dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLK: COPY 
File: EAC 07 023 50782 Office: VERMONT SERVICE CENTER Date: IpR 6 3 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. €j 1101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
P 4, 
Robert iemann, Chief 
Administrative Appeals Office 
EAC 07 023 50782 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its 
presidedmanager as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1 lOl(a)(lS)(L). The petitioner is a corporation 
organized under the laws of the State of Florida and allegedly operates a restaurant.' The beneficiary was 
granted a one-year period of stay to open a new office in the United States, and the petitioner now seeks to 
extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the director 
erred and that the beneficiary's duties are primarily those of a manager. 
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 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. fj 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 full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hirnher to perform the intended 
'According to the records of the Department of State of Florida, the petitioner's correct corporate name is 
"A.I.G. Inc.," and not AIG Inc. 
EAC 07 023 50782 
Page 3 
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. tj 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence 
of wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 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 
EAC 07 023 50782 
Page 4 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1 101(a)(44)(B), defines the tern "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 will primarily perform managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. Although counsel appears to limit the beneficiary to the managerial classification on appeal, counsel 
earlier asserted that the beneficiary will be employed as both a manager and an executive in the response to 
the director's Request for Evidence. A petitioner may not claim that a beneficiary will be 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 will be employed as either a 
manager or an executive and will consider both classifications. 
The petitioner asserts in the Form 1-129 that it currently employs three workers. Also, in a letter dated 
October 4,2006, the petitioner describes the majority of the beneficiary's proposed duties in the United States 
as follows: 
[The beneficiary's] main responsibilities within our Company (60% of his time): 
Directs the management of the organization or a major component of [sic] function of 
the organization; 
Establishes the goals and policies of the organization, component, or function; 
Exercises wide latitude in discretionary decision making; and 
Receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The petitioner also indicates that the beneficiary will devote the remaining 40% of his time to a variety of 
duties pertaining to staffing, scheduling, financial matters, marketing, customer relations, and reporting to the 
foreign parent company. 
EAC 07 023 50782 
Page 5 
Finally, the petitioner submits an organizational chart for the United States operation. The chart shows the 
beneficiary at the top of the organization directly supervising a "general accountant" who, in turn, is shown 
supervising a secretary and six proposed positions. 
On March 19, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed description of the beneficiary's proposed duties in the United States; job descriptions for all other 
employees in the United States; a breakdown of the number of hours devoted to each of the employees' job 
duties on a weekly basis, including a breakdown for the beneficiary; and photographs of the United States 
operation. 
In response, the petitioner submitted a document titled "List of Employees and Job Duties" in which it 
describes the beneficiary's proposed job duties as follows: 
Direct the management of [the petitioner] 
Establish the goals and policies of [the petitioner] 
Exercise wide latitude in discretionary decision[-]making 
Receive only general supervision or direction from higher level executives, the board 
of directors, or stockholders of [the petitioner] 
Develop staffing plans and establish work plans and schedules for each phase of 
projects in accordance with time limitations and funding 
Evaluate project proposals and determine methods and procedures for accomplishing 
the projects, including staffing requirements and allotting funds to various phases of 
projects: 
Plan and develop labor and public relations policies designed to improve the 
company's image and relations with customers, suppliers, employees and the general 
public; 
Review Activity Reports and Financial Statements to determine status in obtaining 
objectives; 
Assist with product development in order to assure that the Company is kept abreast 
of current conditions 
Hire, dismiss and recommend the appropriate personnel and supervise personnel 
decisions and relations 
Report to the Board of Directors on plans and progress toward set goals for the 
company's international trade business and establishing the company policies and 
management directives for meeting these goals 
Develop marketing strategies in order to promote [the petitioner's] image. This will 
include planning and setting prospective annual budget allocations for all marketing 
and promotion, in consultation with the President and CEO of the foreign company. 
Manage and coordinate service representatives sales of marketing and support 
services to members and trade partners. 
Exercise discretion in settling customer complaints and disputes in accordance with 
general company policies 
EAC 07 023 50782 
Page 6 
It is noted that the first four duties listed above are materially identical to the four duties which the petitioner 
asserts in the letter dated October 4, 2006 will consume 60% of the beneficiary's time. The remaining ten 
duties are materially identical to the remaining duties listed in the October 4, 2006 letter, which the petitioner 
asserts will collectively consume 40% of the beneficiary's time. 
The petitioner also submits a materially different organizational chart for the United States operation. The 
new chart shows the beneficiary at the top of the organization directly supervising five workers who, in turn, 
are portrayed as supervising an unidentified "staff." The five workers are described as an administrative 
manager, a food service manager, an executive chief, a chief of delivery, and a senior account manager. The 
"senior account manager," 
 was previously as 
described as having supervisory authority over a "secretary," 
 nizational chart 
submitted with the initial petition. Likewise, the "administrati 
ascribed the title "secretary" and described as reporting to the "general accountant" in the previously 
submitted organizational chart. Moreover, given the previously submitted organizational chart and the 
petitioner's averment that it employs three workers in the Form 1-129, it is appears that the petitioner hired the 
food service manager, the executive chief, and the chief of delivery after the filing of the instant petition on 
November 1,2006. 
Finally, the petitioner described the duties of the subordinate staff listed in the revised organizational chart. 
As these job descriptions are in the record, they will not be repeated here verbatim. Generally, the petitioner 
described the "senior account manager" as overseeing the financial aspects of the business. The 
"administrative manager" is described generally as training, supervising, and scheduling "staff' and as 
administering internal controls, customer relations, and health and inventory matters. None of the five 
subordinate employees is specifically described as supervising one or more existing employees. 
On July 20, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties are primarily those of a manager. Counsel further 
indicates that the petitioner only became operational in May 2007, approximately six months after the filing 
of the instant "new office extension" petition. Finally, counsel submitted a letter dated August 8, 2007 fkom 
the petitioner's certified public accountant indicating that the petitioner "started business in May of 2007 and 
had [its] first payroll at the end of May." 
Upon review, counsel's assertions are not persuasive. 
Title 8 C.F.R. 4 214.2(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 Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If 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. Future hiring 
plans, or staff hired after the filing of the instant petition, may not be considered. The petitioner must 
establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved 
based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new 
EAC 07 023 50782 
Page 7 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak, 14 
I&N Dec. 45, 49 (Cornm. 1971). In the instant matter, the United States operation has not reached the point 
that it can employ the beneficiary in a predominantly managerial or executive position. 
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). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. As explained above, a petitioner 
may not claim that a beneficiary will be 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 
will act 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 will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will spend 60% of his time directing 
the management of the organization, establishing goal and policies, exercising wide latitude in discretionary 
decision-making, and receiving only general supervision or direction from executives, the board of directors, 
or the stockholders. The petitioner's response to the Request for Evidence appears to reinforce this job 
description and allocation of duties. However, this job description simply repeats the statutory definition of 
"executive capacity" found in section 101(a)(44)(B) of the Act, 8 U.S.C. tj 1 101 (a)(44)(B), and fails to 
specifically define any of the goals, policies, or decision-making which will consume 60% of his time or to 
describe what, exactly, the beneficiary will do in "directing the management of the organization." Such vague 
executive-sounding duties are not probative of the beneficiary performing qualifying duties. 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 does not establish that the beneficiary will actually perform managerial or 
executive duties. Specifics are clearly an important indication of whether a beneficiary's duties are 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. 1 103 (E.D.N.Y. 1989), af'd, 905 F.2d 41 (2d. 
Cir. 1990). Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). 
Likewise, the record is not persuasive in establishing that the petitioner employs a subordinate staff capable of 
relieving the beneficiary of the need to perform primarily non-qualifying administrative or operational tasks 
in his operation of the enterprise. As noted on appeal, the petitioner did not begin operating until May 2007 
and did not have its first payroll until the end of that month. As the instant petition was filed over six months 
prior to the petitioner's first payroll and the commencement of business operations, it does not appear that the 
petitioner employed a subordinate staff at the time the instant petition was filed in November 2006. As noted 
above, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
petition may not be approved based on speculation of future eligibility or after the petitioner or beneficiary 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248. 
Accordingly, the record is not persuasive in establishing that the beneficiary will be relieved by a subordinate 
staff from the need to perform the non-qualifying administrative and operational tasks inherent to his ascribed 
EAC 07 023 50782 
Page 8 
duties and, thus, it has not been established that he will be "primarily" employed as a manager or an 
executive. 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 (requiring that one 'primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593,604 (Cornm. 1988). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
First, as noted above, it does not appear that the petitioner actually employed any of the claimed staff 
members at the time of the instant petition was filed. Therefore, for this reason alone, the petitioner has failed 
to establish that the beneficiary will supervise and control subordinate employees. Second, even assuming 
that the petitioner employed the workers claimed in the petition, the record is not persuasive in establishing 
that any of these workers will truly have supervisory or managerial responsibilities over other existing 
employees. As noted in the organizational chart submitted in response to the Request for Evidence, all five 
subordinate workers are shown reporting directly to the beneficiary. Furthermore, while some of the 
subordinate workers are described as training and scheduling prospective staff members, not one of the 
subordinate workers is specifically described as having supervisory responsibilities over any of the other four 
subordinate employees. In view of the above, the beneficiary would appear to be primarily a first-line 
supervisor of non-professional workers, the provider of actual services, or a combination of both. 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. 10 1 (a)(44)(A)(iv) of the Act; see 
also Matter of Church Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to 
establish the skills and education required to perform the duties of the subordinate positions, the petitioner has 
not established that the beneficiary will manage professional employees.* Therefore, the petitioner has not 
established that the beneficiary will be employed primarily in a managerial capacity.) 
2 
In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10 1 (a)(32) of the Act, 8 U.S.C. tj 1 10 1 (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. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
3 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. 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 
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 
EAC 07 023 50782 
Page 9 
Similarly, the petitioner has failed to establish that the beneficiary will act 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 functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because 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 will act primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce with any certainty what the beneficiary will do on a day- 
to-day basis. Moreover, as explained above, it appears instead that the beneficiary will be primarily 
employed as a first-line supervisor and will perform the tasks necessary to produce a product or to provide a 
service. Therefore, the petitioner has not established that the beneficiary will be employed primarily in an 
executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "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 13 13, 13 16 (9" Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991); Fedin Bros. Co. v. Suva, 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 CIS 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). The size of a company may be especially relevant when 
CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
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. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record establishes that the beneficiary will primarily be a first-line supervisor of non-professional 
employees and/or will perform non-qualifying operational or administrative 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 will be managerial, nor can it deduce whether the beneficiary will primarily 
perform the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). 
EAC 07 023 50782 
Page 10 
In this matter, the petition contains serious inconsistencies regarding its staffing and business operations. For 
example, while the petitioner claims in the Forrn 1-129 to employ three workers, counsel submitted a letter 
from an accountant on appeal which indicates that the petitioner did not have any employees until May 2007, 
over six months after the filing of the Form 1-129. Furthermore, while the petitioner submitted an 
organizational chart with the initial petition, this chart differs materially from the chart submitted in response 
to the Request for Evidence. The first chart shows the beneficiary at the top of the organization directly 
supervising a "general accountant" who, in turn, is shown supervising a secretary and six proposed positions. 
However, the second chart shows the beneficiary at the top of the organization directly supervising five 
workers who, in turn, are portrayed as supervising an unidentified "staff." The "senior account manager," 
was previously 
 accountant" and was described as having 
supervisory authority over a "secretary," 
 chart submitted with the initial 
petition. Likewise, the "administrative manager," 
 , was previously ascribed the title "secretary" 
and described as reporting to the "general accountant" in the previously submitted organizational chart. The 
petitioner offers no explanation for these various inconsistencies in the record. 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, 59 1-92 (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. 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad 
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. $§ 
2 14.2(1)(3)(iii) and (iv). 
Upon review, the petitioner failed to specifically describe the beneficiary's job duties abroad. Specifics are 
clearly an important indication of whether a beneficiary's duties will be primarily executive or managerial in 
nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Suva, 724 F. Supp. 1103, am, 905 F.2d 41. Furthermore, the petitioner failed to describe the 
duties of the beneficiary's purported subordinates abroad, if any. Absent detailed descriptions of the duties of 
both the beneficiary and his purported subordinates, it is impossible for CIS to discern whether the 
beneficiary was "primarily" engaged in performing managerial or executive duties abroad. See sections 
10 1 (a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or 
executive capacity for one continuous year in the three years preceding the filing of the petition, and the 
petition may not be approved for this reason. 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are 
qualifying organizations. 
EAC 07 023 50782 
Page 11 
The regulation at 8 C.F.R. 4 214.2(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." 
 See also 8 C.F.R. 4 214.2(1)(14)(ii)(A). 
 Title 8 C.F.R. 4 214.2(i)(l)(ii)(G) defines a 
"qualifying organization" as a firm, corporation, or other legal entity which "meets exactly one of the 
qualifying relationshps 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." "Doing business" is defined in part as "the 
regular, systematic, and continuous provision of goods andlor services." 8 C.F.R. 8 214.2(1)(l)(ii)(H). 
In this matter, the record is devoid of evidence of the foreign employer or the petitioner currently doing 
business. The record does not contain any evidence from 2006 addressing the regular, continuous, and 
systematic provision of goods and/or services by either entity. While counsel on appeal submitted evidence 
that the petitioner was engaged in setting up its business in ~lorida in 2006 and 2007, counsel admits that 
"[tlhe restaurant has been hlly operational since May 2007." The instant petition was filed on November 1, 
2006. Also, setting up a business does not constitute the regular, systematic, and continuous provision of a 
good or service. As noted above, the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved based on speculation of future eligibility or 
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248. In view of the above, the record is not persuasive in establishing that the foreign 
entity was engaged in "doing business." The record is also not persuasive in establishing that the petitioner 
was "doing business" at the time the instant petition extension was filed. 
Accordingly, the petitioner has not established that it and the foreign entity are qualifying organizations. For 
this additional reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner has also failed to establish that the petitioner has been 
"doing business" for the previous year as required by 8 C.F.R. § 214.2(1)(14)(ii)(B). As indicated above, the 
petitioner did not commence doing business until over six months after the filing of the instant petition. 
Accordingly, the petitioner has failed to establish that the petitioner has been "doing business" for the 
previous year, and the petition may not be approved for this additional reason. 
The previous approval of an L-1A petition does not preclude CIS from denying an extension based on a 
reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 291 of the Act, 8 U.S.C. tj 1361. 
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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
EAC 07 023 50782 
Page 12 
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. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.