The petitioner also failed to submit a copy of its stock ledger or its California Notice of Transaction Pursuant 
to Corporations Code Section 25102(f). Again, counsel's explanation for the absence of these documents is 
not credible, and it has not been established that the petitioner was exempt from this California corporate 
filing requirements. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). The non-existence or other unavailability of 
required evidence creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 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 Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190). 
Accordingly, as the petitioner has failed to clearly establish its ownership and control, it has failed to 
establish that it has a qualifying relationship with the foreign employer, and the petition may 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), 
afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (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.