dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washlngton, DC 20529-2090 
idmtiSyring data deleted to 
preven; :!early tlnwmanted 
 U. S. Citizenship 
bvasion d2:rsond privsc~ and Immigration 
PUBLIC COPY 
File: EAC 08 047 50793 Office: VERMONT SERVICE CENTER Date: MAR 0 4 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any 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. 8 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Administrative Appeals Office 
EAC 08 047 50793 
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 AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of "general 
manager" to open a new office in the United States as an L-1A nonimrnigrant intracompany transferee 
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 
1 101(a)(15)(L). The petitioner, a corporation formed under the laws of the State of Florida, plans to operate a 
general merchandise dollar store. 
The director denied the petition concluding that the petitioner failed to establish that the United States 
operation will support an executive or managerial position 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, the petitioner asserts that it has established that the 
beneficiary will primarily perform qualifying duties within one year. 
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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (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 08 047 50793 
Page 3 
In addition, the regulation at 8 C.F.R. § 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been 
secured; 
(B) 
 The beneficiary has been employed for one continuous year in the 
three year period preceding the filing of the petition in an executive 
or managerial capacity and that the proposed employment involved 
executive or managerial authority over the new operation; and 
(C) 
 The intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial 
position as defined in paragraphs (l)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial 
ability of the foreign entity to remunerate the beneficiary and 
to commence doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The primary issue in this proceeding is whether the intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial position. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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 
EAC 08 047 50793 
Page 4 
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. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction fiom higher level executives, the board 
of directors, or stockholders of the organization. 
In support of its petition, the petitioner submitted a document titled "business plan" for a single-location retail 
"bargain store" located in Orlando, Florida. The plan indicates in the "executive summary" that the United 
States operation will receive a $60,000.00 investment from the beneficiary's foreign employer; however, in 
the "company summary" section, the plan indicates that the enterprise will require an initial investment of 
$162,891 .OO to fund the operation's start-up expenses. These itemized expenses do not include any funds set 
aside to pay salaries. The list of start-up expenses consists mainly of inventory, rent, advertising, and deposit 
costs. Nevertheless, the plan asserts that the petitioner will, within six months of commencing operations, 
hire an operations manager, an administrative service manager, a sales manager, administrative assistants, 
customer service assistants, salespersons, cashiers, and an administrative secretary, in addition to the 
beneficiary. The beneficiary is described as supervising, directly or indirectly, all of these prospective 
employees. 
The plan also contains financial projections for the first five years. The record does not establish that these 
projections are based on any independent, empirical data. The plan projects $900,000.00 in first year gross 
profit based on $2 million in sales resulting in $403,000.00 in net income after operating expenses, which 
include $175,600.00 in salaries. 
The petitioner also submitted a bank letter indicating that, as of the date of petition filing, the petitioner had 
$20,000.00 in its bank account. The record does not establish the source of these funds. 
Furthermore, the petitioner described the beneficiary's proposed duties in a document titled "job descriptions" 
as follows: 
EAC 08 047 50793 
Page 5 
Negotiate with the members of the Board of Directors to set their expectations in relation to 
the desired results from Dollar Star in the short, mid and long range terms. 
Establishes the policies and initiatives required to ensure that Dollar Star will operate as a 
team working together toward the desired results. 
Establishes the goals needed to reach the objectives of Dollar Star and to accomplish the 
expectations of the future Directors, Managers and other Members. 
Coordinates the development and the implementation of the plans, programs, and strategies 
for generating resources, revenues, and profits for Dollar Star, ensuring that they will reach 
the established goals and objectives for the company. 
Directs members by coordinating the activities of the different areas of Dollar Star, and by 
ensuring that the work is done under the established policies, and focused on the desired and 
programmed results. 
Reviews and presents activity reports and financial statements to determine and to show the 
progress and status while attaining goals and objectives, in accordance to what was planned 
for the current conditions. 
Represents Dollar Star before the managers, employees, contractors, clients, potential clients, 
prospects, suppliers, partners, authorities, community leaders, civic groups, students, and the 
community in general. 
The petitioner also claims that the beneficiary will devote 53.8% of his time to "meeting with management." 
The petitioner also submitted an organizational chart for the proposed United States operation. The chart 
shows the beneficiary, as general manager, supervising finance and administration, marketing, planning and 
development, and operations. The chart does not specifically identify any positions, filled or vacant, other 
than the beneficiary's position as general manager. 
Finally, the petitioner submitted a document titled "plan of personnel." Similar to the document titled 
"business plan," this plan also indicates that the United States operation will employ within six months an 
operations manager, an administrative service manager, a sales manager, administrative assistants, customer 
service assistants, salespersons, cashiers, and an administrative secretary, in addition to the beneficiary. The 
duties of those employees ascribed managerial titles were described as follows: 
Position: Operations Manager 
Duties: Will be responsible for the results from all the activities; directing all the 
Management and operational aspects of the Operations Division; coordinating the several 
levels of subcontractors and their employees; exercising authority delegated by the General 
Manager. 
EAC 08 047 50793 
Page 6 
Position: Sales Manager 
Duties: Will direct the actual distribution or movement of a product or service to the 
customer. Coordinate sales distribution by establishing sales territories, quotas, and goals and 
establish training programs for sales representatives. Analyze sales statistics gathered by 
staff to determine sales potential and inventory requirements and monitor the preferences of 
customers. 
Position: Administrative Services Manager 
Duties: Will plan, direct, or coordinate supportive services of an organization, such as 
recordkeeping, mail distribution, telephone operator/receptionist, and other office support 
services. May oversee facilities planning and maintenance and custodial operations. 
On February 8, 2008, the director requested additional evidence. The director requested, inter alia, further 
evidence establishing the claimed investment in the United States operation and more detailed descriptions of 
the proposed duties of the beneficiary and any projected subordinate employees. 
In response, the petitioner submitted a letter dated April 13, 2008 in which the petitioner indicates that a 
university degree will not be required for any of the subordinate positions. The petitioner also further 
described the beneficiary as supervising the sales, operations, and financial managers who, in turn, will 
perform the duties described in the initial petition. 
Finally, the petitioner submitted financial and business documents pertaining to events occurring after the 
petition was filed on December 4,2007. 
On May 6, 2008, the director denied the petition concluding that the petitioner failed to establish that the 
United States operation will support an executive or managerial position within one year. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval. 
Upon review, counsel's assertions are not persuasive. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
EAC 08 047 50793 
Page 7 
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 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 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 
therefor. Most importantly, the business plan must be credible. 
Id. 
For several reasons, the petitioner in this matter has failed to establish that the United States operation will 
succeed and rapidly expand as it moves away from the developmental stage to full operations, where there 
would be an actual need for a manager or executive who will primarily perform qualifying duties. The 
petitioner has failed to establish that the beneficiary will primarily perform qualifying duties after the 
petitioner's first year in operation; has failed to establish that the beneficiary will be relieved of the need to 
perfom the non-qualifying tasks inherent to the operation of the business by a subordinate staff within the 
petitioner's first year in operation; has failed to sufficiently and credibly describe the nature, scope, and 
financial goals of the new office; and has failed to establish that a sufficient investment has been made in the 
United States operation. 8 C.F.R. 5 214.2(1)(3)(v)(C). 
As a threshold issue, it is noted that the receipt of investment funds, the hiring of workers, the purchase and 
sale of inventory, and adjustments to the petitioner's business expansions plans which arose after the filing of 
the instant petition may not be considered in determining whether the petitioner has established that the 
United States operation will support a managerial or executive employee within one year. The petitioner 
must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter 
of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Accordingly, evidence submitted in response 
to the Request for Evidence and on appeal, such as invoices and bank statements, which pertain to 
transactions occurring after the filing of the instant petition may not be considered on appeal. The fact that 
some of these transactions occurred before the director denied the petition on May 6, 2008 is not relevant. If 
the petitioner believes that these changes in circumstances warrant approval of the petition, it should file a 
new petition rather than seek the consideration of evidence of events occurring after the filing of the petition. 
EAC 08 047 50793 
Page 8 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
U.S. Citizenship and Immigration Services (USCIS) requirements. See Matter of Izummi, 22 I&N Dec. 169, 
176 (Assoc. Comm. 1998). 
First, the job description for the beneficiary fails to credibly establish that the beneficiary will be performing 
primarily "managerial" or "executive" duties after the petitioner's first year in operation. When examining the 
proposed executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's 
description of the proposed job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties that will be performed by the beneficiary and indicate whether such 
duties will be either in an executive or managerial capacity. Id. 
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis after the petitioner's first year in 
operation. For example, the petitioner states that the beneficiary will devote 53.8% of his time to "meeting 
with management." The petitioner also claims that the beneficiary will "coordinate" the development and 
implementation of plans, programs, and strategies; "direct" members by coordinating activities; and establish 
policies, goals, and initiatives. However, the petitioner fails to specifically describe these plans, policies, 
programs, strategies, and goals, or to explain what, exactly, the beneficiary will do to "coordinate" or "direct" 
the enterprise other than to act as a first-line supervisor of a non-professional staff operating at a single- 
location dollar store. The fact that the petitioner has given the beneficiary a managerial or executive title and 
has prepared a vague job description which includes inflated duties does not establish that the beneficiary will 
actually perform managerial duties after the first year in operation. Specifics are clearly an important 
indication of whether a beneficiary's duties will be primarily executive or managerial in nature; otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Likewise, the record is not persuasive in establishing that the beneficiary will be, after the first year, relieved 
of the need to "primarily" perform the non-qualifying tasks inherent to his duties and to the operation of the 
single-location dollar store in general. While the petitioner claims that it will hire additional employees 
during its first year in business, the petitioner's claims are not credible. In the "business plan" and "plan of 
personnel," the petitioner claims that it will hire within six months, in addition to the beneficiary, an 
operations manager, an administrative service manager, a sales manager, administrative assistants, customer 
service assistants, salespersons, cashiers, and an administrative secretary. However, based on the petitioner's 
financial projections and its current financial status, it does not appear likely that the petitioner will be able to 
hire this proposed staff. Although the petitioner claims that it will require $162,891 .OO to fund the operation's 
start-up expenses, the record indicates that the petitioner had only $20,000.00 in a bank account at the time 
the petition was filed. Also, these projected start-up expenses do not set aside any money to pay salaries. 
Finally, the petitioner's income and expense projections, which project $175,600.00 in salaries and 
$403,000.00 in net income for the first year, are entirely unsupported by independent evidence. Once again, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Id. 
EAC 08 047 50793 
Page 9 
Overall, the petitioner has failed to establish that it will truly be able to hire the workers described in the 
record. To the contrary, it appears that, in his operation of the single-location dollar store, the beneficiary will 
not be relieved of the need to primarily perform the non-qualifying administrative, operational, or first-line 
supervisory tasks inherent to his duties. Simply alleging that the petitioner will hire ten or more employees 
who will perform non-qualifying tasks does not establish that the United States operation will truly grow and 
mature into an active business organization which will reasonably require the services of a beneficiary who 
will primarily perform managerial or executive duties. Rather, the petitioner must clearly define the scope 
and nature of a United States operation and establish that it has, and will continue to have, the financial ability 
and business strategy to support the establishment and growth of the business. However, as the record in this 
matter is devoid of any such evidence, the petitioner has failed to establish that the beneficiary will more 
likely than not perform "primarily" qualifying duties after the petitioner's first year in operation. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Regardless, even assuming the petitioner could hire the proposed workers described in the record, it appears 
that the beneficiary will be, at most, a first-line supervisor of non-professional workers. A managerial or 
executive employee must have authority over day-to-day operations beyond the level normally vested in a 
first-line supervisor, unless the supervised employees are professionals. See 101(a)(44) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. at 604. The petitioner has not established that any 
of the proposed subordinate "manager" positions will be bona fide supervisory, managerial, or professional 
workers. As the petitioner indicates in response to the Request for Evidence that none of the subordinate 
positions will require a university degree, it has not been established that the beneficiary will supervise 
professionals.1 Furthermore, the proposed subordinate workers have not been described as having managerial 
or supervisory responsibilities. To the contrary, given the size and nature of the dollar store operation, it is 
more likely than not that the beneficiary and his proposed subordinate employees will all primarily perform 
the tasks necessary to the operation of the business. See generally Family, Inc. v. US. Citizenship and 
Immigration Services, 469 F.3d 13 13 (9th Cir. 2006). It is not credible that a business, such as the petitioner's 
proposed United States operation, will develop an organizational complexity within one year which will 
require the employment of a subordinate tier of managers or supervisors who will ultimately be supervised 
and controlled by a primarily executive or managerial employee. Therefore, it appears that the beneficiary 
will be, at most, a first-line supervisor of non-professional, dollar store employees. 
1 
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 IOl(a)(32) of the Act, 8 U.S.C. 8 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
EAC 08 047 50793 
Page 10 
Accordingly, the petitioner has failed to establish that the beneficiary will be primarily employed in a 
managerial or executive capacity within one year, and the petition may not be approved for that reason. 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner has failed to sufficiently describe the nature, scope, 
and financial goals of the new office. 8 C.F.R. 5 214.2(1)(3)(v)(C)(I). As explained above, the petitioner 
describes the United States operation as a single-location, retail dollar store. However, the petitioner's 
business plan and associated financial projections are entirely unsupported by evidence. The record does not 
specifically describe the operation's marketing strategy, and the petitioner fails to address its potential 
competitors. The record does not contain any independent analysis. Importantly, as noted above, the record 
indicates that the petitioner had $20,000.00 in its bank account at the time the petition was filed. It is not 
credible that the United States operation will succeed and rapidly expand as it moves away from the 
developmental stage to full operations, where there would be an actual need for a manager or executive who 
will primarily perform qualifying duties, with such a meager source of start-up capital, especially given that 
the petitioner claims it will need $162,891.00 to fund even the most basic expenses. Absent a detailed, 
credible, and financially feasible description of the petitioner's proposed United States business operation, it is 
impossible to conclude that the proposed enterprise will succeed. 
Third, the petitioner has failed to establish that the United States operation has received an investment which 
will permit the enterprise to grow and succeed during its first year in operation. As noted above, the record 
indicates that the petitioner has only $20,000.00 in its bank account. As the business plan projects that the 
enterprise will need $162,891 .OO to fund its start-up expenses, the record is not persuasive in establishing that 
the business will 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. 
Although the petitioner submitted evidence pertaining to the receipt of funds after the filing of the instant 
petition, evidence of investments made after the filing of the petition may not be considered. Once again, the 
petitioner must establish eligibility at the time of filing the nonirnmigrant visa petition. A visa petition may 
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Michelin Tire Corp., 17 I&N Dec. 248. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. 5 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above  reason^.^ 
Beyond the decision of the director, the petitioner failed to establish that it has secured sufficient physical 
premises to house the new office. 8 C.F.R. 5 214.2(1)(3)(v)(A). 
2 
Counsel cited the Foreign Affairs Manual (FAM) as authority. It must be noted that the FAM is not binding 
upon USCIS. See Avena v. INS, 989 F. Supp. 1 (D.D.C. 1997); Matter of Bosuego, 17 I&N 125 (BIA 1979). 
The FAM provides guidance to employees of the Department of State in carrying out their official duties, 
such as the adjudication of visa applications abroad. The FAM is not relevant to this proceeding. 
EAC 08 047 50793 
Page 11 
In support of the petition, the petitioner submitted a lease dated October 10,2007 for 209 square feet of office 
space. It does not appear as if this space would be sufficient to house the dollar store enterprise described in 
the business plan. Although the petitioner submitted a letter of intent pertaining to the lease of a larger retail 
space, the draR lease for this property has not been executed by either party. 
Accordingly, the record is not persuasive in establishing that, at the time the instant petition was filed, the 
petitioner had secured premises sufficient to house the enterprise, and the petition may not be approved for 
this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign entity are 
qualifying organizations. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. 5 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a fm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing 
business." A "subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity." 8 C.F.R. 5 214.2(1)(l)(ii)(IS). 
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; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed 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 regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. 8 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
EAC 08 047 50793 
Page 12 
property, or other consideration furnished to the entity in exchange for stock ownership. 
 Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
In this matter, the petitioner claims in the Form 1-129 to be 100% owned and controlled by the foreign employer, 
- In support, the petitioner submitted organizational documents, including a stock 
certificate representing the issuance of 10,000 shares to the foreign employer. However, in the Request for 
Evidence, the director requested evidence "showing the parent company has in fact paid for the ownership of the 
United States entity." In response, the petitioner failed to submit any evidence responsive to this request. 
Although the petitioner submitted evidence that it deposited $20,000.00 into a bank account in November 2007, 
the record is devoid of evidence establishing the source of these funds. The record is also devoid of any 
evidence addressing what, if anything, the foreign entity contributed in exchange for its ownership interest 
prior to the filing of the instant petition. 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). The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. $ 103,2(b)(2)(i). Once 
again, going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190). 
Accordingly, as the petitioner has failed to clearly establish its ownership and control, it has failed to establish 
that it has a qualifying relationship with the foreign employer, and the petition may not be approved for this 
additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed 
abroad in a primarily managerial or executive capacity. 8 C.F.R. $ 214.2(1)(3)(v)(B). 
The petitioner described the beneficiary's duties abroad in a letter dated November 20,2007 as follows: 
Identify, define and be responsible for the overall management of the revenues and 
sales strategies for foreign markets, ensuring a comprehensive knowledge about the 
motivation and key competitors in the industry; 
Serve as the company's contact person for key international partners and clients; 
Target International key potential clients, building relationships with key contacts; 
Develop, communicate and promote the company's image; 
In charge of the sales contact and the whole sale process with major international 
clients/prospects; 
Report to the Board of Directors and company's President to finalize strategic 
proposals; 
Travel overseas and Nationwide to meet clients, as per arrangements. 
The petitioner claims that the beneficiary supervised three managers and fifteen employees. Although the 
petitioner listed some of these workers, the record is devoid of evidence pertaining to the actual duties of any 
EAC 08 047 50793 
Page 13 
of the beneficiary's claimed subordinate employees, even though this evidence was specifically requested by 
the director in the Request for Evidence. 
Upon review, it has not been established that the beneficiary primarily performed managerial or executive 
duties abroad. The petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary did on a day-to-day basis abroad. Once again, specifics are clearly 
an important indication of whether a beneficiary's duties were primarily executive or managerial in nature; 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, afd, 905 F.2d 41. 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. Furthermore, the petitioner failed to describe the duties of 
the beneficiary's claimed subordinate employees, even though this evidence was specifically requested by the 
director. Once again, failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Absent job descriptions for the subordinate 
workers, it cannot be concluded that the beneficiary was relieved of the need to perform non-qualifying tasks 
by a subordinate staff or that he supervised and controlled the work of other supervisory, managerial, or 
professional workers. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 101 (a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. 
at 604. A managerial or executive employee must have authority over day-to-day operations beyond the level 
normally vested in a first-line supervisor, unless the supervised employees are professionals. See 10 1 (a)(44) 
of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, as the petitioner failed to establish that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, the petition may not be approved for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (noting that the AAO reviews appeals on a de novo 
basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.