dismissed L-1A Case: Retail And Wholesale

-pirSt1c COPY 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
File: EAC 08 089 50483 Office: VERMONT SERVICE CENTER Date: [)CT 0 8 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 l(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any fbrther 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. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
ief, Administrative Appeals Office 
EAC 08 089 50483 
- Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(] 5)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a Texas corporation established in January 2008, states that it 
intends to operate as a retailer and wholesaler of miscellaneous consumer goods. It claims to be a subsidiary 
of Walkman Shoes, located in Mumbai, India. The petitioner seeks to employ the beneficiary as the president 
and chief executive officer of its new office in the United States for a period of two years.1 
The director denied the petition, concluding that the petitioner failed to establish that the intended U.S. 
operation will support a primarily managerial or executive position within one year. In denying the petition, 
the director observed that the petitioner failed to establish that the beneficiary would be performing primarily 
managerial or executive duties or functioning at a senior level within the organization's hierarchy within one 
year, and failed to establish the size of the United States investment and the financial ability of the foreign 
entity to commence 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 for the petitioner asserts that the director 
erred in concluding that the foreign entity does not have the financial ability to fund the U.S. operations and 
commence business in the United States. Counsel further contends that a "complete and fair reading" of the 
beneficiary's job description should demonstrate that he will be employed in a primarily managerial capacity. 
Counsel submits a brief in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(a)(lS)(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. 8 214.2(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. 
I 
 Pursuant to the regulation at 8 C.F.R. 6 214.2(1)(7)(i)(A)(3), ifthe beneficiary is coming to the United States to open or 
be employed in a new office, the petition may be approved for a period not to exceed one year. 
EAC 08 089 50483 
Page 3 
(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. 5 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves 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 (I)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The sole issue addressed by the director is whether the petitioner established that the intended U.S. operation, 
within one year, will support a primarily managerial or executive capacity. The director specifically found 
that the petitioner: (1) failed to establish the beneficiary's duties would be primarily managerial or executive 
in nature; and (2) failed to establish 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. 
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
U.S. Citizenship and Immigration Services (USCIS) regulation, that allows for a more lenient treatment of 
managers or executives that are entering the United States to open a new office. When a new business is first 
established and commences operations, the regulations recognize that a designated manager or executive 
responsible for setting up operations will be engaged in a variety of low-level activities not normally 
~AC 08 089 50483 
Page 4 
performed by employees at the executive or managerial level and that often the full range of managerial 
responsibility cannot be performed in that first year. In an accommodation that is more lenient than the strict 
language of the statute, the "new office" regulations allow a newly established petitioner one year to develop 
to a point that it can support the employment of an alien in a primarily managerial or executive position. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is prepared to commence doing business immediately upon approval so that it will support 
a manager or executive within the one-year timeframe. This evidence should demonstrate a realistic 
expectation that the enterprise will succeed and rapidly expand as it moves away from the developmental 
stage to full operations, where there would be an actual need for a manager or executive who will primarily 
perform qualifying duties. See generally, 8 C.F.R. 5 214.2(1)(3)(~). The petitioner must describe the nature of 
its business, its proposed organizational structure and financial goals, and submit evidence to show that it has 
the financial ability to remunerate the beneficiary and commence doing business in the United States. Id. 
Section 10 l(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 10 l(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 
EAC 08 089 50483 
Page 5 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on February 5, 2008. The petitioner 
stated on Form 1-129 that the beneficiary will serve as the president and CEO of the new United States office and 
"will be responsible for the overall operation of the company." The petitioner stated that the U.S. company will 
operate as a retailer and wholesaler of miscellaneous consumer goods with projected gross income of $600,000. 
Upon review of the record, the AAO notes that it does not appear that the petitioner filed a supporting letter, 
business plan, or any other description of the beneficiary's duties or the intended U.S. company at the time of 
filing. 
On March 20, 2008, the director issued a request for additional evidence (RFE) in which he instructed the 
petitioner to submit, inter alia, the following: (1) a copy of the petitioner's business plan for commencing the 
start-up company in the United States, giving specific dates for each proposed action for the next two years; (2) a 
specific description of the beneficiary's proposed duties; (3) copies of the foreign entity's audited or reviewed 
financial statements and tax returns for 2006 and 2007; and (4) copies of any bank wire transfers or other 
evidence to document the transfer of funds between the foreign business and the U.S. entity. 
In response to the director's request, the petitioner submitted the following description of the beneficiary's 
proposed duties: 
Financial Responsibilities: 40% time commitment. 
Responsible for maintaining the enterprise on sound financial footing. 
Primary contact with the bank to make timely deposits, responsible for timely payment to 
international suppliers. 
Primarily responsible for payments to local 
Primarily responsible for arranging 
o 
 Working capital necessary to purchase inventory, 
o Pay employee salaries and 
o 
 Pay the running expenses of the operation. 
Operational Responsibilities: 40% time commitment. 
Inventory Management: 
o 
 Responsible for vendor relations and inventory management. 
o 
 Responsible for maintaining optimum level of inventory. 
o 
 Responsible for ordering inventory in time, ensuring proper pricing and display. 
o 
 Responsible for maintaining proper accounts payable and sustaining vendor 
relations. 
Personnel Management: 
o 
 Responsible for hiring and firing of the employees. 
o 
 Responsible for work schedules on a daily, weekly and monthly basis. 
EAC 08 089 50483 
Page 6 
o 
 Ensuring that complete personnel files are maintained for all employees. 
o 
 Ensuring that [sic] proper screening of all employees. 
Premises Management: 
o 
 Responsible for lease negotiations, ensuring compliance with lease terms by the 
landlord. 
o Responsible for security arrangements 
o 
 In case of any mishaps, responsible for dealing with the local law enforcement. 
Regulatory Responsibilities: 20% time commitment. 
Responsible for ensuring that all relevant licenses have been obtained and are current. 
Ensuring that proper procedures for maintenance of books of accounts. 
Ensuring proper calculation of taxes and timely payments to the local, provincial and federal 
government regulatory bodies. 
The petitioner submitted a letter dated June 10, 2008 fiom the president of the foreign entity, who stated that the 
U.S. company intends to employ seven employees who will report to the beneficiary. He stated that these 
employees would include an office manager, a receptionistltelephone operator, a vendor relations manager, an 
assistant vendor relations employee, a sales and marketing employee, and two "outdoor salesmen." He stated that 
the U.S. company will sell gasoline and general merchandise. 
The petitioner also provided a proposed organizational chart for the U.S. company, which indicates that the 
beneficiary's direct subordinates would include an office manager, a vendor-liaison manager, a marketing and 
sales manager, and a procurement manager. The chart indicates that each of these managers will supervise two 
assistant managers, who in turn will supervise "floor staff' and temporary workers. The petitioner provided 
separate position descriptions for the positions of "ProcurementNendor Relations Manager," "Finance Manager," 
"Marketing & Sales Manager," "Customer Service/Office Manager," and "Office Manager." 
In addition, the petitioner submitted a copy of its business plan, in which it states that "our company can be 
characterized as a Gas Station and Convenience Store." The business plan suggests that the petitioner intends to 
operate one store during the first two years of operation. The petitioner states that its initial capital requirements 
are $40,000, and that it will require $200,000 in financing to implement its plans. The business plan does not 
discuss the petitioner's proposed staffing; however, it does contain the company's cash flow forecast for the first 
twelve months of operation. According to this forecast, the petitioner anticipates paying total salaries and wages 
of approximately $36,000 during the first year of operation. The month-by-month forecast indicates that the 
petitioner's salary and wage payments would fluctuate monthly, with amounts ranging from $1,780 in months 10 
and 1 1, to $2,63 1 in month 12, to $6,304 in month one. 
The business plan also contains a page titled "Sources and Uses of Funds" indicating that the company is seeking 
$137,500 in funding, of which it has received an "investment fiom principals" in the amount of $41,750. As 
evidence of the fimding of the U.S. company, the petitioner submitted a letter fiom the petitioner's bank verifLing 
that the petitioner received a wire transfer in the amount of $39,975 on March 13, 2008. The petitioner did not 
provide evidence of the source of these funds. 
EAC 08 089 50483 
Page 7 
Finally, it appears that the petitioner also submitted the foreign entity's original 2007-2008 income tax returns and 
recent bank statements. The receipt of such documents is noted in the director's decision, and the AAO notes that 
the petitioner requested that all original documents be returned to the company. The record of proceeding does 
not contain copies of these documents. 
The director denied the petition on October 29, 2008, concluding that the petitioner had not established that the 
new ofice would support a primarily managerial or executive position within one year of commencing 
operations. The director determined that "the record does not establish that the duties as stated by the petitioner 
are consistent with the duties that would normally be executed by a manager or executive," or that the beneficiary 
would be employed as a manager or executive other than in position title. The director further found that the 
evidence submitted does not establish that the foreign entity "has the financial viability to operate both the foreign 
entity and the United States entity." 
On appeal, counsel for the petitioner asserts that the director erred by not acknowledging the fact that the 
petitioner has already received the $40,000 in funding necessary to commence doing business in the United 
States. Counsel further states that the regulations only require that the petitioner have sufficient funding to 
commence operations, and that "it is envisaged in the relevant regulations . . . that once business is commenced, it 
should be able to generate revenues to continue operating a "Going Concern." 
With respect to the beneficiary's proposed employment, counsel asserts that the job description provided clearly 
falls within the statutory definition of "managerial capacity." Counsel emphasizes that the regulations do not 
require that the beneficiary supervise professional employees, and states that the beneficiary may qualify as a 
functional manager even if no other employees are present. 
Upon review, the petitioner has not established that the beneficiary would be employed in a primarily 
managerial or executive capacity within one year of approval of the petition or that the intended U.S. 
operation would support a managerial or executive position. 
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. 4 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. Beyond the required description of the job duties, USCIS 
reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's proposed organizational structure, the duties of the beneficiary's 
proposed subordinate employees, the petitioner's timeline for hiring additional staff, the presence of other 
employees to relieve the beneficiary from performing operational duties at the end of the first year of 
operations, the nature of the petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. The petitioner's evidence should 
demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from 
the developmental stage to full operations, where there would be an actual need for a manager or executive 
who will primarily perform qualifying duties. See generally, 8 C.F.R. 9 214.2(1)(3)(~). 
While the petitioner provided a fairly lengthy description of the beneficiary's proposed position and a 
EAC 08 089 50483 
Page 8 
breakdown of the amount of time the beneficiary will devote to three general categories of duties, the 
petitioner has not established how the beneficiary's duties would be primarily managerial or executive in 
nature. For example, the petitioner stated that the beneficiary will devote 40 percent of his time to "financial 
responsibilities," which includes banking, paying suppliers, "maintaining the enterprise on sound financial 
footing," and "arranging" working capital, payment of employee salaries and payment of the running 
expenses of the company. The AAO does not doubt that the beneficiary would exercise discretion over the 
financial management of the company, however, based on the duties enumerated, it is evident that he would 
perform essentially all duties associated with the company's day-to-day finances, including non-qualifying 
duties. The petitioner does not indicate that it intends to hire a bookkeeper or any other staff who would 
relieve the beneficiary from routine financial and administrative tasks. 
Similarly, the beneficiary's "operational responsibilities," which would require another 40 percent of his time, 
include a combination of managerial and non-managerial duties. The petitioner states that the beneficiary will 
be responsible for "inventory management," however the duties associated with this responsibility involve 
such routine tasks as ordering inventory, maintaining inventory levels, vendor relations and maintaining 
accounts payable, duties which do not fall under the statutory definition of managerial or executive capacity. 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
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 prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). Because the petitioner has assigned percentages to broadly cast 
responsibilities rather than to specific duties, the AAO cannot conclude that the beneficiary would be 
performing primarily managerial or executive duties, or whether he would primarily perform administrative 
and operational tasks associate with the company's purchasing and financial functions. 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 Intn % , 19 I&N Dec. 593,604 (Comm. 1988). 
Furthermore, the petitioner has failed to consistently or credibly describe the proposed organizational 
structure of the new office, including the number and types of employees to be hired during the first year of 
operations. Without this information, the AAO cannot determine whether the beneficiary would be relieved 
from performing non-qualifying duties associated with operating a gas station and convenience store within 
one year. In response to the RFE, the petitioner submitted a letter from the foreign entity indicating that the 
petitioner plans to employ seven staff who would report to the beneficiary, including an office manager, a 
receptionistltelephone operator, a vendor relations manager, a vendor relations assistant, a sales and 
marketing employee and two "outdoor salesmen." The petitioner's proposed organizational chart indicates 
that the company intends to hire an office manager, a vendor liaison manager, a marketing and sales manager, 
a procurement manager, two assistant managers in each department, "floor staff1 in each department, and 
temporary workers. 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 
EAC 08 089 50483 
Page 9 
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). 
In addition, the petitioner failed to submit credible position descriptions for the proposed subordinate 
positions. The petitioner indicated that the procurement manager and vendor relations manager actually 
perform the same duties, and that both positions require a Bachelor's degree. The petitioner did not explain 
why a company operating a single gas station/convenience store would require two degreed managers to 
perform purchasing duties, with the support of four assistant managers and "floor staff." Furthermore, as 
noted above, the petitioner indicated that the beneficiary himself will be responsible for ordering inventory 
and vendor relations. The petitioner also submitted position descriptions for the positions of "Finance 
Manager," and "Customer Service Manager," however, these positions do not appear on the proposed 
organizational chart for the company. The petitioner's proposed job description for the "marketing and sales 
manager" position is not consistent with the proposed type of business. The petitioner indicates that this 
position will develop "long-term vision for assigned brands," "direct all aspects of the advertising agency's 
efforts against innovation on assignment brands," "work closely with Customer Marketing Management to 
develop field sales action plans," and work with "Research and Development, Product and Technical 
Development and Quality Assurance to evaluate any proposed product or packing changes." Again, the 
petitioner intends to engage in the retail sale of gasoline, tobacco products, alcoholic beverages and snack 
foods. It does not have a "brand," a research and development department, a product development department 
or quality assurance staff. Notably, the petitioner does not indicate that it intends to hire any cashiers or a 
store manager, the positions that are most commonly associated with the intended type of business. 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. Matter of Ho, 19 I&N Dec. at 
591. 
Finally, despite the petitioner's submission of a proposed organizational chart depicting sixteen or more 
employees working under the beneficiary's supervision, the petitioner's financial projections indicate that the 
company anticipates paying only $36,000 in salaries during the first year of operations, with a total 
anticipated payroll of $5,572 during the last quarter. This information undermines the petitioner's claim that 
the company anticipates hiring multiple tiers of managerial and supervisory personnel during the first year of 
operations. Although requested by the director, the petitioner's business plan does not contain a proposed 
timetable for hiring employees or other personnel actions. Based on the evidence submitted, the AAO cannot 
determine how many employees will be hired during the first year of operations, the positions they will hold, 
or whether they will be employed full-time or part-time. Therefore, the AAO cannot conclude that the 
beneficiary would be relieved from performing the non-qualifying duties associated with operating a gas 
station and convenience store within one year. 
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. fj 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
EAC 08 089 50483 
Page 10 
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). As discussed above, while the 
petitioner has indicated that some of the beneficiary's subordinates would supervise lower-level personnel, 
have managerial job titles, and possess bachelor's degrees, the petitioner's statements regarding its proposed 
organizational structure are not credible given the nature of the business, nor is the proposed organizational 
structure corroborated by the information outlined in the company's business plan. While it appears that the 
beneficiary will likely supervise one or more subordinates and have the authority to hire the company's 
employees, the evidence of record does not establish that the beneficiary's subordinates would be managers, 
supervisors or professionals. 
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 10 l(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 101 (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 explaining the specific duties to 
be performed in managing the essential function, i.e. identify the function with specificity, articulate the 
essential nature of the function, and establish 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. While counsel suggests on appeal that the director failed to consider whether 
the beneficiary would serve as a function manager, counsel neglects to explain what essential function the 
beneficiary would manage or the amount of time he would allocate to managing the function. 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 Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). As discussed above, based on the petitioner's representations, the beneficiary 
would be performing the financial, inventory and purchasing functions for the petitioning company, rather 
than managing such functions. The fact that the beneficiary will generally oversee the operations of the 
company does not automatically elevate his position to that of a function manager. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 11 08. 
Apart from providing a detailed job description sufficient to establish that the beneficiary will perform 
primarily managerial or executive duties, and a credible description of the petitioner's proposed organizational 
structure, the petitioner is required to disclose the size of the investment in the United States company and to 
demonstrate the financial ability of the foreign entity to commence doing business in the United States. 8 
C.F.R. 5 214.2(1)(3)(v)(C)(2). The petitioner claims that the foreign entity has provided the petitioner with 
$40,000 for the U.S. company's start-up expenses. The petitioner has submitted evidence that the petitioner 
received a wire transfer in this amount in March 2008, however, there is no evidence in the record to 
corroborate the source of these funds. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 
165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner states in its business plan that its "initial capital requirements are for $40,000." However, the 
petitioner goes on to state that it requires $200,000 in financing for gas pumps, tanks and other equipment that 
~AC 08 089 50483 
Page 11 
would appear to be necessary for the operation of a gas station, and indicated that some of these funds would 
be used "to lease a 2,500 square foot Convenience Store space." The petitioner also indicates in its business 
plan that it is seeking funding in the amount of $137,500. Based on these conflicting statements, the AAO is 
not persuaded that the $40,000 in the petitioner's bank account as of March 2008 would be sufficient to meet 
the petitioner's initial capital requirements or start-up expenses, even if the petitioner had established that such 
funding was provided by the claimed foreign parent company. Again, 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. at 591-92. 
For all of the foregoing reasons, the petitioner has failed to establish that the beneficiary will employed in a 
primarily managerial or executive capacity, or that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. 5 214.2(1)(3)(v)(C). Accordingly, the appeal will 
be dismissed. 
Beyond the decision of the director, the AAO notes that there are additional deficiencies in the record which 
warrant an adverse decision in this matter. First, the evidence of record does not establish that the petitioner has 
secured sufficient physical premises to house the new office, as required by 8 C.F.R. 5 214.2(1)(3)(v)(A). 
The record contains a commercial lease aaeement dated January 1, 2008, between the petitioning company 
reveals several deficiencies. First, the AAO notes that the petitioning company was not incorporated in the 
State of Texas until January 23, 2008, several weeks after the commencement date of the lease agreement. 
Second, the lease agreement appears to have been signed bys landlord, but his association 
with "Cutler Real Estate" has not been established. The lease agreement does not identify the address of the 
leased premises. Several key provisions of the agreement, such as the date of termination of the agreement 
and the intended use of the property, have not been completed. Finally, the agreement refers to "Exhibit A 
Legal Description," and "Exhibit B Tenant Plans and Specifications," but neither of these exhibits were 
provided for review. Based on this evidence, the AAO cannot conclude that the petitioner has secured 
physical premises sufficient to house a gas station and convenience store. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. at 165. For this additional reason, the petition cannot be approved. 
Finally, the petitioner has not established that it has a qualifying relationship with the beneficiary's foreign 
employer, Walkman Shoes. To establish a "qualifying relationship" under the Act and the regulations, the 
petitioner must show that the beneficiary's foreign employer and the proposed U.S. 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)(15)(L) of the Act; 8 C.F.R. 5 214.2(1). 
The petitioner claims to be a subsidiary of the foreign entity, but did not submit any documentary evidence of 
the ownership of the U.S. company at the time of filing. Counsel stated in her letter dated June 11, 2008, 
submitted in response to the RFE, that the petitioner was submitting copies of its stock certificates, share 
transfer journal and articles of incorporation to establish that the foreign entity is the sole owner of the U.S. 
company. The AAO has carefully reviewed the record of proceeding and cannot locate these documents. In 
~AC 08 089 50483 
Page 12 
the Notice of Decision, the director provided a detailed list of evidence submitted in response to the RFE. 
This list did not include the petitioner's stock certificates or stock transfer ledger. Therefore, the record as 
presently constituted does not contain any evidence of the ownership of the U.S. company to corroborate the 
petitioner's claim that the petitioner is wholly owned by Walkman Shoes, the foreign entity. For this 
additional reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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.