dismissed L-1A Case: Retail

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
p\JBLICCOPY
File: EAC 07 072 50213 Office: VERMONT SERVICE CENTER Date: FEB 0 8 2008
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office .
.. ~.....__.__.
,/' ~
Itobert. . mann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 07 072 50213
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 manager
to be employed at a new office in the United States as an L-IA nonimmigrant intracompany transferee
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(15)(L). The petitioner, a limited liability company organized under the laws of the State of Florida,
is allegedly in the lingerie business.
The director denied the petition concluding that the petitioner failed to establish (1) that the United States
operation will support an executive or managerial position within one year; or (2) that the petitioner is a bona
fide enterprise doing business in the United States.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the petitioner has established
that the beneficiary will perform qualifying duties within one year of petition approval for a bona fide
business enterprise.
To establish eligibility for the L-l 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. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
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
EAC 07 072 50213
Page 3
same work which the alien performed abroad.
In addition, the regulation at 8 C.F.R. § 214.2(1)(3)(v) 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 (1)(1)(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.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § ll01(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
EAC 07 072 50213
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(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. § 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 from higher level executives, the board
of directors, or stockholders of the organization.
The first issue in this matter is whether the intended United States operation, within one year of the approval of
the petition, will support an executive or managerial position.
In support of the petition, the petitioner submitted an undated "business plan" in which the petitioner
generally describes its existing business as a lingerie and pajama retailer located in a flea market in Florida.
The business appears to be operated by the beneficiary and his "partner," Emily Ben-Ezri. The petitioner
explains its projected business growth as follows:
In the future [the petitioner] would also like a larger store so that [it] would have more room
to display [the] merchandise. In addition, [the petitioner] would like to establish better lines
of credit with a financial institution so that [it does] not have as many financial restrictions
when purchasing equipment for business expansion. [The petitioner] would also like to be
involved with more types of advertising media.
The petitioner also submitted an organizational chart showing the beneficiary supervIsmg an assistant
manager ( a secretary, and five "projected" employees, and a document titled "Objectives,
Goals & Time Tables Projection for 2007" in which the petitioner provides a month-by-month projection of
its growth. The petitioner projects, without providing any analysis or corroborating data, that during 2007 it
will "acquire more stores in different counties," hire additional employees, and market its business.
Finally, the petitioner describes the beneficiary's proposed duties in an undated letter appended to the petition:
• [P]lans, develops, [and] set[s] goals, policies and objectives of business organization
in accordance with board directives and corpora[te] charter: confers with company
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official to plan business objectives, to develop organizational policies to coordinate
functions and operations between divisions and departments.
• Reviews activity reports and financial statements to determine progress and status in
attaining objective and revises objectives and plans, in accordance with current
conditions.
• Directs and coordinates formulation of financial programs to provide funding for new
or continuing operations to maximize returns on investments and to increase
productivity.
• Develop public relation policies, designed to improve company's image and relations
with customers, employees and the public.
• Develop and implement unique and highly specialized service programs for the
company[.]
• Hire and train employees.
On January 26, 2007, the director requested additional evidence. The director requested, inter alia, evidence
establishing that the United States operation will grow to a sufficient size to support a managerial or executive
position within one year; evidence that the beneficiary will be relieved from performing non-qualifying duties
within one year; position descriptions for the prospective employees; a copy of the petitioner's business plan;
and evidence of the funding of the United States operation.
In response, the petitioner submitted a document providing the following explanation addressing how the
United States operation will grow to relieve the beneficiary from performing non-qualifying duties:
The executive upon approval of the L-l visa will transfer his daily operations which seeking
lingerie bargains and sorting out the products, pricing and marketing the goods, and then
assume a [sic] complete executive duties. The executives are based on the growing of the
company.
The company plans on doing the following to help the company grow:
• My partner and I designed a handout flyer, in order to advertise our company in
which will help bring new customers to the store and show all different kind of new
sales the store offers.
• Correct price so that we would be able to maximize our profit line, and utilize our
profits as well.
• Suit the needs of the customers by finding new and different vendors that also helps
us to maximize our profits.
• Willing to expand my store, so I would have more room to display new merchandise,
and to continue to be involved in product expansions.
The petitioner also submitted a second version of its "business plan." The plan vaguely describes the United
States operation as a newly formed retailer of lingerie located in a flea market in Florida. The plan also
claims that the petitioner opened a "swap shop" in January. The petitioner failed to describe the staffing or
EAC 07 072 50213
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location of the "swap shop," to describe the nature of this business, or to even establish that this line of
business is actually operating.
Finally, the petitioner submitted a description of six projected employees: a secretary, a sales clerk, a
bookkeeper, the beneficiary, an administrator, and an assistant manager. The secretary, sales clerk, and
bookkeeper are described as performing the tasks necessary to provide a service. The administrator is
vaguely described as administering accounts or business activities. The assistant manager
is described as "help[ing] the manager" and as"tak[ing] over for the manager in his/her absence."
On May 7, 2007, 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 and the petitioner'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. § 214.2(l)(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.
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
EAC 07 072 50213
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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 sufficiently describe both the beneficiary's and his subordinates' proposed duties after
the petitioner's first year in operation; has failed to establish that an investment has been made in the United
States operation; and has failed to sufficiently describe the nature, scope, organizational structure, and
financial goals of the new office. 8 C.F.R. § 214.2(l)(3)(v)(C).
First, as correctly noted by the director, the petitioner has failed to 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. § 214.2(l)(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. For example, the petitioner states that
the beneficiary will plan and develop goals, policies, and objectives; direct and coordinate formulation of
"financial programs;" develop public relation policies; and develop "highly specialized service programs."
However, the petitioner did not specifically define these goals, policies, objectives, financial programs, or
"highly specialized service programs." The fact that the petitioner has given the beneficiary a managerial 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 of 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. Sava,
724 F. Supp. 1103 (E.D.N.Y. 1989), ajJ'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Treasure Craft ofCalifornia, 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 perform the non-qualifying tasks inherent to his duties and to the operation of the business in
general. The petitioner failed to specifically describe the duties of the proposed subordinate employees or to
explain how, exactly, these prospective employees will relieve the beneficiary from performing non­
qualifying tasks even though this evidence was requested by the director. 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)(l4). While the petitioner asserts that the beneficiary will "transfer his daily operations" an<;i then
assume "complete executive duties," the record fails to credibly establish who will perform these non-
EAC 07 072 50213
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qualifying tasks or what "executive duties" the beneficiary will assume in the operation of a newly formed,
single-location lingerie retail operation located in a flea market. As the petitioner fails to explain what tasks
the beneficiary and his subordinate staff will perform after the petitioner's first year in operation or to explain
how much time the beneficiary will devote to performing non-qualifying tasks, it cannot be confirmed that he
will be "primarily" employed as a manager or e~ecutive. 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).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
The petitioner has failed to describe any of the proposed subordinate employees as having supervisory or
managerial responsibilities or as being a "professional" employee. Therefore, it cannot be concluded that the
beneficiary will supervise and control other supervisory, managerial, or professional employees, and it
appears that the beneficiary will primarily be, at most, a first-line supervisor of non-professional employees.}
A managerial or executive employee must have authority over day-to-day operations beyond the level
normally vested in a first-line supervisor. See 101(a)(44) of the Act; see also Matter of Church Scientology
International, 19 I&N Dec. at 604. Therefore, the petitioner has not established that the beneficiary will be
employed primarily in a managerial or executive capacity after the petitioner's first year in operation.
Second, the petitioner failed to establish that the United States operation will support an executive or
managerial position within one year because it failed to establish that a sufficient investment was made in the
enterprise. 8 C.F.R. § 214.2(l)(3)(v)(C)(2). In this matter, the record indicates that the United States
enterprise received two wire transfers totaling $5,500.00 and that is had total assets of $5,799.57 on
December 31, 2006. Upon review, absent evidence that the United States operation will generate revenue
during its first months in operation sufficient to support both the maintenance and projected growth of the
business, it is not credible that this meager investment and asset base will be sufficient for the enterprise to
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 within one
year. As the record is wholly devoid of credible evidence establishing that the petitioner is likely to begin
generating revenue sufficient to offset the effects of this limited investment and asset base, the petitioner has
failed to establish that the United States operation will support an executive or managerial position within one
year for this additional reason.
1In 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 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
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Third, the pettttoner 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,
organizational structure, and financial goals of the new office. 8 C.F.R. § 214.2(1)(3)(v)(C)(l). As explained
above, the petitioner's "business plan" vaguely describes the United States operation as a lingerie retailer in a
flea market as well as a "swap shop." However, despite the director's request, the plan fails to specifically
describe the petitioner's proposed products, services, customers, or competitors. The plan also fails to provide
corroborated projections regarding revenue, income, expenses, or financial goals. The record does not
contain any independent analysis, contracts, or other documentary evidence establishing that the business will
be able to hire any of the projected employees. 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)(l4). Absent
a detailed, credible description of the petitioner's proposed United States business operation addressing the
petitioner's proposed products, customers, staffing, and income/expense projections, it is impossible to
determine whether the proposed 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. Accordingly, the petitioner has failed to establish that the United
States operation will support an executive or managerial position within one year for this additional reason.
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. § 214.2(1)(3)(v)(C), and the petition may not be
approved for the above reasons.
The second issue in the present matter is whether the petitioner has established that the petitioner is a bona
fide enterprise "doing business" in the United States and, thus, is a qualifying organization.
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e., one
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section
101(a)(l5)(L) of the Act; 8 C.F.R. § 214.2(1). If one individual owns at least half of the interests in the
petitioner' and the foreign employer, and controls those entities, then the entities will be deemed to be
"affiliates" under the definition. 8 C.F.R. § 214.2(l)(1)(ii)(L). The petitioner must also establish that the
qualifying organization is "doing business." "Doing business" is defined in pertinent part as "the regular,
systematic, and continuous provision of goods and/or services." 8 C.F.R. § 214.2(1)(1)(ii)(H).
As correctly observed by the director, the instant petition is rife with inconsistencies, which undermine its
claim to be a bona fide business entity actively doing business in the United States. For example, the lease
submitted in support of the petitioner contains an address different from the addresses listed in the petition,
the Florida Department of Revenue "Certificate of Registration," and the invoices, which also differ from one
another. The address is the Certificate of Registration is
which appears to be the address of the flea market at which the petitioner asserts it conducts business.
However, the lease is for Unit 10251-B 0 for a "real
estate services" business. Also, while the lease indicates that the petitioner's hours of operation will be 9:00
a.m. to 5:00 p.m., Monday through Friday, and 9:00 a.m. to 1:00 p.m. on Saturdays, the petitioner's written
statement addressing its hours asserts that it will operate from 9:00 a.m. to 5:00 p.m. seven days per week.
EAC 07 07250213
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Furthermore the bank statement submitted as evidence of the petitioner's business activity relate to accounts
owned by I not to accounts owned by the petitioner. Finally, as noted by the director, the
record is devoid of evidence that the petitioner has, or will have, any employees or has filed a tax return.
On appeal, counsel asserts that the "real estate services" office is being used for "administrative work only"
and that the petitioner needed to use a variety of addresses while searching for an appropriate site for its
business operation. Counsel also asserts that the petitioner has filed an extension to file the appropriate tax
returns.
Upon review, the petitioner's explanations on appeal are not persuasive in establishing that the petitioner is a
bona fide business enterprise engaged in "doing business" in the United States. 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). Doubt cast on
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of
the remaining evidence offered in support of the visa petition. Id. at 591. In this matter, while the petitioner
explains on appeal that the "real estate services" office is being used for administrative purposes, the
petitioner nevertheless fails to submit a copy of the lease for its actual place of business, i.e., the lingerie retail
operation and "swap shop." Furthermore, it is simply not credible that the petitioner, a newly formed business
with only approximately $5,000.00 in asserts, would lease both an administrative office and retail space.
In addition to the petitioner's failure to establish that it is actively doing business, the record is not persuasive
in establishing that the petitioner has a qualifying relationship with the foreign entity. In support of the
petition, the petitioner has submitted five "membership certificates" purporting to represent its ownership as a
limited liability company. Certificates 1 and 4 appear to represent ownership of 100 units.
Certificates 2 and 5 appear to represent the beneficiary's ownership of 100 units. However certificate 3
represents the ownership of 50 units ~iary either jointly or in common with
Therefore, the beneficiary owns 40%,_owns 40%, and the beneficiary jointly or in common with
a third party owns 20%. As the petitioner asserts that the beneficiary owns and controls the foreign entity, it
must establish that either the foreign entity or the beneficiary owns and controls the petitioner. In view of the
above described membership certificates, it cannot be concluded that the beneficiary controls the petitioner.
The petitioner fails to explain the level of the beneficiary's control over the 20% ownership interest held with
the third party, It is unknown whether the beneficiary owns a 50% interest in these 50
membership units and, if he does, whether control of this interest has been ceded to the other third party
owner or whether it is shared equally. Absent full disclosure of the circumstances and facts surrounding the
ownership and control of this 20% interest, it cannot be concluded that the beneficiary controls the petitioner.
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 Treasure Craft of California, 14 I&N Dec. 190.
Finally, as the petitioner has also failed to establish that the beneficiary owns and controls the foreign entity,
the petitioner has failed to establish that it has a qualifying relationship with the foreign entity even if it could
be concluded that the beneficiary owns and controls the petitioner and that the petitioner is doing business.
The director specifically requested in the Request for Evidence that the petitioner submit evidence
EAC 07 072 50213
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establishing the ownership and control of the foreign entity. However, the petitioner failed to submit
evidence responsive to this request. 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).
Accordingly, as the record is not persuasive in establishing that it is a bona fide business enterprise actively
"doing business" and which has a qualifying relationship with the foreign entity, the petition may not be
approved for this additional reason.
Beyond the decision of the director, the petitioner has failed to establish that it has secured sufficient physical
premises to house the new office. 8 C.F.R. § 214.2(l)(3)(v)(A).
As explained above, as evidence of it securing sufficient physical
operation, the petitioner has submitted a lease for Unit I0251-B of
Florida for a "real estate services" business. According to counsel, this office is being used for
"administrative work only." However, the petitioner has not submitted evidence that it has secured sufficient
physical premises to house its retail operation in the flea market or elsewhere. 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 Treasure Craft ofCalifornia, 14 I&N Dec. 190.
Accordingly, as the petitioner has failed to establish that it has secured sufficient physical premises to house
the new office's retail operation, 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 has been
employed in a primarily managerial or executive capacity with the foreign entity for one year within the
preceding three years. 8 C.F.R. § 214.2(l)(3)(v)(B). In support of the petition, the petitioner has submitted a
vague and non-specific description of the beneficiary's job duties abroad. 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, af!'d, 905 F.2d 41. Furthermore, the petitioner failed to describe the duties of the
beneficiary's purported subordinates abroad. Absent detailed descriptions of the duties of both the beneficiary
and his purported subordinates, it is impossible for CIS to discern whether the beneficiary was "primarily"
engaged in performing managerial or executive duties abroad. See sections 101(a)(44)(A) and (B) of the Act;
see also Matter ofChurch Scientology International, 19 I&N Dec. at 604.
Accordingly, the petitioner has not established that the beneficiary has been employed in a primarily
managerial or executive capacity for one continuous year in the three years preceding the filing of the petition
as required by 8 C.F.R. § 214.2(l)(3)(v)(B), and the petition may not be approved for this reason.
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon
completion of the temporary assignment in the United States. 8 C.F.R. § 214.2(l)(3)(vii).
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Page 12
In this matter, the petitioner claims to be owned and controlled by the beneficiary. As a purported owner of
the petitioner, the petitioner is obligated to establish that the beneficiary's services will be used for a
temporary period and that he will be transferred to an assignment abroad upon completion of the assignment.
Id. However, the record is devoid of any evidence establishing that the beneficiary's services will be used
temporarily. 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 of Treasure Craft ofCalifornia, 14 I&N Dec. 190).
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary
assignment in the United States, 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), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
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. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.