dismissed L-1A Case: Retail

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
U.S. D<'pllrtmcnt of Homeland Security 
U.S. Citizenship and Immigration Scrvice,> 
Administrative Appe:lls Office lAAO) 
2() Massachusetts Ave., N.\V., j\."rs 209() 
Washin£'lon. DC 20529-209(l 
~'.i' U.S. Citizenship J.®I.I:. j and Immigration 
%~i Services •. /.-1.ND .,~.~_ 
DATE: JUL 0 1 2011 Office: VERMONT SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOJ(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.c. § J 101 (a)(l5)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.go\, 
Page 2 
DISCUSSION: The Director, Vennont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-I A nonimmigrant 
intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 
U.s.c. § IIOI(a)(l5)(L). The petitioner, a Louisiana corporation established in August 2008, states that it 
intends to engage in the sale of gasoline, automotive and household items. It claims to be a subsidiary of 
....... Store, located in Mumbai, India. The petitioner seeks to employ the beneficiary as the 
president and chief executive officer of its new office in the United States for a period of one year. 
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, or that the U.S. entity would support a managerial 
or executive position within one year of commencing operations in the United States. 
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 
placed undue emphasis on the size and nature of the petitioner's retail business in detennining whether the 
beneficiary would be employed in a managerial or executive capacity. Counsel submits a brief and additional 
evidence in support of the appeal. 
I. The Law 
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101 (a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (1)(1 )(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 
Page 3 
education, trammg, and employment qualifies himfher 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. § 214.2(1)(3)(v) further provides 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 in the United 
States, 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 of managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) 
or (C) of this section, supported by information regarding; 
(1) 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. 
II. The Issue on Appeal 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity within one year. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § I 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 
Page 4 
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. § I IOI(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 one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
U.S. Citizenship and Immigration Services (USerS) regulation, that allows for a more lenient treatment of 
managers or executives that are entering the United States to open a new office. When a new business is first 
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 low-level 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 that first year. In an accommodation that is more lenient than the strict 
language of the statute, the "new office" regulations allow a newly established petitioner one year to develop 
to a point that it can support the employment of an alien in a primarily managerial or executive position. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is prepared to commence doing business immediately upon approval so that it will support 
a manager or executive within the one-year timeframe. 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. See generally, 8 C.F.R. § 214.2(l)(3)(v). The petitioner must describe the nature of 
its business, its proposed organizational structure and financial goals, and submit evidence to show that it has 
the financial ability to remunerate the beneficiary and commence doing business in the United States. /d. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on September 29,2008. In a letter 
dated September 5, 2008, the petitioner described the beneficiary's proposed duties as president and CEO as 
follows: 
Page 5 
[The beneficiary] will have overall executive responsibility for developing, organizing, and 
establishing the purchase, sale and marketing of merchandise for sale in the U.S. market. 
[The beneficiary's] other duties will include: (i) identifying, recruiting, and building a 
management team and staff with background and experience in the U.S. retail market; (ii) 
negotiating and supervising the drafting of purchase agreements; (iii) marketing products to 
consumers according to [the foreign entity's] guidelines; (iv) overseeing the legal and 
financial due diligence process and resolving any related issues; (v) developing trade and 
consumer market strategies based on guidelines formulated by [the foreign entity]; (vi) 
developing and implementing plans to ensure [the petitioner's] profitable operation; and (vii) 
negotiating prices and sales terms, developing pricing policies and advertising techniques. 
The petitioner further indicated that the beneficiary's time would be allocated as follows: 
Management Decisions 40% 
Company Representation 15% 
Financial Decisions 10% 
Supervision of day-to-day company functions 10% 
Business Negotiations 15% 
Organizational Development of Company 10% 
The petitioner stated on Form 1-129 that it has a projected staffing level of ten employees. The petitioner 
provided a proposed organizational chart indicating that the beneficiary would supervise a vice president and 
general manager, who in turn would supervise a sales and marketing manager, a "manager-retails" and an 
accountant. The next tier of employees depicted on the chart includes a purchase agent, an assistant manager, 
and a bookkeeper. Finally, according to the organizational chart, the assistant retail manager would supervise 
two cashiers. The petitioner provided brief position descriptions for each of the proposed positions. 
The petitioner submitted a two-page business plan which indicates that the company's goal is "to establish 
retail sales of gas, automotive and household items that has been purchased with an initial investment of 
$100,000.00." The petitioner indicated that its initial gas station/convenience store business would be open 
12 hours per day, seven days per week, would employ ten U.S. workers, and would pay salaries of 
approximately $7,500 per month. 
Finally, the petitioner provided a signed lease agreement between 
for the premises located at Louisiana. 
The director issued a request for evidence ("RFE") on March 9, 2009, in which she instructed the petitioner to 
submit: (I) a comprehensive description of the beneficiary'S duties; (2) complete position descriptions for all 
proposed U.S. employees, including a breakdown of the number of hours devoted to each of the employee's 
job duties on a weekly basis; (3) evidence of funds transferred from the foreign entity; (4) photographs of the 
interior and exterior of all premises secured for the U.S. entity; and (5) evidence of assets purchased for start­
up of the U.S. company. 
Page 6 
Counsel for the petitioner submitted a letter dated April 22, 2009 in response to the director's RFE. Counsel 
emphasized that eligibility for the L-I visa classification is not limited to large U.S. companies or to 
beneficiaries with extensive supervisory responsibilities. 
With respect to the beneficiary's duties, counsel stated: 
[The beneficiary 1 serves as ... and continues to 
establish our U.S. operations. is our expansion, banking, 
budgeting, and marketing. In addition, he hires and trains other managers and employees and 
is in charge of increasing the sales of the company. He is employed at the highest executive 
level and has complete authority to establish goals and policies and exercises discretionary 
decision-making authority based upon policies and procedures developed by shareholders. 
[The beneficiary 1 assumes sole responsibility of all discretionary actions taken by the U.S. 
entity to ensure its profitable operation. 
[The beneficiary 1 will supervise other professional and managerial employees, establishes 
goals and policies for the U.S. investment, and exercises wide latitude in discretionary 
decision-making under the direction of directors and shareholders of the Parent Company. 
Beneficiary's duties are clearly "Executive or Managerial" in nature .... 
Counsel further stated that the petitioner intends to acquire two retail locations during its first year of 
operation. Counsel indicated that the beneficiary is negotiating the purchase of a retail convenience store 
doing business as ' " and has made a payment in the amount of $5,000 to 
Inc., the current owner, as earnest money. Counsel indicated that the beneficiary will purchase this location 
after a 90-day feasibility period. 
In support of the RFE response, the petitioner submitted a cashier's check remitted by the beneficiary in the 
amount of $5,000, which is issued in favor of The check is dated April \7, 2009. The 
petitioner also provided a statement of revenue and expenses for ' for the year 2008, and 
a copy of the lease agreement between and Inc. for the 
premises at Louisiana. The lease stipulates that "Lessee shall have no 
right to assign or sub-lease this lease without prior written consent of Lessor." The initial term of the lease 
was from February 1, 2008 through January 31, 2009. 
The petitioner submitted various documents related to , including its recent sales and use 
tax returns, bank records, and licenses to sell lottery tickets, gasoline, groceries, tobacco and alcohol doing 
business as' The petitioner also provided copies of invoices, receipts bills and 
other of the retail store. FinallY, the petitioner submitted 
Report for the first quarter of 2009, which reflects 
The director denied the petition on May 13, 2009, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity within on year of the approval 
of the petition. The director emphasized that the petitioner's descriptions of the beneficiary's proposed duties 
were too general and nonspecific, and generally paraphrased the statutory definitions of managerial and 
Page 7 
executive capacity. The director further determined that the evidence was insufficient to establish that the 
beneficiary's proposed subordinate employees would be managers or professionals, notwithstanding their job 
titles and asserted educational credentials. The director concluded that, while the beneficiary's proposed job 
title is president, the petitioner failed to establish that he would be engaged in primarily managerial or 
executive duties, or that he would be relieved from performing the non-managerial, day-to-day operations 
involved in producing a product or providing a service within one year. 
On appeal, counsel emphasizes that the L-I visa category is available to small companies, and argues that 
USCIS is required to consider the petitioner's "reasonable needs" and its stage of development. Counsel 
provides a revised description of the beneficiary's proposed duties, noting that he will spend 30 percent of his 
time on the management of retail operations; 15 percent of his time on administrative functions including the 
hiring and training of staff; 15 percent of his time on planning, budgeting, banking, finance and accounting; 
and 40 percent of his time searching for, reviewing and analyzing potential new investments. Counsel asserts 
that the company's vice president/general manager and accountant are degreed professionals who will report 
directly to the beneficiary. 
Counsel contends that the beneficiary "is already negotiating 
doing business as " and 
and the purchase of a retail gas station 
states that he has paid $10,000 to __ 
~. -, I the existing owners, as unsel indicates that the beneficiary will purchase 
the location at the conclusion of a 90-day feasibility period. 
Counsel concludes that, based on the evidence submitted, it is "very clear" that the beneficiary will supervise 
other professional and managerial employees, establish goals and policies for the U.S. investment, and 
exercise wide latitude in discretionary decision-making. 
SUlPP,)rt of the appeal, the petitioner submits additional documentation related to the business activities of 
In addition, the petitioner submits an agreement between the petitioning company and 
installation and activation of video poker devices at the petitioner's business 
••••••••••••• , Louisiana." 
Upon review of the petition and the evidence, and for the reasons discussed herein, the petitioner has not 
established that the beneficiary will be employed by the United States entity in a managerial or executive 
capacity within one year. 
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. § 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. !d. Beyond the required description of the job duties, USCIS 
reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's proposed organizational structure, the duties of the beneficiary's 
proposed subordinate employees, the petitioner's timeline for hiring additional staff, the presence of other 
employees to rei ieve the beneficiary from performing operational duties at the end of the first year of 
operations, the nature of the petitioner', business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. The petitioner's evidence should 
demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from 
Page 8 
the developmental stage to full operations, where there would be an actual need for a manager or executive 
who will primarily perform qualifying duties. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
In the instant matter, counsel and the petitioner have repeatedly described the beneficiary's proposed position 
in very broad terms, noting his "complete authority to establish goals and policies," his "discretionary 
decision-making authority," and his "overall responsibility of planning and developing the U.S. investment." 
These duties merely paraphrase the statutory definition of executive capacity. See section 101 (a)( 44 )(B) of the 
Act. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin 
Bros. Co" Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Similarly, although the petitioner provided a breakdown of how the beneficiary's time would be allocated 
among her various responsibilities, this description was even more vague, indicating that the beneficiary 
would devote his time to "management decisions," "company representation," "financial decisions," "business 
negotiations," "organizational development," and "supervision of day-to-day company functions." The AAO 
cannot accept an ambiguous position description and speculate as to the related managerial or executive duties 
to be performed. 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. at 1108. 
The petitioner also addresses the beneficiary's responsibility for "developing, organizing, and establishing the 
purchase, sale, and marketing of merchandise" and notes that the beneficiary will be involved in negotiating 
and supervising the drafting of purchase agreements, "marketing products to consumers," "developing trade 
and market strategies," negotiating prices and sales terms, overseeing financial issues, and "developing 
pricing policies and advertising techniques." The petitioner's description does not clearly identify the 
managerial or executive duties to be performed with respect to the purchase, marketing, sales, finance, and 
advertising functions of the proposed retail operations. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation of the 
beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Thus, while several of the duties generally described by the petitioner would generally fall under the 
definitions of managerial or executive capacity, the lack of specificity raises questions as to the beneficiary's 
actual proposed responsibilities. Overall, the position description alone is insufficient to establish that the 
beneficiary's duties would be primarily in a managerial or executive capacity, particularly in the case of a new 
office petition where much is dependent on factors such as the petitioner's business and hiring plans and 
evidence that the business will grow sufficiently to support the beneficiary in the intended managerial or 
executive capacity. The petitioner has the burden to establish that the U.S. company would realistically 
develop to the point where it would require the beneficiary to perform duties that are primarily managerial or 
executive in nature within one year. Accordingly, the totality of the record must be considered in analyzing 
whether the proposed duties are plausible considering the petitioner's anticipated staffing levels and stage of 
development within a one-year period. 
Page 9 
The petitioner seeks to rely upon its alleged acquisition of an existing business, , , in lieu 
of submitting a detailed business and hiring plan. The AAO notes that the petitioner's initial business plan, 
submitted in September 2008 at the time of filing, indicates that the company had already made a $100,000 
investment in a retail operation. The record is completely devoid of any evidence or explanation of this 
investment or evidence of the financial status of the U.S. petitioner, despite the director's request for such 
evidence. 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). There is no evidence in the record to establish that the 
petitioning company has even established a bank account in the United States. 
Further, counsel has indicated that the beneficiary is in the process of negotiating the purchase of one or more 
retail businesses, but has not otherwise claimed that a retail has been acquired. With respect to the 
petitioner's alleged proposed acquisition of ' the petitioner has submitted: (I) a lease 
indicating that the petitioner has leased the premises where this store is located as of August 2008; and (2) a 
check in the amount of $5,000 from the beneficiary's personal finances, which the petitioner claims is earnest 
money for the purchase of the convenience store. 
This evidence falls significantly short of establishing that the petitioner intends to purchase this business. 
First, with respect to the lease agreement, we note that the petitioner has also submitted the lease agreement 
between d/b/a and the owner of the building where the store is 
located. The evidence of record shows that was to rent to its landlord 
pursuant to the terms of this agreement as of May 2009. Although has the option to 
purchase the leased premises, it clearly has not done so. as lessee, is not 
authorized to assign or sub-let the to another or entity without permission from its landlord. 
The lease agreement identifying as the petitioner's "landlord" appears to be invalid. 
Further, the evidence of record clearly demonstrates that continues to use the premises for the 
operation of its business. The petitioner has not submitted a floor plan or other evidence that two companies 
are able to operate out of the same retail store. 
The record is also devoid of a purchase . and the petitioner addressing 
the terms of the proposed sale of the total sales price, the earnest money requirements, or 
the allege~riod referenced by counsel. As such, a copy of a check in the amount of 
$5,000 to __ does not in fact establish that a sale has taken place, or will take place. 
Furthermore, the check was written seven months after the petition was flIed, and thus does not establ ish that 
the petitioner was prepared to commence business operations upon approval of the petition. Counsel further 
confuses matters on appeal by stating that the beneficiary has written a check for $ 10,000 to ••••••• 
•. for the purchase of ." It is unclear if this is the same transaction referenced in the 
petitioner's response to the RFE, or if counsel is claiming that the petitioner is purchasing a second business 
from the same company. Regardless, the petitioner has not submitted probative or credible evidence that it 
has purchased an existing business or that it had imminent plans to do so at the time the petition was filed. 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). 
Page 10 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U.s.C. § llOl(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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)(A)(iv) of the Act; 8 C.F.R. § 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. § 214.2(1)(1)(ii)(B)(3). 
The petitioner indicates that it will operate a retail store and that the beneficiary will manage subordinate 
professional and managerial staff. As discussed above, the petitioner has not established that it has acquired 
or will acquire the retail store known as " so evidence of the current staffing levels of 
the current owner of the convenience store, are not relevant to this discussion. 
In evaluating whether the beneficiary manages 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 I (a)(32) of the Act, 8 U.S.C. § 110 I (a)(32), states that "[t]he 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, II I&N Dec. 686 (D.O. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by a subordinate employee. The possession of a 
bachelor's degree by a subordinate employee does not automatically lead to the conclusion that an employee 
is employed in a professional capacity as that term is defined above. 
Furthermore, the petitioner's evidence must substantiate that the duties of the beneficiary and his proposed 
subordinates correspond to their placement in the 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 managerial position. 
While the petitioner has submitted a proposed organizational chart depicting four tiers of proposed managerial 
employees supervising a staff of two cashiers, a two-person accounting department, a sales and marketing 
manager, and a purchase clerk, the petitioner has not shown how a gas station and convenience store would 
support this staffing structure. The petitioner's stated need for four or more managers and as few as two 
cashiers is not entirely plausible given the nature of the petitioner's business and the petitioner's claim that it 
will be open for business seven days per week for at least 12 hours per day. While it has assigned many of its 
proposed positions managerial job titles, it is reasonable to believe that the petitioner has a reasonable need 
for more lower-level employees, such as cashiers and stockers, than it does managers. Counsel indicated in 
response to the RFE that the company intends to acquire two locations in its first year of operations; however, 
such goals were not set forth in the petitioner's initial business plan, and no revised plan was submitted. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
Page 11 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). As noted above, the petitioner claimed that it had made a $100,000 
investment in a retail operation, but failed to support this claim with documentary evidence. 
The petitioner has not provided credible evidence of a proposed organizational structure that would be 
sufficient to elevate the beneficiary to a supervisory position that is higher than a first-line supervisor of non­
professional employees. 
The AAO's analysis of this issue is severely restricted by the petitioner's failure to submit an adequate 
business plan. While a business plan is not explicitly required in the regulations, counsel has specifically 
acknowledged that a detailed business plan is typically provided to establish that a new office will support a 
managerial or executive position within one year. As contemplated by the regulations, a comprehensive 
business plan should contain, at a minimum, a description of the business, its products andlor services, and its 
objectives. See Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to 
the regulatory requirements for the alien entrepreneur immigrant visa classification, Matter of Ho is 
instructive as to the contents of an acceptable business plan: 
!d. 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target market/prospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials andlor the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefore. Most importantly, the business plan must be credible. 
In this matter, a review of the totality of the evidence submitted provides very little information regarding the 
number of employees to be hired, the timeline for hiring employees, the financial position of the U.S. 
company, the petitioner's anticipated start-up costs and financial objectives for the first year of operations, and 
the physical premises secured by the U.S. company. Although some of these deficiencies will be discussed in 
more detail below, the AAO notes that the petitioner's submission of a vague job description for the 
beneficiary, a proposed organizational chart, and a two-page business plan, falls significantly short of 
establishing that the company will be able to support a primarily managerial or executive position within a 
twelve-month period. The regulations require the petitioner to present a credible picture of where the 
company will stand in exactly one year, and to provide sufficient supporting evidence in support of its claim 
that the company will grow to a point where it can support a managerial or executive position within one year. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft 
of California, 14I&NDec. 190 (Reg. Comm'r. 1972)). Again, it appears that the petitioner sought to establish 
the beneficiary's eligibility by submitting evidence of the staffing and business activities of 
Page 12 
_ but simply failed to document any legal connection between the petitioning U.S. company and this 
business. 
The AAO does not doubt that the beneficiary will have the appropriate level of authority over the petitioner's 
business as its president. However, the definitions of executive and managerial capacity each 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 show 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), 1991 WL 144470 (9th Cir. July 30,1991). 
Overall, the vague job description provided for the beneficiary, considered in light of the petitioner's business 
and hiring plans for the first year of operations, prohibits a determination as to whether the petitioner could 
realistically support a managerial or executive position within one year. Accordingly, the appeal will be 
dismissed. 
Beyond the decision of the director, the record does not establish that the petitioner had secured sufficient 
physical premises to house the new office, as required by 8 C.F.R. § 214.2(l)(3)(v)(A), as of the date the 
petition was filed. As noted above, the petitioner submitted a "commercial lease agreement" for the premises 
located at Louisiana. However, the evidence of record shows that the 
petitioner's continues to operate its business from this location and pay rent to 
the owner of the building pursuant to its The petitioner has not submitted evidence 
that the petitioner has paid rent to or was authorized by its 
lesser to execute a lease agreement as "landlord" of these premises. Again, 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). 
As the validity of the lease agreement is in question, and the petitioner has submitted no other lease 
agreement, it cannot be concluded that the petitioner had secured sufficient space to house the new office as 
of the date the petition was filed. For this additional reason, the petition may not be approved. 
Another deficiency not discussed by the director is the lack of evidence of the size of the United States 
investment, as required by 8 C.F.R. § 214.2(l)(3)(v)(C)(2). The petitioner indicates that it made a $100,000 
investment in a U.S. retail business, but as discussed above, the record is completely devoid of evidence of 
this transaction. Again, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. For this 
additional reason, the petition cannot be approved. 
Finally, although not addressed by the director, the petitioner submitted insufficient evidence to establish that 
the petitioner has a qualifying relationship with the beneficiary's overseas employer. To establish a 
"qualifying relationship" under the Act and the regulations, the petitioner must show that the beneficiary'S 
foreign employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" 
offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(l5)(L) of the 
Act; 8 C.F.R. § 214.2(1). 
Page 13 
The petitioner claims to be a wholly-owned subsidiary Store. At the time of filing, the 
petitioner submitted its stock certificate number one indicating that all 1,000 authorized shares of the U.S. 
company have been issued to the claimed parent company. The stock certificates appear to have been 
creating using a standard word processing program. No other evidence was submitted in support of the 
claimed parent-subsidiary relationship. In the RFE issued on March 9, 2009, the director specifically 
requested evidence to show that the foreign entity has paid for its claimed ownership interest in the U.S. 
entity, including copies of the original wire transfers from the parent company, deposit receipts, canceled 
checks or other evidence detailing the monetary amounts paid for the stock purchase. 
In response to this request, the petitioner submitted a letter from _ indicating that the beneficiary's 
bank account balance as of September 29, 2008 was $16,134.11. No other evidence was submitted. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BlA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BlA 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 qualifying 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 petitioner has 
not adequately documented its claimed issuance of 1,000 shares of stock to Sheroo Leather Shop. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. § 214.2(l)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock or membership certificates into the means by which 
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 membership or stock 
ownership. Additional supporting evidence would include stock purchase agreements, subscription 
agreements, corporate by-laws, minutes of relevant shareholder or member meetings, or other legal 
documents governing the acquisition of the ownership interest. As noted above, the petitioner's response to 
the director's request for evidence merely established that the beneficiary has funds in his personal bank 
account. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.P.R. § 103.2(b)(14). Based on the foregoing, the petitioner has not established that 
it has a qualifying relationship with the beneficiary's foreign employer. For this additional reason, the appeal 
will be dismissed. 
Page 14 
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 Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO conducts 
appellate review on a de novo basis). 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. v. United States, 229 F. Supp. 2d at 1043. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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. 
ORDER: The appeal is dismissed.