dismissed L-1A Case: Retail

identifying data deleted to 
prevent clearly unwarranteu 
invarion of personal privaq 
PUBLTC COPY 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofjce of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: EAC 09 007 50281 Office: VERMONT SERVICE CENTER Date: APR 2 9 2010 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 10 1 (a)(] 5)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 103.5 for the 
specific requirements. All motions must be submitted to the ofice that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
v 
erry Rhew 
Chief, Administrative Appeals Office 
EAC 09 007 50281 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AA0 will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary 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. 4 1101(a)(15)(L). The petitioner, a Texas corporation established in Se tember 2008, intends to 
operate a retail business. The petitioner claims that it is a subsidiary of , located in 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 one-year period. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity within one year. 
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 of the petitioning company in determining whether the beneficiary would 
be employed in a managerial or executive capacity within one year. Counsel submits a brief in support of the 
appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. tj 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 himher 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. 
EAC 09 007 50281 
Page 3 
The regulation at 8 C.F.R. 3 214.2(1)(3)(~) 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 (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 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. 
As a preliminary matter, the AAO notes that the petitioner indicated on Form 1-129 that the beneficiary is 
coming to the United States in order to open a new office. Subse uent to the filing of the petition, the 
petitioner claimed that it acquired a controlling interest in q., a Texas corporation established in 
1983. It appears that the director determined that the petitioner should not be deemed a "new office" 
subsequent to its claimed acquisition of a fully-staffed and operational U.S. company that had been doing 
business for more than one year. However, as discussed in further, infia, the petitioner has not submitted 
sufficient evidence to establish its controlling interest in Solleys Inc., and the AAO finds the new office 
provisions at 8 C.F.R. 5 214.2(1)(3)(v) applicable in this matter. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may Limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g.). Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Section 10 1(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
EAC 09 007 50281 
Page 4 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 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 one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
U.S. Citizenship and Immigration Services (USCIS) 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 
EAC 09 007 50281 
Page 5 
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. 8 214.2(1)(3)(~). 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. Id. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on October 3, 2008. In a letter dated 
September 10, 2008, the petitioner described the beneficiary's proposed duties as president and CEO as 
follows: 
[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. His 
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 Sheru International; (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 and in its supporting letter that it intends to hire eight full-time 
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 retail manager, and an accountant. The next tier of employees depicted on the chart includes a purchase 
agent and an assistant manager. Finally, according to the organizational chart, the assistant manager would 
supervise one cashier. 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 business would be open 12 hours per day, seven days 
per week, would employ eight workers and would pay salaries of approximately $7,500 per month. 
The director issued a request for evidence (WE) on October 3 1,2008, in which he advised the petitioner that 
additional evidence would be necessary to establish how the new company will grow to be of sufficient size 
to support a managerial or executive position within one year. Specifically, the director requested: (1) a 
EAC 09 007 5028 1 
Page 6 
detailed description of the type of business to be operated; (2) a more detailed business plan for the first two 
years of operation, including specific dates for each proposed action; (3) a more detailed description of the 
beneficiary's proffered position; and (4) evidence of the financial status of the U.S. organization. 
Counsel for the petitioner submitted a letter dated January 22, 2009 in response to the director's RFE. 
Counsel emphasized that eligibility for the L-1 visa classification is not limited to large U.S. companies or to 
beneficiaries with extensive supervisory responsibilities. Counsel noted that the petitioner has acquired 50% 
of the shares of, which operates a liquor and tobacco retail store known as - 
With respect to the beneficiary's duties, counsel stated: 
[The beneficiary] serves as the President and CEO of our U.S. subsidiary. . . and continues to 
establish our U.S. operations. He is responsible for all our planning, expansion, banking, 
budgeting and marketing. In addition, he hires and trains other managers and employees and 
is in chare 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] assumes sole responsibility of all discretionary actions taken by the U.S. 
entity to ensure its profitable operation. 
[The beneficiary] 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 indicated that the beneficiary will serve as president and chief executive officer of both companies, 
and will oversee supervisors and managers who supervise employees running the day-to-day operations. 
Counsel noted that currently has six employees and "projects to employ additional 14 fulltime 
employees within that end of three-year period." Counsel further indicated that the petitioner intends to 
acquire three additional locations in the next three years, each of which would be staffed by a first-line 
manager, assistant manager and two cashiers/clerks. 
The petitioner submitted a copy of Texas Form C-3, Employer's Quarterly Report, for the 
fourth quarter of 2008, which lists a total of six employees. According to the petitioner's IRS Forms W-2, 
Wage and Tax Statement, the company paid total salaries and wages of $26,200 in 2008. 
The petitioner submitted an organizational chart for which identifies the beneficiary as president 
and CEO, directly supervising the vice president and general manager. The chart shows that the remaining 
staff including a retail manager, an assistant manager, an accountant, a clerk and two cashiers, both of whom 
are employed on a contract basis. The petitioner did not identify any employees by name on the 
organizational chart. The petitioner submitted evidence that one of the employees identified on the Form C-3, 
, has a bachelor of arts degree. The petitioner also submitted a bachelor's degree for = 
~r. is not listed on the quarterly wage reports, but is claimed to be a 50 percent owner - 
of -. 
EAC 09 007 50281 
Page 7 
As evidence of the ownership of the petitioner submitted copies of three of the petitioner's stock 
certificates. The photocopies provided are poor and the stock certificate numbers are illegible. The certificates 
indicate that 500 shares were issued to on April 11, 2005, 500 shares were issued to = 
on April 11, 2005, and 500 shares were issued to the petitioner's claimed parent company,= 
on January 9, 2009. The petitioner also submitted a Sale and Purchase Agreement dated April 11, 
individuals. 
The petitioner also submitted the Minutes of Reorganizational Meeting dated January 9, 2009 for - 
The AAO notes that the meeting minutes indicated that the comDanv was organized in the State of Texas on u L, u 
September 4, 2008, while other evidence in the record indicates that . was inco orated in 1983. 
The meeting minutes indicate that would transfer his 500 shares to that stock 
certificate number 1 would be canceled, that stock certificate number 3 would be issued, and that the resulting 
ownership would be as follows~, 500 shares and, 500 shares. 
Finally, in response to the director's request that the petitioner submit evidence of the financial status of the 
U.S. company, the petitioner submitted various financial documents pertaining to including IRS 
Forms 1120, U.S. Corporation Income Tax Returns, bank statements, and other evidence of business 
activities. 
The director denied the petition on February 6, 2009, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. The director observed that 
the beneficiary's proffered salary of $36,000 is not "commensurate with a bona fide manager or executive in 
the business market." The director further noted that it was not established whether the beneficiary or his 
subordinate personnel require bachelor's degrees, such that they could be considered professionals. The AAO 
notes, however, that a beneficiary's salary is an admissibility factor and not a criterion to be used in determining 
his or her prospective employment capacity. The director's finding with regard to the latter is not supported by 
any statute, regulations or precedent decision. Similarly, there is no statutory or regulatory requirement that the 
beneficiary of an L-1A visa petition possess a college degree or serve in a position requiring such a degree. The 
director's comments regarding the beneficiary's salary and educational qualifications are therefore withdrawn. 
The director further determined that the petitioner failed to establish that the beneficiary would be supervising a 
subordinate staff comprised of managerial, supervisory or professional employees, that he would be managing an 
essential function of the organization, or that he would be otherwise relieved from performing the day-to-day 
services of the company. 
On appeal, counsel reiterates the beneficiary's previously provided position description and arguments made 
in response to the director's request for evidence. Counsel emphasizes that the L-1 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. 
With respect to the beneficiary's management of subordinate supervisors, professionals and managers, counsel 
asserts that the beneficiary will oversee an executive-level general manager, first-line managers including an 
accountant and a retail manager, and additional staff including a bookkeeper, an assistant manager and a 
cashierlstocker. Counsel asserts that the general manager and accountant are "degreed individuals" who report 
EAC 09 007 50281 
Page 8 
to the beneficiary. Specifically, the etitioner states that is the vice president and general manager 
and possesses a bachelor's degree, is the accountant and has a bachelor's degree in economics, 
and is the retail manager and has a bachelor's degree in arts. Counsel contends that the 
director was unreasonable in making an assumption that the accountant and retail manager are not 
professionals. Counsel also reiterates that the petitioner intends to acquire three additional locations within the 
next three years and will increase the company's workforce accordingly. 
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. 
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. 
As a preliminary matter, the AAO acknowledges counsel's claim on appeal that the petitioner is not subject to 
the regulations governing "new offices" at 8 C.F.R. 5 214.2(1)(3)(~) because it purchased a controlling interest 
in a U.S. company which counsel claims was fully staffed and operating in the United States 
"since 2005." As discussed further below, the petitioner has not established that it has acquired the claimed 
controlling interest in m 
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. 5 214.2(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. 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 relieve the beneficiary from performing operational duties at the end of the first year of 
operations, the nature of the petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. The petitioner's 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. 3 214.2(1)(3)(~). 
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 10l(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 .). 
EAC 09 007 50281 
Page 9 
Similarly, although the petitioner provided a breakdown of how the beneficiary's time would be allocated 
among his various responsibilities, this description was even more vague, indicating that the beneficiary 
would devote his time to "management decision," "company representation," "financial decisions," "business 
negotiations," "organizational development," and "supervision of day-to-day operations." 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. Suva, 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 1 108. 
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 such 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. 
The ~etitioner seeks to relv uDon its claimed acauisition of a controlling interest in an existing retail business. - - - 
., in lieu of submitting a detailed business and hiring plan and other 
regulations governing new office petitions. While the evidence does show that is operating a 
retail liquor and tobacco store, the petitioner has not fully or credibly documented its ownership of this 
claimed subsidiary company. Although the minutes of a meeting allegedly held on January 9, 2009 indicate 
that one of the company's shareholders agreed to sell 50 percent of his stock to the petitioner's claimed parent 
company, the petitioner has not identified the purchase price or provided evidence of a payment to Solleys 
Inc. in exchange for the issued stock to corroborate its claim that the acquisition actually occurred. The 
petitioner's initial business plan, submitted several months prior to the claimed acquisition of -. 
indicates that the company had already made a $100,000 investment in a retail operation, but the record is 
completely devoid of any evidence 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 
EAC 09 007 50281 
Page 10 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(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. 
Furthermore, there are several inconsistencies in the record which raise questions regarding the validity of the 
claimed stock transfer. First, the petitioner and counsel have consistently indicated that the petitioning 
company acquired a 50 percent interest in ., however, the evidence submitted indicates that the 
petitioner's parent company- and not the petitioner, is the owner of 50 percent of -1 
stock. While the stock certificates submitted are partially illegible, the AAO notes that according to the 
minutes of the reorganizational meeting of Solleys Inc., the only stock certificates issued to date are stock 
certificate #I, issued to in April ~oo;, stock certificate #2, issued to in April 
2005, and stock certificate #3, issued to in January 2009. However, the evidence in the record 
indicates that was established in 1983. Given that the evidence indicates that and 
purchased the company from five individual shareholders in April 2005, it is reasonable to 
assume that the company issued at least five stock certificates prior to April 2005. Furthermore, the minutes 
of the reorganizational meeting state that the company was established in September 2008, a date which is 
clearly inaccurate. 
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). 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. In light of the 
omissions and discrepancies catalogued above, the AAO is not persuaded petitioner has acquired a controlling 
, or that the beneficiary will serve in a dual role as president of both the petitioner and 
Even assuming arguendo that the petitioner had sufficiently documented its purchase of, the 
AAO agrees with the director's determination that the record does not establish that the beneficiary would 
serve in a primarily managerial or executive role within one year. 
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. 9 1101(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 
lOl(a)(44)(A)(iv) of the Act; 8 C.F.R. 5 214.2(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 has confirmed that. had six employees as of December 2008, however, it has failed 
to identify with any specificity what position most of these employees hold. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
EAC 09 007 50281 
Page 11 
The petitioner indicates on appeal that two or three of the employees of have bachelors degrees. 
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 10I(a)(32) of the Act, 8 U.S.C. I 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 ofsea, 19 I&N Dec. 817 (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). 
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. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
necessary to work as an accountant or retail manager for a liquor store. 
While the petitioner has submitted a proposed organizational chart depicting four tiers of proposed managerial 
employees supervising a staff of one cashier, a sales and marketing manager, a purchase agent and an 
accountant, the petitioner has not shown how a single retail outlet would support this structure. The 
petitioner's stated need for five managers and a single cashier is not entirely plausible given the nature of the 
petitioner's proposed retail business and the petitioner's claim that it will be open for business seven days per 
week for 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. Finally, the AAO notes that the minimal information provided in 
the petitioner's business plan indicates that the company anticipates paying $7,500 in salaries per month to 
eight employees. The beneficiary's proposed monthly salary is $3,000. The petitioner did not indicate how 
$4,500 would be sufficient to pay the seven additional full-time employees contemplated for the first year of 
operations. 
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 and/or 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 
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Page 12 
materials and/or 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. 
Id. 
In this matter, excluding the evidence submitted with respect to, the totality of the evidence 
submitted provides very little evidence regarding the number of employees to be hired, the timeline for hiring 
employees, the financial position of the U.S. company and the foreign entity, 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, a 
two-page business plan, and a lease for physical premises of unidentified size and type, falls significantly 
short of establishing that the company would 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 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 SofJici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The AAO acknowledges that the petitioner chose to rely 
on its acquisition of Solleys Inc, in lieu of submitting much of the required supporting documentation for a 
new office petition. As discussed above, however, it has not either its acquisition of 
the claimed subsidiary or the current and proposed staffing of 
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 his or 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. 5 214.2(1)(3)(v)(A), as of the date the 
uetition was filed. The uetitioner has not described its anticiuated suace reauirements for its chain of retail -~- ---~- ~- 
stores. The lease ageemkt provided in support of the petition: for a dremise;located- 
in Brookeland, Texas, does not identify the amount of space secured, or indicate the authorized use for the 
premises, and there is nothing in the agreement to suggest that it is in fact for a retail store. The petitioner 
EAC 09 007 50281 
Page 13 
subsequently provided a purchase agreement and photographs of the property held by but even 
assuming that the petitioner had documented its acquisition of the claimed subsidiary in January 2009, it is 
still required to establish that it had secured sufficient physical premises for operation of its intended business 
as of October 2008 when the petition was filed. Based on the insufficiency of the information furnished, 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(1)(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. The record contains no evidence of a bank account held by the petitioner and no evidence that 
any funds have been transferred from the foreign entity as an initial investment in the U.S. company. Again, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165. For this additional reason, the 
petition cannot be approved. 
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 identi@ 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. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if he or she shows that the AAO abused its discretion with respect to all of the 
AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 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. tj 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.