dismissed L-1A Case: Retail

u.s.Department of Homeland Security
20 Massachusetts Ave.,N .W., Rm. 3000
Washington, DC 20529
PUBUCCOPY
U.S. Citizenship
and Immigration
Services
File: EAC 0618954058 Office: VERMONT SERVICE CENTER Date: OCT 02 2001
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) ofthe Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(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.
Robert P. Wiemann, Chief
fistratiVe Appeals Office
www.uscis.gov
EAC 0618954058
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 as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8
U.S.c. § llOl(a)(15)(L). The petitioner is a limited liability company organized in the State of Texas that
intends to operate gas stations and convenience stores. The petitioner claims that it is an affiliate of Prince
Selection, located in Secunderabad, India. The petitioner seeks to employ the beneficiary as the president and
general manager 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 would be
employed by the U.S. entity 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 asserts that the petitioner
acquired a fully operational subsidiary company in August 2006 and already has seven employees. Counsel
provides a brief and additional evidence related to the claimed SUbsidiary'sbusiness activities and employees.
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 10I(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. § 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
EAC 06 189 54058
Page 3
education, training, and employment qualifies him/her 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(l)(3)(v) further provides that ifthe 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 (1)(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.
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.
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
or
EAC 06 189 54058
Page 4
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. Id.
The nonimmigrant petition was filed on June 6, 2006. In a letter dated June 3,2006, the petitioner described
the beneficiary's proposed duties as president and general manager:
[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 [the foreign entity]; (vi) developing and
implementing plans to ensure [the petitioner's] profitable operations; 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 anticipates hiring four to six employees. The petitioner provided a
proposed organizational chart indicating that the beneficiary would supervise an operations manager, who, in
turn, would supervise a sales and marketing manager and a manager-retail. The organizational chart also
included a purchase agent who would report to the sales and marketing manager, and assistant managers and
cashiers who would report to the retail manager. The petitioner provided brief position descriptions for each
of the proposed positions. The AAO notes that-the position descriptions provided for the positions of sales
and marketing manager, store manager and assistant managers are all essentially the same. The "operations
manager" position description indicates that this employee will "research, compile and analyze statistical data
to determine feasibility of buying merchandise for retail wireless stores." However, the petitioner does not
indicate that it intends to operate retail wireless stores. 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. MatterofHo, 19 I&N Dec. 582, 591 (BIA 1988).
-,.-.----------,.------------------------------1
EAC 0618954058
Page 5
The petitioner did not submit a business plan, evidence of the size of the investment in the U.S. company,
evidence of the organizational structure of the foreign entity, or any recent financial documentation for the
foreign entity. See generally 8 C.F.R. § 214.2(l)(3)(v).
The director issued a request for evidence on September 25, 2006, in which he advised the petitioner that
additional evidence would be necessary to show how the new company will require the services of a bona fide
manager or executive within one year. The director acknowledged the submitted organizational chart and
position descriptions for the proposed employees, but observed that "it does not seem plausible that the nature
of your company, a gas station, would be such that these individuals will be bona fide managers or
professionals." The director requested a detailed explanation "outlining how the duties of each of these
employees are truly managerial or require the expertise of a professionaL" Finally, the director requested that
the petitioner provide copies of educational credentials for any employees who had already been hired.
In a response dated November 15,2006, counsel for the petitioner emphasized that eligibility for the L-l visa
classification is not limited to large U.S. companies or to beneficiaries with extensive supervisory
responsibilities. Counsel referenced the regulations governing new office petitions and stated that the
petitioner need only establish that it has secured sufficient physical premises for the office, that the
beneficiary was employed in a qualifying capacity with a qualifying entity overseas for at least one year, and
that the start-up company will support an executive or managerial capacity within one year of the petition's
approval. Counsel noted that "this final requirement is typically shown through a detailed business plan for
the U.S. start up."
Counsel further described the beneficiary's duties as follows:
[The beneficiary] is responsible for all our planning, expansion, banking, budgeting, and
marketing. In addition, he hires and trains other managers and employees and is incharge
[sic] 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.
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 and are consistent with Sec.
101(a)(44)(A) and (B) ofthe Immigration and Nationality Act.
Counsel emphasized that pursuant to section 101(a)(44)(C), the petitioner's reasonable needs must be
considered in conjunction with the company's purpose and stage of development. The petitioner also re­
submitted the position descriptions previously provided for the beneficiary and other proposed employees, as
well as its proposed organizational chart.
EAC 0618954058
Page 6
In response to the director's request for photographs of the interior and exterior of the petitioner's business
premises, the petitioner submitted photographs of what appears to be a fully operational gas station and
convenience store, but did not indicate the location of the store or provide evidence that it had hired any
workers.
The director denied the petition on January 9, 2007, concluding that the petitioner failed to establish that the
beneficiary would be employed in a primarily managerial or executive capacity within one year. The director
determined that the beneficiary's proposed. subordinate employees would not be managers or professionals.
The director further found that the petitioner's business "does not appear to require a bona fide manager or
executive who would perform the tasks you have listed on a fulltime basis. Rather it appears that he would be
engaged in the non-managerial, day-to-day operations of your establishment."
On appeal, counsel reiterates the beneficiary's previously provided position description and arguments made
in response t ceo Counsel asserts that the petitioner acquired the majority of
the shares of " a Texas co oration engaged in the operation of a gas station
and convenience store doing business as 'n August 2006. Counsel states that the
petitioner has seven employees and expects gross revenues 0 1.5 million for its first fiscal year.
In addition, counsel asserts that the beneficiary supervises a vice president and operations manager,_
~ho has a bachelor's degree. In support of the appeal, the petitioner submits a certificate of
incorporation for copies of occupational licenses, bank statements and utility
bills for this company, and evidence of payments to its employees in the form of 2006 IRS Forms W-2, Wage
and Tax Statements, and its Texas quarterly wage report for the fourth quarter of 2006. As evidence of the
petitioner's ownership of the claimed the petitioner submits the minutes from
a meeting held on August 8, 2006 whereby it was agreed that the beneficiary would be the president of the
corporation, and greed to resign as president and serve as vice president. According
to the meeting minutes, the company agreed to sell 50% of its stocks to the petitioning company.
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.
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. § 2l4.2(l)(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
EAC 06 189 54058
Page 7
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. § 214.2(l)(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), afJ'd, 905 F. 2d 41 (2d. Cir. 1990); Aryr
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 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. Sava, 724 F. Supp. at 1108.
The petitioner also addresses the beneficiary's responsibility for "developing, organizing, and establish 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 gas station and convenience store. 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 ofa 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
EAC 06 189 54058
Page 8
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.
Upon review, the supporting evidence does not provide a clear explanation of the petitioner's proposed hiring
plan. The AAO assumes that the petitioner anticipates operating a single gas station and convenience store by
the end of its first year of operations. The petitioner initially indicated on Form 1-129 that it intended to hire
four to six workers. However, the organizational chart submitted suggests a total of nine or more employees
will be hired, including a total of at least six managers (the beneficiary, the operations manager, the sales and
marketing manager, the store manager, and two or more assistant managers.) In a smaller company, there is a
significant difference between a staff of four employees and a staff of nine employees in terms of the impact it
has on the beneficiary's ability to remove himself from involvement in the day-to-day operations of the
business. 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 ofHo, 19 I&N Dec.
582, 591-92 (BIA 1988). Given the discrepancy, the AAO will not accept the organizational chart alone as
evidence of the petitioner's likely staffing levels at the end of one year of operations. Furthermore, the
petitioner's stated need for six or more managers and as few as three lower-level employees is not entirely
plausible given the nature of the petitioner's business.
The AAO's analysis of this issue is severely restricted by the petitioner's failure to submit a 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 ofHo 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
therefore. Most importantly, the business plan must be credible.
EAC 0618954058
Page 9
Id.
In this matter, 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 lease for physical premises of unidentified size and
type, and evidence that the company has approximately $30,000 in the bank 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. 158, 165 (Comm. 1998) (citing Matter
ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
The AAO does not doubt that the beneficiary will have the appropriate level of authority over the petitioner's
business as its president and sole shareholder. However, the definitions of executive and managerial capacity
have two separate requirements. 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). The test is basic to ensure that a person not only has the requisite authority, but that a majority of his
or her duties are related to operational or policy management, not to non-managerial and non-executive
duties.
The AAO acknowledges the evidence submitted on appeal and counsel's contention that the petitioner is
currently doing business through a subsidiary company that employs seven people. The evidence submitted
on appeal is not persuasive for two reasons. First, the petitioner claims that the acquisition of the subsidiary
occurred in August 2006. If this were the case, then it is reasonable to assume that the petitioner would have
mentioned such acquisition when responding to the director's request for evidence in November 2006, as such
evidence would have strengthened the petitioner's claim that the business would quickly expand. No mention
of the claimed subsidiary company, , was made at that time, which raises
questions as to when or if the acquisition actually occurred. Moreover, where a petitioner has been put on
notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the
AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764
(BIA 1988); see also Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the
submitted evidence to be considered, it should have submitted the documents in response to the director's
request for evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency of
the evidence submitted on appeal.
EAC 06 189 54058
Page 10
Furthermore, the petitioner has not documented its claimed 50 percent ownership interest in Aman and Sam
International, Inc. Although the minutes of a meeting allegedly held on August 8, 2006 indicate that the
company agreed to sell 50 percent of its stock to the petitioning company, the petitioner has not identified the
purchase price, provided evidence of a payment from the petitioner to the claimed subsidiary company for the
stock, or provided copies of the claimed subsidiary's stock certificates or stock transfer ledger to corroborate
its claim that the acquisition actually occurred. Again, going on record without supporting documentary
. evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici,
22 I&N Dec. at 165.
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. The petitioner has not described its anticipated space requirements for its chain of gas
stations/convenience stores. The lease agreement provided in support of the petition does not specify the
amount or type 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 gas station and retail store. The petitioner subsequently provided
photographs of a relatively large office with one workstation and a conference table, described as the
beneficiary's work space, as well as photographs of a Conoco gas station and convenience store. It cannot be
determined whether either of these locations coincides with the lease agreement submitted at the time of
filing, as no street address can be discerned from the photographs. Furthermore, the photographs clearly
depict two separate premises, and only one lease agreement has been submitted. 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(l)(3)(v)(C)(2). The petitioner has submitted evidence that the
company had approximately $29,000 in its bank account as of June 2006. However, the petitioner has not
identified the capitalization requirements of its proposed business. The petitioner indicates that it intends to
operate a chain of retail gas stations and convenience stores, but has not identified the amount of funds needed
to commence doing business in the United States, including funds to purchase or lease real property, purchase
office equipment and inventory, obtain licenses and insurance, pay salaries and wages, and pay other start up
costs associated with the intended U.S. operations. Again, going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici,
22 I&N Dec. 158, 165. For this additional reason, the petition cannot be approved.
It is further noted that the petitioner has not submitted any evidence to establish that the foreign sole
proprietorship owned by the beneficiary is doing business and will continue to do business, as required at 8
C.F.R. § 214.2(1)(l)(ii)(G)(2). Unlike a corporation, a sole proprietorship does not exist as an entity apart
EAC 0618954058
Page 11
from the individual owner. Matter of United Investment Group, 19 I&N Dec. 248 (Comm. 1984). A sole
proprietorship is a business in which one person owns all of the assets and operates the business in his or her
personal capacity. Black's Law Dictionary 1398 (7th Edition). As the beneficiary claims to be the owner and
sole proprietor of the foreign business, the presence of the beneficiary in the United States raises the question
of whether the foreign business will continue to do business abroad. Further, the evidence submitted does not
support a conclusion that the foreign entity has been doing business subsequent to the beneficiary's admission
to the United States as a visitor in June 2005. The one document submitted bearing a 2006 date, a receipt for
a payment to the Municipal Corporation of Hyderabad for the 2005 tax year, appears as if it may have been
altered. Upon careful review, it appears that the foreign entity's receipt for the 2003 tax years has been
photocopied, with new dates added to suggest that the company made a payment in 2006. The document
shows that the receipt for a payment made in March 2006 was issued in April 2005. Doubt cast on any aspect
of the petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in
support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). The AAO is not persuaded
that there is a qualifying organization doing business abroad. For this reason, the petition cannot be approved.
Finally, the evidence of record does not establish that the beneficiary has been employed by the foreign entity
in a primarily managerial or executive capacity, as required by 8 C.F.R. § 214.2(l)(3)(v)(B). The petitioner
indicated that the beneficiary, as managing director of the foreign entity, develops and implements policies,
negotiates service contracts, promotes sales of products and services, oversees client service, implements
marketing strategies, responds to customer inquiries, and directs the preparation and completion of sales
contracts, among other duties. The foreign entity is described as being "engaged in import and distribution of
coat and tailoring material to commercial clients." The petitioner did not provide an organizational chart for
the foreign entity, as required by 8 C.F.R. § 214.2(l)(3)(v)(C), or evidence of its business operations, and it is
unclear what, if any staff, he managed in his previous role. The AAO cannot conclude based on this limited
job description what the beneficiary actually did on a day-to-day basis, nor has it been established that his
marketing, sales and client service responsibilities were managerial in nature. 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. 1103 (E.D.N.V. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The actual duties
themselves reveal the true nature of the employment. !d. at 1108. 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 identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis). 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
EAC 0618954058
Page 12
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.