dismissed L-1A Case: Retail / Convenience Stores

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. 3000 
Washington, DC 20529-2090 
File: EAC 06 197 51 126 Office: VERMONT SERVICE CENTER Date: MAR 0 4 2003 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1101(a)(15)(L) 
IN BEWF 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. 
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 or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Administrative Appeals Office 
. EAC06 19751126 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa on 
August 28, 2006. The petitioner filed a motion to reopen and reconsider. The director reconsidered the 
denial and, on January 14, 2008, affirmed his decision to deny the petition. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of the beneficiary 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. 3 1 101 (a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of North Carolina and allegedly operates convenience store/gas stations. The beneficiary was 
granted two one-year periods of stay to open a new office in the United States, and the petitioner now seeks to 
extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed a motion. The director affmed his denial of the petition, and the petitioner 
filed an appeal with the AAO. On appeal, counsel to the petitioner asserts that the director erred and that the 
beneficiary's duties will be primarily those of a manager or an executive. 
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 
States. Ji 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 himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
. EAC06 19751126 
Page 3 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(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 qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business ks 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 primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 
 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. 
EAC 06 197 51126 
Page 4 
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 does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. Given the lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary 
will be employed as a manager or an executive and will consider both classifications. 
The petitioner claims in the Form 1-129 to employ six persons and describes its enterprise in a letter dated 
June 7,2006 as follows: 
Our initial U.S. business investment in June 2005 was a convenience storelgas station called 
located in Salem, Virginia. We entered into a business contract where we are 
entitled to all the revenues generated by Sparkey's until 2007, for a specific fee, in addition to 
being responsible for all the expenses to operate the business. In October 2005, [the 
petitioner] purchased a convenience store/gas station, I' in Vinton, Virginia. On 
April 26, 2006, we entered into a lotlland purchase agreement for a property in Roanoke, 
Virginia. Settlement and possession are scheduled to take place on or about June 30,2006. 
The petitioner described the beneficiary's proposed duties in an attachment to the Form 1-129 as follows: 
As stated in the letter of support, duties are as follows for the position of President: 
Locate investment businesses to purchase - 15% 
Establish financial goals for each investment - 35% 
Analyze financial reports of each investment - 6 %% 
Establishing plans to increase sales - 6 %% 
Review profitlloss statesments - 6 %% 
Develop marketing strategies - 6 %% 
Ensure smooth operation of each investment - 25% 
More specifically, the duties are further broken down: 
1. 
 Exclusively fesponsible for decisions affecting profit and loss; 
EAC06 19751126 
Page 5 
Act exclusively to develop, direct and implement overall strategies, policies and 
procedures of the U.S. company; 
Research summarized data for financial studies on the economic trends, entry 
barriers, consumer demands and supplies; 
Investigate acquisition targets, performing due diligence searches for targets; 
Arrange the financing of acquisitions, negotiate prices, payment and structure; 
Analyze requirements for new business opportunities and prepare proposals; 
Develop and implement various analytical models in collaboration with sales; 
Review solicitations from potential supplies to determine if potential product or 
service is viable for the business; 
Monitor monthly inventory movement reports prepared by store managers; 
Interpret federal and state regulations to develop policy related to the business; 
Review and evaluate contracts for compliance with department policies and 
procedures related to the specific program; 
Research, compile, and prepare data for fmancial studies of prospective insurances 
for company; 
Review and grant advertising/promotions designed by managers for assigned store; 
review proposals made by store managers to develop, design and review the business 
marketing plan; develop strategic business plans for marketing product; 
Develop high-level costbenefit analyses to determine return on advertising and 
promotion dollars; 
Develop strategic plans and review Store Managers' tactical plans and tests; 
Summarize data or other non-quantifiable information, setting forth current and long- 
term economic or business trends pertinent to the status of the program; 
Statistically analyze financial statements to determine liquidity, earnings, earnings 
potential, and overall financial strength; 
Perform pricinghales analysis of the company and compare it to competitors and 
market standard and hold monthly meetings with managers and other members to 
review and provide suggestive prices; 
Develop purchasing policies and establish guidelines and measurements for inventory 
supply and management; 
Establish budgets and evaluate cost and quality of goods or services; 
Identify vendors, obtain quotations, negotiate purchase or materials, equipment or 
supplies and manage vendor contracts and relations; and 
Perform in-depth analysis of financial records and summarize performance of 
business to management during quarterly meetings. 
The petitioner also submitted an organizational chart for the United States operation. The chart shows the 
beneficiary at the top of the organization directly supervising the "secretary and office manager" of "Business 
1 :" who, in turn, is portrayed as supervising a store manager, a store cashier, a store clerk, and an 
office assistant. However. it amears that the "secretarv and office manager" position is vacant and the 
x A -. 
beneficiary will directly supervise the subordinate workers at . The beneficiary is also described as 
supervising " However, as the organizational chart does not 
specifically identify any of the enterprise's workers, it appears that these positions are vacant. It is also noted 
EAC 06 19751126 
Page 6 
that the chart does not list any workers associated with " 
m 
The petitioner also described the duties of the beneficiary's subordinate workers. The cashiers and clerks are 
described as performing the tasks necessary to the provision of a service. The "store manager" is described as 
follows: 
Supervises day to day activities of the stockers to ensure the maintenance of high quality 
customer relations and friendly store atmosphere; monitors the facility to ensure that it 
remains safe, secured and well maintained; acquires, distributes and stores supplies in the 
correct places; oversees the maintenance and repair of equipment'sa [sic] electrical and 
mechanical systems. 
On July 5, 2006, the director requested additional evidence. The director noted that the record is not 
persuasive in establishing that the beneficiary will be primarily employed in the United States in a managerial 
or executive capacity and requested copies of the educational credentials of the beneficiary's claimed 
subordinate workers. 
In response, counsel submitted a letter dated August 4, 2006 in which she describes the beneficiary as 
"directing the management and supervision of a major component or function within the organization" by 
delegating "the day-to-day management and operations to the Manager." Counsel also asserts the following: 
We are not basing the executive/managerial basis for this visa on the beneficiary supervising 
the work of others - such as the Manager, Cashiers and Clerks. Rather, the position primarily 
requires one to direct the management and supervision of a major function within the 
organization; this is the primary basis for qualifying the position at issue for the L-IA visa. 
A major component or function for the position at issue is to locate and manage investments 
for a holding company - this is crucial for the company because it is [a] holding company. 
Counsel further describes the scope of the petition as follows: 
[Tlhe petition in this case is not based on qualifying beneficiary's position in the supervision 
and control of the work of other supervisory, professional, or managerial employees. Instead, 
it is based on beneficiary directing the management and supervising a major component or 
function crucial to the organization - locating and managing investments. We do not claim 
that the employees at the convenience stores are bona fide managers or professionals as 
defined under the L visa statutes and regulations to qualie for the L visa. 
In support, counsel submits a variety of real estate listings and a purchase agreement pertaining to the claimed 
acquisition of a third commercial location. 
Finally, the petitioner submitted a work schedule for the two convenience stores allegedly operated by the 
petitioner. Except for a few hours of overlap, the schedule indicates that no more than one worker staffs each 
convenience store at any one time. For example, on Tuesdays, the "store manager" operates- 
EAC 06 197 51 126 
Page 7 
from 7:00 a.m. until 5:00 p.m. and the beneficiary's spouse operates 
 from 2:00 p.m. until 10:OO 
p.m. The beneficiary is not listed on the schedule.' 
On August 28, 2006, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On motion, counsel submits additional evidence and a brief. Counsel submits evidence pertaining to the 
development of a third convenience store and other business transactions occurring after the filing of the 
instant petition on June 23, 2006. Counsel argues that the beneficiary supervises and controls the work of 
managerial, supervisory, and professional "independent contractors" who have been hired by the petitioner to 
design and build a store or to locate future investments. Finally, counsel submits a letter from the American 
Evaluation and Translation Service, Inc. dated September 15, 2006 opining that the beneficiary's role as 
president of the petitioner is a "manageriaVexecutive level position." 
On January 14,2008, the director affirmed his previous denial of the petition. 
On appeal, counsel asserts that the beneficiary will primarily perform qualifying duties in the United States. 
Upon review, counsel's assertions are not persuasive. 
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. § 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. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. A petitioner may not claim that a 
beneficiary will be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory 
definitions. 
Title 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. Although the director granted the petitioner two 
one-year periods to establish the new business, there is no provision in U.S. Citizenship and Immigration 
Services (USCIS) regulations that allows for an extension of this one-year period. If the beneficiary is not 
performing qualifying duties within one year of petition approval, the petitioner is ineligible by regulation for 
an extension. In the instant matter, even after two one-year start-up periods, the petitioner has not established 
that the United States operation has reached the point that it can employ the beneficiary in a predominantly 
managerial or executive position. 
I 
It is noted that the work schedule indicates that the "store manager" and the beneficiary's spouse each work at 
on Mondays from 4:00 p.m. until 10:OO p.m. However, as no other employee is identified as 
staffing from 7:00 a.m. until 4:00 p.m., this appears to be a typographical error and it is more 
likely than not that, similar to other entries on the schedule, is operated on Mondays mostly by a 
single employee. 
EAC 06 197 51 126 
Page 8 
As a threshold matter, it is noted that evidence of business transactions and activities occurring after the filing 
of the initial petition on June 23, 2006 may not be considered in determining whether the petitioner has 
established that the beneficiary will be employed in a primarily managerial or executive capacity in the 
United States. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A 
visa petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In this matter, the petitioner 
claims in the initial petition to operate two convenience stores staffed by five workers. The petitioner also 
claims that it entered into a purchase agreement for the acquisition of a building lot, but that this transaction 
had not yet closed. Accordingly, only those duties pertaining to the status of the enterprise at the time the 
petition was filed may be considered. Duties ascribed to the beneficiary in the future due to transactions and 
activities occurring after the filing of the petition, including the purported supervision of independent 
contractors, may not be considered. On motion or on appeal, a petitioner cannot offer a new position to the 
beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, or 
the associated job responsibilities. A petitioner may not make material changes to a petition in an effort to 
make a deficient petition conform to USCIS requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 
(Assoc. Comm. 1998). 
In view of the above, the petitioner's description of the beneficiary's job duties as these relate to the operation 
of a two-location, five-employee retail enterprise with speculative expansion plans fails to establish that the 
beneficiary will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has 
submitted a vague and non-specific job description which fails to sufficiently describe what the beneficiary 
will do on a day-to-day basis. For example, the petitioner claims that the beneficiary will manage and locate 
investments. In performing this duty, the petitioner claims that the beneficiary will devote most of his time to 
locating investments, establishing financial goals for the investments, and ensuring the "smooth operation of 
each investment." The petitioner also submitted a vague list of 22 duties such as developing strategies, 
policies, and procedures; interpreting federal and state regulations to develop policy; developing strategic 
plans; and performing "in-depth analysis of financial records." However, the petitioner fails to specifically 
define these strategies, policies, financial goals, and procedures, or explain what, exactly, the beneficiary will 
do to locate investments or to ensure the "smooth operation of each investment" other than act as a first-line 
supervisor of a two-location, five-employee convenience store and gas station operation. The fact that the 
petitioner has given the beneficiary a managerial or executive title and has prepared a vague job description 
which includes inflated job duties does not establish that the beneficiary will actually perform managerial or 
executive duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). 
Consequently, it has not been established that the beneficiary will primarily perform qualifying duties in his 
operation of the business as its sole administrative employee. It has not been established that his ascribed 
duties, e.g., locating future investments, "managing" the two convenience stores, and supervising the five 
employees, are qualifying managerial or executive duties. To the contrary, it appears that the first-line 
EAC 06 197 51126 
Page 9 
supervision of five convenience store workers, as well as performing the tasks inherent to searching for future 
business locations, are non-qualifying operational or administrative tasks. It has also not been established that 
the beneficiary will be relieved by a subordinate staff from performing the administrative, operational, and 
first-line supervisory tasks inherent to his operation of two convenience stores. Although the petitioner 
claims that "the day-to-day management and operations" of the convenience stores has been delegated to the 
"store manager," it does not appears as if this worker will truly relieve the beneficiary of being the first-line 
supervisor of the operation. As noted above, the work schedule for the five subordinate workers indicates that 
the "store manager," along with the other four workers, primarily take turns solely staffing the convenience 
stores. Therefore, it does not appear as if the "store manager" is supervising any of the other workers. It also 
does not appear from the store manager's job description that this employee is performing many of the non- 
qualifying tasks inherent to the operation of a small business. Consequently, it appears as if the beneficiary 
will perform many of these non-qualifying tasks, e.g., accounts payable, payroll, scheduling, purchasing 
inventory, and managing vendor contracts. Accordingly, it appears more likely than not that the beneficiary's 
operation of the two-location, five-employee convenience store enterprise "primarily" constitutes the 
performance of the tasks necessary to provide a service or to produce a product. 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 International, 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential fimction of the organization. 
As asserted in the record, the beneficiary will directly "supervise" five convenience store employees, as well 
as various professional service providers, in his administration of the business. However, counsel concedes 
that none of the five convenience store employees is a managerial, supervisory, or professional worker. 
Furthermore, the claimed professional service providers were all engaged after the filing of the petition. Once 
again, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition, and workers 
hired after the filing of the petition may not be considered. A visa petition may not be approved after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248. Accordingly, the record is not persuasive in establishing that the beneficiary will supervise 
and control the work of other supervisory, managerial, or professional employees, and it appears more likely 
than not that the beneficiary will be a first-line supervisor of non-professional employees. A managerial 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. 101 (a)(44)(A)(iv) of the Act; see also Matter 
of Church Scientology International, 19 I&N Dec. at 604.~ 
2 
Even if the petitioner's engagement of professional service providers were considered, the claimed 
"supervision" of various professional service providers does not constitute the supervision and control of 
managerial, supervisory, or professional "employees." The supervision or management of intermittent, 
temporary independent contractors, such as accountants, lawyers, architects, and real estate agents, will not 
permit a beneficiary to be classified as a managerial employee as a matter of law. See section 
10 1 (a)(44)(A)(ii) of the Act; 8 C.F.R. 3 2 14.2(1)(l)(ii)(B)(Z). Although the engagement of contractors could 
be relevant in some situations in ascertaining whether beneficiaries will likely be relieved of the need to 
perform certain non-qualifying tasks, the Act is quite clear that only the management of employees may be 
EAC 06 197 51 126 
Page 10 
Furthermore, the petitioner has not established that the beneficiary will manage an essential function of the 
organization. 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 1 (a)(44)(A)(ii) of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that the beneficiary will manage an essential 
function, the petitioner must furnish a written job offer that clearly describes the 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 will manage the function rather than perform the tasks related to 
the function. 
In this matter, the petitioner has not provided evidence that the beneficiary will manage an essential function. 
The petitioner's vague job description fails to document how the beneficiary's duties will be primarily 
managerial. As explained above, the record fails to establish that the beneficiary will primarily perform 
qualifying managerial duties as a first-line supervisor of a two-location, five-employee convenience store and 
gas station enterprise and as the sole administrator of the business. Absent a clear and credible breakdown of 
the time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his 
duties will be managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a 
function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1 999). 
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial 
capacity. 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
considered a qualifying managerial duty for purposes of this visa classification. Therefore, even if the 
petitioner could establish that the independent contractors are perfonring professional duties, the beneficiary's 
supervision of such contractors would not constitute a qualifying managerial duty. Equally important, the 
petitioner has failed to establish that the beneficiary will truly "supervise and control" any of the professional 
service providers. It appears that the petitioner's engagement of these various companies and individuals is 
intermittent at best. It has not been established that the beneficiary will play any role in the supervision of the 
performance of any of the tasks being performed. To the contrary, it appears that the petitioner is interested 
only in the results of the engagement. The mere fact that the beneficiary has the authority to engage third 
party service providers does not establish that he will "supervise and control" the provision of these 
contracted services or that he will primarily perform managerial or executive duties. 
EAC 06 197 51126 
Page 11 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis. 
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line 
supervisor and will perform the tasks necessary to produce a product or to provide a service. Therefore, the 
petitioner has not established that the beneficiary will be employed primarily in an executive capacity. 
Finally, it is noted that the letter from the American Evaluation and Translation Service, Inc. dated September 
15, 2006 opining that the beneficiary's role as president of the petitioner is a "manageriaVexecutive level 
position" is not persuasive. The author bases his conclusion on his own subjective definition of a 
"manageriaVexecutive level position" and fails to establish that the beneficiary will more likely than not be 
primarily employed in a "managerial capacity" or an "executive capacity" as defined by statute. Sections 
10 1 (a)(44)(A)-(B). Furthermore, the author relies on the petitioner's same vague description of the 
beneficiary's proposed duties and fails to address who, other than the beneficiary, will perform the non- 
qualifying, first-line supervisory tasks necessary to the operation of two convenience stores. Finally, the letter 
mixes immigration terminology and generally lacks clarity and credibility. For example, on page 2 of the 
letter, the author indicates that the beneficiary's position "clearly meets the standards of a 'Specialty 
Occupation Position."' However, on page 3, the author claims both that the beneficiary's job requires 
"specialized knowledge" and that it is a "rnanageriaVexecutive level position." Overall, as the letter is based 
on the same vague job description, fails to account for who will perform the non-qualifying operational, 
administrative, and first-line supervisory tasks inherent to the petitioner's business, and does not base its 
conclusion on the standards set forth in the Act and regulations, the letter is not persuasive in establishing that 
the beneficiary will be primarily employed in a managerial or executive capacity. 
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)). Furthermore, 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, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are 
qualifying organizations. 
EAC 06 197 51 126 
Page 12 
The regulation at 8 C.F.R. $ 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Likewise, the regulation at 8 C.F.R. 214.2(1)(14)(ii)(A) requires petitioners seeking to extend 
"new office" petitions to submit "[elvidence that the United States and foreign entities are still qualifying 
organizations." Title 8 C.F.R. $ 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section'' and "is or will be doing 
business." A "subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity." 8 C.F.R. $ 214.2(1)(l)(ii)Q. 
In this matter, the petitioner claims in a letter dated June 7, 2006 to be 100% owned and controlled by a 
"foreign company," a business entity located in India. However, other evidence in the record is inconsistent 
with the claim and, thus, the record is not persuasive in establishing that the petitioner is truly owned and 
controlled by the foreign employer. For example, the petitioner submits a copy of its 2005 IRS Form 1120S, 
U.S. Income Tax Return for an S Corporation. However, to qualify as a subchapter S corporation, a 
corporation's shareholders must be individuals, estates, certain trusts, or certain tax-exempt organizations, and 
the corporation may not have any foreign corporate shareholders. See section 1361 of the Internal Revenue 
Code, 26 U.S.C. 1361. A corporation is generally not eligible to elect S business entity status if a foreign 
entity owns it in any part. Accordingly, since the petitioner would not be eligible to elect S-corporation status 
with a foreign parent, it appears that the United States petitioner is owned by one or more individuals residing 
within the United States rather than by a foreign entity. In fact, the petitioner indicates in schedule K-1 to 
Form 1120s that it is 100% owned by the beneficiary. The petitioner offers no explanation for this 
inconsistency in the record pertaining to its ownership and control. 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). Therefore, the record is 
not persuasive in establishing the true ownership and control of the United States operation. 
Accordingly, as the petitioner has failed to clearly establish its ownership and control, it has failed to establish 
that it has a qualifying relationship with the foreign employer, and the petition may not be approved for this 
additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed 
abroad in a primarily managerial or executive capacity. 
The petitioner claims in a letter dated June 7, 2006 that the beneficiary "held the position of Executive 
Manager" abroad and that he "was the Administrative Head and Head of Purchases and Sales." Although the 
petitioner claims to have attached a document containing a more detailed job description, the record does not 
contain this document. 
The petitioner also submitted a list of employees of the foreign entity. This list does not include the 
beneficiary and only lists employees by name, job title, and educational level. The list does not describe the 
duties of any of the employees or explain how the beneficiary fit into the organizational hierarchy of the 
foreign business. 
EAC 06 197 51 126 
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Upon review, it has not been established that the beneficiary primarily performed managerial or executive 
duties abroad. The petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary did on a day-to-day basis abroad. Once again, specifics are clearly 
an important indication of whether a beneficiary's duties were primarily executive or managerial in nature; 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Suva, 724 F. Supp. 1103, af'd, 905 F.2d 41. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190. Furthermore, the petitioner failed to describe the duties of 
the beneficiary's claimed subordinate employees, if any. Absent job descriptions for the subordinate workers, 
if any, it cannot be concluded that the beneficiary was relieved of the need to perform non-qualifymg tasks by 
a subordinate staff or that he supervised and controlled the work of other supervisory, managerial, or 
professional workers. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 101 (a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. 
at 604. If initial evidence does not demonstrate eligibility for the benefit sought, USCIS may deny the 
petition. 8 C.F.R. 9 103.2(b)(8)(ii). 
Accordingly, as the petitioner failed to establish that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 5 214.2(1)(3)(vii). 
In this matter, and as noted above, the record indicates that the beneficiary purportedly owns and controls the 
petitioner. As the purported owner of the petitioner, the petitioner is obligated to establish that the 
beneficiary's services will be used for a temporary period and that he will be transferred to an assignment 
abroad upon completion of the assignment. Id. However, the record is devoid of any evidence establishing 
that the beneficiary's services will be used temporarily. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
The previous approval of an L-1A petition does not preclude USCIS from denying an extension based on a 
reassessment of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, USCIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 291 of the Act, 8 U.S.C. § 1361. 
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 
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Page 14 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afld, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.