dismissed L-1A Case: Retail And Wholesale

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
b 7 
File: SRC 03 1 12 53296 Office: TEXAS SERVICE CENTER Date: fl *. ,;, + 
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. 
;bert P. Wiemann,  idt tor 
dministrative Appeals Office 
SRC 03 1 12 53296 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
.e 
The filed this nonimmigrant petition seeking to extend the employment of its executive manager as 
an L-1 A nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. tj 1 101(a)(15)(L). The petitioner is a corporation organized in the State of 
Texas that claims to operate an import, wholesale and retail clothing business, a Super Tire business, and a 
pizza restaurant. The petitioner claims that it is the subsidiary of Al-Hijjawi Factory for Readymade located in 
Amman, Jordan. The beneficiary was initially granted a one-year period of stay in L-IA status in order to 
open a new office in the United States, and the petitioner now seeks to extend his stay for three years. 
The director denied the petition concluding that the petitioner did not establish: (1) that the petitioner had 
been doing business for the year preceding the filing of the petition; or (2) that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity; 
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. Counsel for the petitioner filed the Form I-290B Notice of 
Appeal on August 1 1,2004, indicating that he would send a brief and/or evidence to the AAO within 30 days. 
As no additional evidence had been incorporated into the record, the AAO contacted counsel by facsimile on 
November 16,2005 to request that counsel acknowledge whether the brief andfor evidence was subsequently 
submitted, and, if applicable, to afford counsel an opportunity to re-submit the documents. Counsel provided 
a brief on November 17, 2005, but failed to provide the requested evidence to show that the brief had been 
timely submitted to the AAO. Counsel sent a second facsimile transmission to the AAO on November 17, 
2005, indicating that additional evidence would be mailed with the brief. As of this 'date, no additional 
documentation has been received from counsel or the petitioner. The regulations do not allow a petitioner an 
open-ended or indefinite period in which to supplement an appeal once it has been filed. The AAO will 
accept counsel's brief, but will not allow additional time for the petitioner to submit evidence in support of 
the appeal. The record is now considered complete. 
On appeal, counsel for the petitioner asserts that the denial of the instant petition was inappropriate because 
the beneficiary has worked continuously in a managerial and executive capacity and has ensured that the 
petitioner continues doing business in the United States. Counsel emphasizes that the beneficiary has 
established three businesses in the United States and has directly managed the operations of one of these 
businesses "for the past few years." Counsel asserts that the director erred by requiring that the beneficiary 
supervise other managers or professionals and objects to the director's conclusion that the beneficiary would 
have to engage in the day-to-day business activities of the company. Counsel further contends that the 
director inappropriately required the petitioner to establish that the beneficiary would perform exclusively, 
rather than primarily, managerial or executive duties. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
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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 
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. $ 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 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifytng 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. 
SRC 03 1 12 53296 
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The first issue in this matter is .whether the petitioner has established that it has been doing business for the 
year preceding the filing of the petition as required by 8 C.F.R. § 214.2(1)(14)(B). 
The regulation at 8 C.F.R.9 214.2(1)(l)(ii)(H) states: "Doing business means the regular, systematic, and 
continuous provision of goods andlor services by a qualifjring organization and does not include the mere 
presence of an agent or office of the qualifying organization in the United States and abroad." 
The petitioner must therefore establish that the U.S. company has been doing business since the approval of 
the initial "new office" petition on March 12, 2002. In a March 7, 2003 letter, the petitioner stated that the 
U.S. company intended to establish "different wholesale, retail and importlexport operations," and indicated 
that, since his arrival in the United States, the beneficiary had started an importlexport business, a pizza store 
and a Super Tire business. 
In support of the petition, the petitioner submitted: the petitioner's articles of incorporation filed with the 
Texas Secretary of State on January 3, 2002; a lease for an 1100 square foot retail clothing store that lists the 
beneficiary as tenant; a Certificate of Ownership for Unincorporated Business or Profession filed by the 
beneficiary with the county clerk of Dallas that he would do 
business as a sole proprietor under the "; invoices, import and 
customs documentation for apparel shipped to and June 2002 
(four shipments in total); bank statements for ' dated January 
through December 2002; a certificate of occupancy for "Super Tires" dated March 26,2002, and a lease for - m - 
the Super Tires business premises identifying the beneficiary and another individual, as 
tenants; a Certificate of Ownership for Unincorporated Business or Professional filed by the beneficiary with 
the county clerk of Dallas County, Texas in November 2002, indicating that he would do business as a sole 
proprietor under the assumed name df "Mega-Riffic Pizza" at the address listed on the lease for the retail 
clothing store; and, a Texas sales and use tax permit for "Nepton Mega Riffic Pizza" issued in February 2003. 
The director requested additional evidence on June 2, 2003, in part instructing the petitioner to submit: (1) 
evidence conducted by the petitioner and the two other U.S. companies during the past year such as sales 
contracts, invoices, shipping receipts, and orders; (2) evidence of the funding or capitalization of the 
petitioner's Super Tire business and pizza restaurant, such as copies of wire transfers showing transfers of 
funds from the foreign organization, evidence of financial resources committed by the foreign entity, copies 
of bank statements, and profit and loss statements or other accountants reports; (3) documentary evidence 
establishing that the petitioner, Nepton International Co., Inc., the Super Tire business, and the pizza store are 
one and the same, or documentation to show the relationship between the businesses; (4) documentary 
evidence to establish the current ownership and control of the petitioner, the Super Tire store, the pizza 
restaurant, and the foreign entity; (5) copies of the three businesses' state quarterly tax returns for 2002 and 
the first quarter of 2003; (6) copies of quarterly wage reports for all employees from 2002 to present; (7) 
evidence to establish when the pizza restaurant and tire business commenced business operations; and (8) 
copies of current leases for the three U.S. businesses. 
In a response received on December 24, 2004, the petitioner submitted copies of the same invoices and bank 
statements submitted in support of the initial petition. The petitioner also submitted the beneficiary's personal 
SRC 03 1 12 53296 
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bank statements showing various wire transfers from the claimed proprietor of the foreign entity to the 
beneficiary. The petitioner's response also included: tax payment receipts showing that the beneficiary 
submitted quarterly sales and use tax payments for the first three quarters of 2003; a profit and loss statement 
showing that the petitioner had no income in 2002; the petitioner's Form SS-4, Application for Employment 
Identification Number, prepared on November 7, 2003; the petitioner's Texas Employer's Quarterly Report 
and IRS Form 941, Employer's Quarterly Federal Tax Return, for the third quarter of 2003, showing wages of 
$2,025 paid to two employees; the petitioner's 2002 Texas Corporation Franchise Tax Report; and two copies 
of the petitioner's purported 2002 IRS Form 1120, U.S. Corporation Income Tax Return, which include 
identical information but for the employer identifying number which is shown as 80-0010194 on one form 
and as 20-0372088 on the other form. The petitioner re-submitted copies of evidence previously provided 
with respect to the pizza restaurant and Super Tires business, and provided a new lease for the pizza restaurant 
which identifies the tenant as the beneficiary "dba Nepton International CO." The lease term commenced on 
June 1,2003. The petitioner provided a copy of the expired lease for the retail clothing store. 
The director denied the petition on June 12, 2004 concluding that the petitioner had not established that the 
company was doing business for the previous year as defined at 8 C.F.R. § 214.2(l)(ii)(H). The director 
observed that the evidence submitted shows that the petitioner conducted business transactions in 2001, three 
transactions in 2002, and no business transactions in 2003. The director therefore determined that the 
petitioner had not conducted business operations for the previous twelve months. The director also 
acknowledged the petitioner's claim that the beneficiary is involved in two other business ventures, but noted 
that the petitioner had failed to provide evidence of the qualifying relationship of the businesses, evidence that 
the two businesses are operational, and evidence pertaining to the beneficiary's role in the various businesses. 
On appeal, counsel for the petitioner asserts that the petitioner has "regularly, systematically and continuously 
provided goods and services" and summarizes the petitioner's business operations as follows: 
Nepton received its first shipment of Jordanian clothes in October of 2001, which [the 
beneficiary] then promptly distributed to local merchants. Nepton received a second shipment 
in February of 2002 and sold some of the clothes in a small boutique, as well as distributing 
to local vendors. . . . Nepton formed "Super Tires" in Garland, Texas in March of 2002, and 
"Mega-riffic Pizza" in Richardson, Texas in November of 2002. [The beneficiary] executed 
lease agreements for both enterprises on Nepton's behalf, obtained certificates of occupancy 
fkom the local authorities, hired and trained employees, and generally oversaw the operation 
of Nepton's various enterprises. 
[The beneficiary] formed another restaurant, "Sicilian Pizza," in Dallas, Texas in August 
2003. 
Counsel concludes: "It is clear that since November of 2001, [the petitioner] has steadily and 
sequentially increased the amount of goods and services it provides to the marketplace." 
Upon review, the petitioner has not established that it was doing business at any time during the year 
preceding the filing of the instant petition. As a preliminary matter, the AAO notes that while the petitioner 
SRC 03 1 12 53296 
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in this matter, Nepton International Company, Inc., is incorporated in the State of Texas, nearly all of the 
documentation in the record of proceeding pertains to the beneficiary doing business as a sole proprietor 
under the assumed name The evidence suggests that the beneficiary 
regstered as a sole proprietor in September 2001 and began to import goods from Jordan, incorporated a legal 
entity in order to provide evidence of a qualifying organization in the United States for L-1 visa purposes, and 
continued to operate as a sole proprietor following approval of the new office petition in March 2002. For 
example, all of the submitted leases identifqi the beneficiary, not the petitioner, as tenant. The petitioner's 
claimed business is achlally another assumed name used by the beneficiary rather than 
an asset ar holding of the petitioner. There is evidence that the beneficiary paid sales and use taxes as a sole 
proprietor in 2003. Further, the IRS employer identification number indicated for the petitioner on the 1-129 
petition is actually the taxpayer number assigned by the State of Texas to the beneficiary doing business as 
Mega-Riffic Pizza. The record shows that the petitioning company did eventually apply for an IRS 
employment identification number, but not until November 2003, eight months after this petition was filed. 
Based on the evidence of record, the AAO must conclude that at the time of filing and for the year preceding 
the filing the petition, the petitioner was a "shell company" that was not conducting business in a regular and 
continuous manner. A corporation is a separate and distinct legal entity from its owners or stockholders. See 
Matter of M, 8 I&N @uc. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N 
Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). The petitioner 
cannot show that it was doing business through a sole proprietorship owned by one of its claimed 
shareholders. 
Regardless, the director correctly observed that there was insufficient evidence of business conducted by the 
petitioner or its claimed tire store or pizza restaurant in the year preceding the filing of the petition. The 
director specifically requested evidence to establish when the various businesses began to operate and the 
petitioner failed to submit the requested evidence in response. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. tj 103.2@)(14). 
Further, the non-existence or other unavailability of required evidence creates a presumption of ineligibility. 
8 C.F.R. tj 103.2@)(2)(i). 
Rather, the evidence submitted showed that the petitioner had no income in 2002 and did not pay wages to 
any employees until three months after the petition was filed. At most, the evidence reflects that the 
beneficiary may have done business as a sole proprietor in 2003, based on evidence that he paid sales and use 
taxes. On appeal, counsel merely asserts that the petitioner has been continuously doing business since 
November 2001. Without documentary evidence to support the claim, the assertions of counsel will not 
satisfL the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The petitioner has not submitted evidence on appeal to overcome the director's determination on this issue. 
For this reason, the appeal will be dismissed. 
The second issue in the present matter is whether the beneficiary will be employed by the United States entity 
in a managerial or executive capacity. 
SRC 03 1 12 53296 
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Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101 (a)(44)(B), defines the term "executive capacity" as 
an assignment within an organization in which the employee primarily: 
(i) Directs the management of the organization or a major component or function of the 
organization; 
(ii) Establishes the goals and policies of the organization, component, or function; 
(iii) Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petition was submitted on March 13, 2003. In its March 7, 2003 letter, the petitioner provided the 
following description of the beneficiary's duties: 
As Executive Director for [the petitioner], [the beneficiary] formulated and implemented all 
corporate goals and policies, both executive and managerial. As such, [the beneficiary] 
focused primarily on establishing the joint venture by networking with other business 
professionals and analyzed and considered various business prospects. As the company plans 
developed and various business enterprises were acquired and developed, [the beneficiary] 
was concentrating on the long-range goals of the company and directed the company to 
successful achievement of those goals. 
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The petitioner indicated its number of employees on Form 1-129 as "4 (estimated)." 
The director requested additional evidence on June 2, 2003, in part instructing the petitioner to provide more 
information regarding its various businesses, and evidence of wages paid to employees by each business from 
2002 through the first quarter of 2003. 
In a response dated December 19,2003, former counsel for the petitioner provided the following information 
regarding the beneficiary's proposed duties under the extended petition: 
In this position, the Beneficiary will be responsible for formulating and implementing 
corporate policy and goals, both executive and managerial. The beneficiary will focus 
primarily on establishing the joint venture by networking with other identified and chosen 
business enterprises to establish andlor invest in, and he will hire and train a qualified staff to 
fill different positions with the company. The Beneficiary will be working 40-50 hours 
weekly divided as follows: 
20-25 hours weekly developing various business enterprises, formulating corporate 
policy and goals, and directing the company to the successful attainment of these 
goals; 
10-1 5 hours weekly training and supervising his co-workers; 
8- 10 hours weekly in administrative duties; 
Counsel provided a simple organizational chart showing that the beneficiary would supervise two employees 
identified as "Kitchen" and "Driver." The petitioner submitted its quarterly wage report for the third quarter 
of 2003 only, which confirms the employment of the two employees named on the organizational chart for the 
months of July, August, and September 2003. The lutchen worker received wages of $975 and the driver 
received wages of $1,050 during this time period. The petitioner did not provide the requested quarterly wage 
reports for 2002 and the first quarter of 2003. 
The director denied the petition on June 12, 2004, concluding that the petitioner would not be employed in a 
managerial or executive capacity. The director observed that the evidence submitted does not demonstrate that 
the beneficiary will manage professionals or managers. The director also noted that the beneficiary would 
have to engage in the day-to-day business activities of the company, given the structure of the company and 
the pay data submitted. 
On appeal, counsel for the petitioner asserts that the beneficiary has "at all times since his visa was issued, 
worked for [the petitioner] in a managerial capacity." Counsel elaborates on the beneficiary's claimed 
managerial duties as follows: 
He organized the company and oversaw its incorporation in Texas. He acted as promoter of 
the company, and was responsible for drafting its articles of incorporation and bylaws. He is 
responsible for formulating and directing company policy. He is responsible for filing [the 
petitioner's] federal corporate tax returns and state franchise tax returns, and he personally 
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manages a component of the organization, Sicilian Pizza. [The beneficiary] directly 
supervises the four full-time employees of Sicilian Pizza, and has the power to hire and fire 
employees throughout [the petitioner's] entire organization. Finally, though he delegates 
authority over certain items to his employees, [the beneficiary] has discretion over the day-to- 
day operations of Nepton and the pizza store. He therefore exhibits all of the managerial 
characteristics enumerated in the regulations, and the Bureau's decision to the contrary is in 
error. 
Counsel also asserts that the director erred in finding that the beneficiary would not be employed in an 
executive capacity, noting: 
It is he alone who determines which businesses and properties to invest in. It is he alone who 
formulates goals and directs the policies of [the petitioner]. Although he is under a general 
mandate from [the foreign entity] in Jordan to study the U.S. economy and suggest possible 
investment opportunities or joint ventures, [the beneficiary] is given almost complete 
autonomy over the decision-malung processes at Nepton. As president and executive director, 
there are no higher executives from which [the beneficiary] could receive direction . . . . 
Counsel objects to the director's finding that the beneficiary does not qualify as a manager or executive 
because he appears to be engaged in the day-to-day business activities of the company. Counsel asserts: "This 
betrays the Bureau's misconception that an employee worlung as a manager or executive must function only 
in the capacity of a manager or executive. . . . As a practical reality of small business ownership, [the 
beneficiary] must perform some day-to-day activities of Sicilian Pizza, even though he is principally 
concerned with the management and direction of [the petitioner] as a whole." Counsel emphasizes that the 
statute only requires that the beneficiary be engaged primarily in managerial or executive duties. Counsel 
also contends that the director incorrectly found that the beneficiary does not serve in a managerial capacity 
because he does not manage other managers or professionals, noting that a manager may manage an essential 
function within the organization. Counsel emphasizes that "Sicilian Pizza" is the petitioner's most profitable 
and productive business and could be considered the company's "most essential function." 
Upon review, the petitioner has not established that the beneficiary will be employed in a managerial or 
executive capacity under the extended petition. 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. 
8 214.2()(3)(). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. 
Rather than providing a specific description of the beneficiary's duties, the petitioner initially paraphrased the 
statutory definition of executive capacity. See section <0l(a)(44)(~) of the Act, 8 U.S.C. 8 1 101(a)(44)(B). 
For example, the petitioner indicates that the beneficiary "formulated and implemented all corporate goals and 
policies" and "directed the company to successful achievement of those goals." However, conclusory 
assertions regarding the beneficiary's employment capacity are not sufficient to meet the petitioner's burden 
of proof. Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden 
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of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The expanded job description provided in response to the director's request for evidence is similarly vague, 
providing little insight into the true nature of the tasks the beneficiary will perform for the U.S. company. For 
example, the petitioner stated that the beneficiary devotes 20 to 25 hours per week to "developing various 
business enterprises, formulating corporate policy and goals, and directing the company"; 10 to 15 hours 
"training and supervising his co-workers;" and 8 to 10 hours "in administrative duties." The petitioner did not, 
however, define the beneficiary's policies and goals, describe what specific efforts the beneficiary takes to 
"develop various businesses," explain how performing "administrative duties" meets the definition of either 
managerial or executive capacity, or provide evidence that the beneficiary actually supervised employees at 
the time the petition was filed. 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 of Cal$ornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
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 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108. The provided job description does not allow the AAO to determine the actual tasks the beneficiary 
performs, such that they can be classified as managerial or executive in nature. 
On appeal, counsel correctly asserts that the beneficiary need not be engaged in exclusively executive or 
managerial duties in order to be eligible for an extension of his L-1A status. The definitions of executive and 
managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high- 
level responsibilities that are specified in the definitions. Second, the petitioner must show that the beneficiary 
primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to- 
day functions. Champion World, Inc. v. INS, 940, F.2d 1533 (Table) 1991 WL 144470 (9* Cir. July 30, 
1991). Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of providing that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. The word "primarily" is defined as "at first," principally,' or "chiefly." 
Webster's I1 New College Dictionary 877 (2001). Where an individual is "principally" or "chiefly" 
performing the tasks necessary to produce a product or to provide a service, that individual cannot also be 
"principally" or "chiefly" perform managerial or executive duties. 
Counsel concedes that the beneficiary devotes some portion of his time to the day-to-day operations of the 
business known as "Sicilian Pizza," but spends the majority of his time engaged in the overall management of 
the petitioning company. Without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Rarnirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). There is no documentary evidence in the 
record to establish that the petitioning organization operates a business known as "Sicilian Pizza." Regardless, 
counsel claims that the business was established in August 2003, five months subsequent to the filing of the 
instant petition. Accordingly, counsel's claim that the beneficiary manages this "essential" function or 
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component of the petitioner's organization and its four employees will not be considered in this proceeding. 
The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition 
may not be approved at a &re 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). 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those of his or her 
subordinate employees, the nature of the petitioner's business, and any other facts contributing to a complete 
understanding of a beneficiary's actual role in a business. As discussed above, the petitioner has not 
submitted evidence that the petitioning company was doing business at any time prior to the filing of the 
petition, much less substantiated its claim that it was operating an import export business, a pizza restaurant 
and a "Super Tire" store during the previous year. There is no evidence in the record that the petitioner 
employed anyone other than the beneficiary at the time the petition was filed. Even if the company was doing 
business, it has not been established that the beneficiary would have been relieved from primarily performing 
non-managerial duties associated with its operations. Finally, as discussed above, the record does not contain 
the required detailed description of the beneficiary's actual job duties. Again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sof$ci, 22 I&N Dec. at 165. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity. The petitioner indicates that the U.S. 
company has hired employees subsequent to the filing of the petition. However, 8 C.F.R. 214.2(1)(3)(v)(C) 
allows the intended United States operation one year within the date of approval of the petition to support an 
executive or managerial position. There is no provision in CIS regulations that allows for an extension of this 
one-year period. If the business is not sufficiently operational after one year, the petitioner is ineligible by 
regulation for an extension. In the instant matter, the petitioner has not reached the point that it can employ 
the beneficiary in a predominantly managerial or executive position. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a qualifying managerial or executive capacity. For this additional reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not submitted evidence to establish that a qualifying 
relationship exists between the United States and foreign entities as required by 8 C.F.R. 
fj 214.2(1)(14)(ii)(A). The petitioner indicated that beneficiary and the foreign entity each own 50 percent of 
the petitioning entity pursuant to a joint venture arrangement, and therefore claimed that the U.S. company is 
a subsidiary of the beneficiary's foreign employer. In his request for evidence, the director specifically 
instructed the petitioner to submit documentary evidence to establish the current ownership and control of the 
petitioner and the foreign entity, including stock certificates, corporate bylaws or any other document that 
clearly indicates stock ownership. In response to the director's request, the petitioner submitted only the U.S. 
company's articles of incorporation, which do not address the company's ownership and control. Failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 4 103.2(b)(14). As the petitioner has failed to submit documentary evidence to substantiate the 
claimed qualifying relationship, the petition cannot be approved. 
SRC 03 112 53296 
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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), afyd. 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. 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. 
ORDER: The appeal is dismissed.