dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflee ofAdministrative Appeals, MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
PURLTC COPY 
File: EAC 09 006 50197 Office: VERMONT SERVICE CENTER Date: OCT 2 2 2009 
IN RE: 
 Petitioner: 
Beneficiary: 
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) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for the 
specific requirements. All motions must be submitted to the ofice that originally decided your case by filing a 
Form 1-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
vny N,ew 
hief, Administrative Appeals Office 
EAC 09 006 50197 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition and 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 extend the employment of its chief executive officer 
as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 
 1 101(a)(15)(L). The petitioner, a Georgia corporation, operates a gas 
station and convenience store. It claims to be a subsidiary of Unity Agency, located in India. The beneficiary 
was previously granted L-1A classification for a period of one year in order to open a new office in the United 
States and the petitioner now seeks to extend his status for three additional years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in a primarily managerial or executive capacity under the extended petition. 
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 beneficiary 
is employed in a managerial capacity. Counsel states that the petitioning company has opened a second store 
known as "B-Market" and the beneficiary is engaged in the management of a staff of supervisory, 
professional and managerial personnel who relieve him from performing any non-managerial functions 
associated with the operation of both retail locations. Counsel submits a brief and additional evidence in 
support of these assertions. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10l(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. 
EAC 09 006 50197 
Page 3 
(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. 
The regulation at 8 C.F.R. 4 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form I- 129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 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 
function managed; and 
' , EAC0900650197 
Page 4 
(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 from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the nonimmigrant visa petition on October 6, 2008. In a letter dated August 25, 2008, the 
petitioner described the beneficiary's U.S. position as follows: 
[The beneficiary] was employed as International Marketing Manager of [the petitioner] 
during the period of his U.S. assignment. In this position, [the beneficiary] implemented and 
established policies and objectives of [the foreign entity] in the United States, and he is 
researching potential businesses to invest in, setting up a marketing plan for the Parent 
Company's services to attract US clients, and conducting all activities necessary for the 
successful startup of the businesses. As he is promoted to a CEO, he directs and coordinates 
business contracts in the entire operation of the company's market, and develops other 
relevant policies and procedures implementing the overall objective of [the foreign entity]. 
The petitioner submitted supporting documentation indicating that the petitioner is operating a convenience 
store and gas station known as "B-Mart" in Corinth, Mississippi. The petitioner submitted copies of its 
Mississippi Forms UI-3, Quarterly Wage Report, for the first two quarters of 2008, which reflected payments 
of salaries or wages to four employees. 
The director issued a request for additional evidence (RFE) on October 20, 2008. The director instructed the 
petitioner to submit, inter alia, the following documentation: (1) evidence to establish the duties performed by 
the beneficiary during the last year and the duties he will perform if the petition is extended; (2) an 
organizational chart for the U.S. entity; (3) complete position descriptions for the beneficiary's subordinates, 
including a breakdown of the number of hours devoted to each of the subordinates' job duties on a weekly 
basis; and (4) copies of the petitioner's IRS Forms W-2, Wage and Tax Statement for 2007. The director also 
requested that the petitioner clarify the nature of the business operated by the beneficiary, noting that the 
EAC 09 006 50197 
Page 5 
evidence submitted does not support the petitioner's statement on Form I- 129 that it operates a pharmaceutical 
company. 
In a letter dated November 24, 2008, counsel for the petitioner clarified that the petitioner originally intended 
to open a pharmaceutical business in the United States, but determined that the venture "would not be 
advantageous." Counsel stated that the petitioner decided to open a gas station/convenience store and 
commenced business operations in April 2008. 
The petitioner submitted an organizational chart depicting the beneficiary as "manager," with three 
subordinates, including a head cashier, a clerk and a cook. The petitioner provided the following description 
for the beneficiary's position as "marketing manager": 
Duties: 
Current (and anticipated for the next 12 months) 
(25% of time) 
Investigate investment opportunities 
Communicate findings to [the foreign entity] 
(60% of time) 
Set up new business venture under aegis of "foreign" company 
Manage new business 
Hire and fire personnel 
Set and revise budgets 
Negotiate contracts 
Accounts Payable 
Maintain financial records for accountant and parent company 
(1 5% of time) 
Prepare work schedules 
Search for and train qualified subordinates to superviselmanage new business venture 
on a day-to-day basis. 
The petitioner also provided brief position descriptions for the beneficiary's subordinates as follows: 
Head cashier 
(99% of time) 
Greet customers and ascertain their needs 
Answer phones 
Handle sales transactions 
Monitor and maintain levels of products on display in store 
Receive orders (when manager is not in office) 
' EAC 09 006 50197 
Page 6 
(1% of time) 
General cleaning and stocking 
Clerk 
(98% of time) 
Stock shelves 
Monitor ice machine 
Ensure all beverage machines are operable. . . 
Maintain cleanliness of store floors 
Maintain cleanliness of gas pump area 
Empty trash receptacles 
(2% of time) 
Handle sales transactions 
Cook 
(1 00% of time) 
Food Preparation 
Food Service 
Maintain cleanliness of kitchen area. 
The director denied the petition on December 12, 2008, concluding that the petitioner failed to establish that 
the beneficiary will be employed in a primarily managerial or executive capacity under the extended petition. 
In denying the petition, the director determined that the petitioner failed to establish that the beneficiary 
would manage an essential function of the organization or that he would supervise and control a subordinate 
staff of supervisory, managerial or professional staff who would relieve him from performing the non- 
managerial functions of the business. 
On appeal, counsel for the petitioner asserts that the beneficiary has "total authority over the company and all 
of its activities and employees," "has discretionary supervision of the company's day-to-day activities," and 
"controls and supervises the work of other employees, including managerial employees." Counsel notes that, 
at the time the petitioner responded to the director's request for evidence, the beneficiary was focused on the 
business known as "B-Mart." Counsel asserts that the petitioner also operates "B-Market" and that the 
beneficiary is now responsible for managing additional employees and undertaking additional managerial 
duties. 
Counsel claims that the petitioner's employees work at both stores as needed and asserts that the petitioner 
employs an assistant manager in addition to the employees previous mentioned. Counsel contends that the 
subordinate employees perform the tasks necessary to operate the stores and the beneficiary is "free to pursue 
other business matters and opportunities that greatly add to the organization." 
In support of the appeal, the petitioner submits documentation related to the business known as "B-Market," 
including: (1) a license issued to the beneficiary by the City of Corinth on June 26, 2008, to operate B- 
EAC 09 006 50 197 
Page 7 
Market, located at 105 S. Harper Road in Corinth, Missississippi; (2) a lease agreement between the petitioner 
and Shriganesh, LLC for a "B-Mart" store located at 1058 Proper Street in Corinth, Mississippi, with a five- 
year term commencing on June 10, 2008; (3) copies of invoices and bills issued to B-Market, dated between 
August and December 2008; and (4) copies of pay stubs for the petitioner's employees for the months of 
October, November and December 2008. The individual who is claimed to be employed as "assistant 
manager" appears to have been hired at the end of November 2008, as the evidence shows that she received 
her first weekly paycheck on December 5,2008. 
Upon review, and for the reasons stated herein, the AAO concurs with the director's determination that the 
petitioner failed to establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
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(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. Beyond the required 
description of the beneficiary's job duties, USCIS reviews the totality of the record, including the number and 
types of subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. 
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary devotes 25 percent of his time to "investigate business opportunities," but it has offered no 
further information regarding the specific tasks involved within this broad responsibility, such that they could 
be classified as managerial or executive in nature. The petitioner further states that the beneficiary spends a 
substantial portion of his time to "manage new business." 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 proposed activities in the course of her 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. The beneficiary's 
"control," management or direction over a company cannot be assumed or considered "inherent" to his 
position merely on the basis of the beneficiary's job title, placement on a general organizational chart or 
broadly-cast business responsibilities. 
Furthermore, the AAO notes that the beneficiary's responsibility to "negotiate contracts" is not defined, and 
the beneficiary's responsibilities for accounts payable and maintaining financial records appear to be 
bookkeeping tasks, rather than qualifying managerial tasks. The definitions of executive and managerial 
capacity each have two parts. First, the petitioner must show that the beneficiary performs the high-level 
responsibilities that are specified in the definitions. Second, the petitioner must prove that the beneficiary 
primarily performs these specified responsibilities and does not spend a majority of her time on day-to-day 
functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
While it appears that the beneficiary exercises the requisite authority over the U.S. company as its chief 
EAC 09 006 50 197 
Page 8 
executive officer and shareholder, the vague position description provided falls significantly short of 
establishing that the beneficiary's primary duties are managerial or executive in nature. 
Furthermore, contrary to counsel's assertion on appeal that the beneficiary supervises a subordinate staff 
comprised of managers, professionals and supervisors, a review of the totality of the record does not support 
this claim. The regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(D) requires the petitioner to submit a statement 
describing the staffing of the new operation, including the number of employees and types of positions held 
accompanied by evidence of wages paid to employees. The petitioner has established that it employed three 
individuals in addition to the beneficiary at the time the petition was filed: a "head" cashier, a clerk and a 
cook. While counsel claims on appeal that the beneficiary supervises subordinate managers, the AAO notes 
that the sole claimed "assistant manager" was hired subsequent to the filing of the petition. 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). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that a "first line supervisor is not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are professional." Section 
lOl(a)(44)(A)(iv) of the Act; 8 C.F.R. 5 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 5 214,2(1)(1)(ii)(B)(3). 
Based on the position descriptions submitted for the beneficiary's three subordinates and their placement on 
the petitioner's organizational chart, it is evident that none of them are serving in supervisory, managerial or 
professional positions.1 The beneficiary serves as a first-line manager to all three employees and does not 
qualifL as a "personnel" manager based on his supervision of three non-professional staff. 
' In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10 l(a)(32) of the Act, 8 U.S.C. 5 1 101 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
EAC 09 006 50197 
Page 9 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a detailed position description that explains duties to be 
performed in managing the essential function, i.e. identifies the function with specificity, articulates the 
essential nature of the function, and establishes the proportion of the beneficiary's daily duties attributed to 
managing the essential function. See 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the 
duties related to the function. 
Other than ambiguously referring to the beneficiary's authority to "investigate business opportunities" and 
"manage new business," the petitioner has not claimed that the beneficiary manages an essential function of 
the company. Furthermore, as discussed, inpa, the petitioner has not provided a detailed description of the 
beneficiary's actual job duties, nor has it provided a credible claim regarding the amount of time the 
beneficiary devotes to managerial versus non-managerial duties. The fact that the beneficiary manages a 
business does not necessarily establish eligibility for classification as an intracompany transferee in a 
managerial or executive capacity within the meaning of section 101(a)(15)(L) of the Act. See 52 Fed. Reg. 
5738, 5739 (Feb. 26, 1987). The petitioner has neither articulated nor substantiated a claim that the 
beneficiary qualifies as a function manager. 
Finally, the AAO observes that the petitioner's staffing levels, considered in light of the nature of the business, 
further undermine the petitioner's claim that the beneficiary is employed in a primarily managerial or 
executive capacity. A company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See fj 101 (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C). In reviewing the relevance of the number of 
employees a petitioner has, federal courts have generally agreed that USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to support a 
manager." Family Inc. v. US. Citizenship and Immigration Services 469 F. 3d 13 13, 13 16 (9th Cir. 2006) 
(citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003)). 
It is appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non- 
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, I 53 F. Supp. 2d 7, 15 (D.D.C. 200 1). 
The size of a company may be especially relevant when USCIS notes discrepancies in the record and fails to 
believe that the facts asserted are true. Id. Furthermore, in the present matter, the regulations provide strict 
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary to perform the duties of a convenience store clerk, cashier or cook, who are the 
beneficiary's only subordinates. 
EAC 09 006 50197 
Page 10 
evidentiary requirements for the extension of a "new office" petition and require USCIS to examine the 
organizational structure and staffing levels of the petitioner. 
 See 8 C.F.R. 5 214.2(1)(14)(ii)(D). 
 The 
regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of 
approval of the petition to support an executive or managerial position. There is no provision in USCIS 
regulations that allows for an extension of this one-year period. If the business does not have sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and administrative 
tasks, the petitioner is ineligible by regulation for an extension. 
Prior to the director's decision, the petitioner indicated that it is operating a gas station and convenience store 
known as "B-Mart." On appeal, counsel asserts that the petitioner now operates a second store known as B- 
Market. As noted above, the AAO would normally not consider the beneficiary's duties associated with a 
store that opened subsequent to the filing of the petition. The petitioner must establish eligibility at the time of 
filing the nonimmigrant visa petition. 
 Matter of Michelin Tire Corp., 17 I&N Dec. 248. However, the 
evidence submitted on appeal demonstrates that "B-Market" was already doing business at the time the 
petition was filed. For example, the invoices show weekly and monthly invoices for purchase of gasoline, 
cigarettes and groceries beginning in August 2008. Neither counsel nor the petitioner has explained why the 
petitioner claimed to operate a single store, "B-Mart," at the time the petition was filed. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
It is not evident how one cashier, one clerk and one cook are able to relieve the beneficiary from participating 
in the day-to-day non-managerial duties inherent to operating two convenience stores. Given the nature of the 
businesses, it is likely that both stores are open for ten hours daily, including weekends Although the 
petitioner claims that the employees work at both stores and split their time between the stores as needed, the 
petitioner has not explained, for example, how one cashier can work in two stores seven days per week during 
all of both stores' operating hours. Since the employees cannot be in two places at one time, it is reasonable 
to question whether the beneficiary is required to perform duties normally performed by his subordinates in 
order to ensure that both stores are able to remain open for business. The petitioner has also not indicated that 
any of the subordinate employees are responsible for purchasing inventory for the stores. Collectively, this 
brings into question how much of the beneficiary's time can actually be devoted to managerial or executive 
duties. 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 (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology Int 'I., 19 I&N Dec. 593,604 (Comm. 1988). 
In addition, the petitioner has submitted on appeal a lease for a second "B-Mart" store located in Corinth, 
Mississippi. The lease agreement was signed in June 2008, and the petitioner has offered no explanation or 
other documentation related to this third store. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofjci, 22 I&N 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). If the petitioner is operating this store in addition to the other two stores, then the beneficiary's 
EAC 09 006 50197 
Page 11 
subordinate staff of three would be even less equipped to relieve him from performing the non-managerial 
duties associated with the business. 
The petitioner indicates on appeal that the petitioner has hired an additional employee and intends to open 
additional retail locations in the future. However, 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). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the record does not contain sufficient evidence that the petitioner has 
been engaged in the regular, systematic, and continuous provision of goods and/or services in the United 
States for the entire year prior to filing the petition to extend the beneficiary's status. The petitioner claims 
that it has been doing business since April 2008. The petitioner signed a lease for its "B-Mart" store which 
had a commencement date of May 1, 2008. However, the beneficiary's previous petition was approved in 
October 2007 of that year. Thus, pursuant to the regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(B), the petitioner is 
expected to submit evidence that it has been doing business since the date of the approval of the initial 
petition. In this case, the beneficiary had to obtain a visa abroad and he was admitted to the United States in 
November 2007. There is no evidence that the petitioner was doing business between November 2007 and 
April or May of 2008. For this additional reason the petition may not 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). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997,1002 n. 9 (2d Cir. 1989). 
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. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003). 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.