dismissed L-1A Case: Retail Grocery

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-R-G- LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 23, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner intends to operate retail grocery stores and seeks to temporarily employ the Beneficiary 
as the senior manager of its new office under the L-1 A nonimmigrant classification for intracompany 
transferees. See Immigration and Nationality Act (the Act) section 101(a)(l5)(L), 8 U.S.C. 
§ 1101(a)(15)(L). The L-1A classification allows a corporation or other legal entity (including its 
affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work 
temporarily in a managerial or executive capacity. 
The Director, Vermont Service Center, denied the petitiOn. The Director concluded that the 
evidence of record did not establish that: (1) the Petitioner had acquired sufficient physical premises 
to house its new office; and (2) the Beneficiary would be employed in the United States in a 
managerial or executive capacity within one year of approval of the new office petition. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred in 
denying the petition and contends that it has met all requirements to establish eligibility for the 
requested classification. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(l5)(L) of the Act. 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. !d. 
The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of P-R~G- LLC 
(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) ofthis 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 q"\lalifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in the. United States; however, the work in the United 
States need not be the same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(3)(v) further provides that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office 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 involved executive or managerial 
authority over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (1)(1 )(ii)(B) or (C) of this section, supported by information 
regarding: 
(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. 
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Matter of P-R-G- LLC 
II. PHYSICAL PREMISES 
The Director deriied the petition, in part, based on a finding that the Petitioner did not establish that it 
had secured sufficient physical premises to house the new office at the time the petition was filed. 
See 8 C.F.R. § 214.2(1)(3)(v)(A). 
A. Evidence of Record 
The Petitioner stated that it intends to operate multiple retail convenience or grocery store outlets 
and indicated that the Beneficiary's worksite would be at in 
Pennsylvania .. In 
a cover letter accompanying the initial evidence, the Petitioner noted 
that it planned to locate a maximum of four employees at this office address, while store managers 
and operational staff would be based at store locations. 
The Petitioner submitted a lease agreement for the premises which identifies the 
landlord as The lease is for 250 square feet of office space, with a monthly 
rent of $300 and a one-year term commencing on December 1, 2015. The lease provides that the 
Petitioner may use the premises as office space only and cannot sublease the space to any other 
individual. 
In its business plan, the Petitioner states that its offices are located at m 
Pennsylvania and that it intends to establish a convenience store in The Petitioner did not 
identify any proposed store locations or the anticipated costs of acquiring a store. It stated that its 
claimed parent company had made an initial investment of $50,000 and would transfer an additional 
$50,000 to $75,000 to the Petitioner during its initial )'ear of operations. 
The Director later issued a request for evidence (RFE) advising the Petitioner that its lease 
agreement for 250 square feet of office space was inconsistent with the proposed nature and scope of 
its retail business. The Director provided a list of additional evidence the Petitioner could submit to 
establish that it had secured sufficient physical premises. 
In response, the Petitioner submitted a second lease agreement for the premises at 
which identifies as the landlord. This agreement 
specifies that the Petitioner has leased office space at a monthly rent of $3 75, with a commencement 
date of February 8, 2016. The Petitioner also provided a Certificate of Liability Insurance which 
indicates that it has coverage at this location with a policy effective on March 15, 2016. In an 
accompanying letter, the Petitioner explained that this is a "revised lease directly from the landlord." 
The Petitioner stated that this is an "administrative office" and most employees will be located in 
retail locations. 
The Petitioner stated that it has "two agreements to purchase the stores," is "going through the due 
diligence," and is "ready to commence the operation within 
a short period of time upon the approval 
· of the instant petition." The Petitioner emphasized that it has over $50,000 in funds available and 
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Matter of P-R-G- LLC 
that the foreig~ entity will remit the necessary funds to purchase the two locations when the 
Beneficiary obtains his visa. 
The Petitioner also provided an undated "Statement defining US worksite" from the foreign entity 
stating that the Beneficiary's work site will be at the address, and that the 
Petitioner intends to buy two stores located in Pennsylvania - and 
The foreign entity submitted a map identifying the lqcation of the office and these 
two stores. 
( 
The Petitioner submitted two letters of intent expressing the proposed, non-binding terms for the 
purchase of two different stores: doing business as ' m 
Pennsylvania and located in Pennsylvania. Both proposed 
purchases would require a $25,000 deposit (to be paid upon approval of this L-1 petition) with the 
remaining balances to be paid by the Petitioner at Closing, which would occur on or before June 1, 
2016. 
Finally, the Petitioner provided a revised business plan which 
indicates that the company would 
open two stores, rather than one store, during its initial year of operations, and included location 
analyses for the and stores. 
The Director denied the petition, concluding that the Petitioner did not establish that it had secured 
sufficient physical premises to house the new office. In denying the petition, the Director observed 
that the Petitioner submitted two different lease agreements for the same office and did not provide 
an explanation, thus undermining the credibility of both lease agreements. Further, the Director 
noted "it is unclear why your company would require an administrative office from which to run a 
store or chain of stores prior to actually acquiring a store," noting that the Petitioner must establish 
that it has acquired sufficient physical premises to commence business immediately upon the 
Beneficiary's entry to the United States. 
On appeal, the Petitioner explains that the lease agreement submitted at the time of filing was a 
sublease, noting that it "wanted to enter into direct lease agreement but the process to complete the 
same was time consuming and the reply to Request for Evidence was needed to reply at the earliest." 
The Petitioner states that it felt the need to enter into a direct lease agreement 
when it received the 
Director's second RFE. · 
The Petitioner also addresses the Director's observation that it does not appear to require an 
administrative office, noting that it had acquired the office "in order to carry out incidental work 
towards the operation and commencing of new business in USA." The Petitioner states that after the 
purchase of a store, the Beneficiary would move to a small office space in the store. Finally, the 
Petitioner states that the Beneficiary is ready to finalize the purchase of either ' 
or ' upon entering the United States in L-1 A status. 
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Matter of P-R-G- LLC 
B. Analysis 
Upon review of the petition and evidence of record, including the Petitioner's submission on appeal, 
we conclude that the Petitioner has not established that it had secured sufficient physical premises to 
house the new office as of the date of filing the petition. 
The Petitioner claimed at the time of filing to have leased an office at prior to 
filing the petition, but also stated in its business plan that its office is located at in 
Pennsylvania, which is identified elsewhere in the record as the residential address of 
a partner/owner of the foreign entity. 
Moreover, the Petitioner has not resolved the inconsistency in the record pertaining to its two lease 
agreements for the location. The Petitioner's explanation that the initial lease 
agreement entered into was a sublease agreement with as a matter of 
expediency in order to respond to an RFE is not credible, as the Petitioner submitted this lease 
agreement with its initial evidence and not as part of an RFE response. 
Further, the Petitioner has not submitted evidence 
establishing that its agreement with 
was a valid sublease agreement. Specifically, the Petitioner has not provided (1) a copy 
of the master lease agreement between and the claimed landlord, 
(2) evidence that was authorized to sublease the premises or a 
portion thereof, or (3) other evidence that would establish the legitimacy of this agreement, such as 
evidence that the Petitioner actually paid the $1000 security deposit and monthly rent to 
under the terms,. of the claimed sublease agreement. A petitioner's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of 
proof. See Matter ofSojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter a/Treasure Crqfi 
ofCal., 14 I&N Dec. 190 (Reg'] Comm'r 1972)); see also Matter ofChawathe, 25 I&N Dec. 369, 
376 (AAO 201 0). The P~titioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. at 376. 
In addition, we note that the Petitioner's lease agreement with seems to indicate 
that this company also occupies the same office suite at as this is the only 
mailing address provided for the company. The Petitioner has not explained how it was 
subsequently able to enter a direct lease agreement with the owner of the premises if 
was also directly leasing and occupying the same premises. The record does not include 
a description of the premises, a floor plan, or other evidence showing the office suite or the 
Petitioner's portion ofthe suite. 
The Petitioner's agreement with was signed on February 8, 2016, nearly 
two months after the petition was filed. While this lease is accompanied by proof of insurance for 
this location as of March 2016, the evidence of record is insufficient to establish that the Petitioner 
secured this office space prior to filing the petition. The Petitioner must establish eligibility at the 
· time of filing the nonimmigrant visa petition and must continue to be eligible for the benefit through 
adjudication. 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved at a future date after the 
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Matter of P-R-G- LLC 
Petitioner or Beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 
In sum, the Petitioner has not resolved the inconsistencies in the record with independent, objective 
evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
For this reason, we find the evidence insufficient to establish that the Petitioner had a valid lease 
agreement in place at the time the petition was filed. 
Further, even if the Petitioner had established that it had secured the claimed office space, we find 
that the Director properly raised the question of whether an office is sufficient premises for a new 
office that intends to operate one or more retail stores. The regulations do not specify the type of 
premises a petitioner seeking to establish a new office must secure. The phrase "sufficient physical 
premises" is broad, leaving U.S. Citizenship and Immigration Services (USCIS) some flexibility in 
adjudicating this legal requirement. However , the Petitioner bears the burden of establishing that its 
physical premises should be considered "sufficient" as required by the regulations at 8 
C.F.R. § 
214.2(1)(3)(v)(A). To do so, it must clearly identify the nature of its business, the specific amount 
and type of space required to operate the business , its proposed staffing levels, and evidence that the 
space can accommodate the company's growth during the first year of operations. 
Here, the Petitioner intends to operate one or two retail stores and eventually operate a chain of 
stores. As such, it is reasonable to expect that it provide evidence of the specific store or location 
from which it intends to operate, or at least identify potential locations supported by appropriate 
evidence as of the date of filing. We acknowledge the Petitioner's claim that it intended to finalize 
the purchase of its first location upon the Beneficiary's arrival in the United States so that he can 
conduct due diligence of potential properties . However, at the time of filing the petition, the 
Petitioner did not identify any potential retail stores that it intended to acquire, nor did it set forth the 
anticipated costs associated with acquiring and potentially renovating properties in its initial business 
plan; it simply stated that it would acquire a store in Pennsylvania. Accordingly, we 
cannot find that the Petitioner established as of the date of tiling that it was prepared to commence 
operations as a retailer immediately upon approval of the petition. 
Based on these deficiencies and inconsistencies , the Petitioner has not established that it had secured 
sufficient physical premises to house the new office as of the date of filing the petition. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also denied the petition, in part, based on a finding that the Petitioner did not establish 
that the Beneficiary would be employed in a managerial or executive capacity within one year of 
approval of the new office petition. 
J Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 110l(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primaril y": 
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Matter of P-R-G- LLC 
(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. 
Further, "[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." !d. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives on,ly general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS must take into account the reasonable needs of the organization , in 
light ofthe overall purpose and stage of development ofthe organization. See section 101(a)(44)(C) 
ofthe Act. 
A. Evidence of Record 
\ 
At the time of filing, the Petitioner submitted a letter from the foreign entity which describes the 
Beneficiary's proposed duties during the initial two years of operation . The foreign entity noted that 
he has already made inquiries about potential stores near and, upon arrival in the United 
States, would be responsible for the purchase and renovation of a store, as well as arranging for the 
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Matter of P-R-G- LLC 
initial marketing and promotion of the store which would open in the fourth or fifth month. The 
foreign entity stated that thereafter, the Beneficiary would perform the following duties: 
• The next 6-12 months - [the Beneficiary] would concentrate on running the store 
and establishing customers. He will employ one or two persons, mostly in the 
beginning on a part-time basis and later on would make them work full time as 
sales person in the stores . . . . By this time he would also put selected items of 
his store on internet for sale and would also start home delivery for its customers; 
• In the second year[, the Beneficiary] would start looking for another store; 
• During the first year he would make all efforts to establish the brand name of his 
store ... and would also make contacts with other stores and supply them Indian 
groceries for their customers; 
• In this matter[, the Beneficiary] would expand its business. [He] would conduct 
retail store and will go on to whole sale store to sell products to other grocery 
stores. 
The Petitioner's initial business plan, as noted above, indicated that the Petitioner intends to operate 
one store during its first year of operations, with additional stores to be opened in years three and 
five. The business plan indicates that the Beneficiary will allocate 70 percent of his time in the first 
year to overseeing the "convenience store department" and performing the following duties: 
• Review and analyze sales and activity reports, potential improvements, and 
performance data to measure productivity and goal achievement ... (10%) 
• Direct, design and implement strategic plans in a cost-effective and time-efficient 
manner (1 0%) 
• Help customers to choose the best products that will answer their needs ( 1 0%) 
• Stay alert to new trends in the convenience store industry (5%) 
• Determine staff requirements, hire personnel, oversee training of new personnel 
through his staff, and monitor management personnel activities ... (1 0%) 
• Direct and approve service and product strategies, price policies, and discounts 
... (10%) 
• Work on the setting up of a strategy for being time efficient and, therefore, reduce 
costs (10%) 
• Plan a weekly meeting to coordinate the operations of the convenience store (5%) 
The business plan indicates that the Beneficiary would spend the remaining 30% of his time 
overseeing a marketing department, including responsibility to establish and communicate goals and 
objectives (10%); promoting the company through social media (5%); developing new innovative 
marketing campaigns (10%); and directing a competitive analysis (5%). 
According to the business plan, the Petitioner intends to hire a store manager, two cashiers, a stock 
clerk, and a marketing manager (all on a full-time basis) during the first year, with anticipated salary 
expenses of $190,000. The business plan included proposed duties for each position. A proposed 
organizational chart indicates that the Beneficiary would directly supervise the ll?arketing manager 
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Matter of P-R-G- LLC 
and store manager, who would oversee the cashiers and clerk. The business plan states that the total 
first-year investment from the foreign entity would be between $100,000 and $125,000. 
As noted, in response to an RFE, the Petitioner submitted a revised business plan indicating that the 
company intends to operate two stores (located in and during the initial 
year of operations. According to the revised plan, the Petitioner would hire ten employees during 
the first year (two store managers, two marketing managers, four cashiers, and two stock clerks). 
The revised business plan stated that the total investment from the foreign entity would be $50,000 
and identified the purchase prices of the two stores as $130,000 and $260,000, respectively. As 
discussed above, the Petitioner also submitted a letter from the foreign entity indicating that the 
Petitioner intended to purchase two stores located in Pennsylvania rather than the 
and stores mentioned in the revised business plan. 
The Director ultimately denied the petition, concluding that the Petitioner did not establish that the 
Beneficiary would be employed in a managerial or executive capacity within one year of approval of 
the petition. The Director noted discrepancies between the Petitioner's business plans with respect 
to the number of stores to be acquired during the first year of operations and discrepancies in the 
Petitioner's RFE response with respect to the specific stores the Petitioner intends to acquire and 
operate. Further, the Director found there was insufficient evidence that the company had acquired 
or 
would soon acquire a retail operation. 
The Director also found that the submitted personnel plans were not realistic given the nature of the 
intended business and questioned the Petitioner's 
need for two full-time marketing managers and the 
claimed proposed structure of the company. Overall, the Director found the evidence insufficient to 
establish how the company would grow to support a managerial or executive position within one 
year. 
On appeal, the Petitioner objects to the Director's finding that its business plan does not appear to be 
realistic, noting that such a determination should be made after one year when the Petitioner applies 
for an extension. The Petitioner emphasizes that the foreign entity has a net worth of $2.1 million 
and is capable of supporting the new office during the first year of operations and beyond. The 
Petitioner states that its business plan is both realistic and sufficiently detailed. 
The Petitioner acknowledges the confusion regarding the specific stores that it intends to acquire. 
The Petitioner notes that there were initially two stores identified at the time the L-1 petition was 
submitted and but explains that at the time it replied to the 
RFE, it had submitted letters of intent for two different stores ( and 
The Petitioner stated that at the time, the owner of the store was in the 
process of closing down and the owner could not wait for the approval of the petition to sell it. The 
Petitioner indicates that it has now signed ggreements to purchase both the and 
and may decide to buy both stores. 
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Matter of P-R-G- LLC 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary would be 
employed in a managerial or executive capacity within one year of approval of the new office 
petition. 
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. See 8 
C.F.R. § 
1
214.2(1)(3)(v)(C). 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 actu~l need for a manager or executive who will primarily perform qualifying duties. 
See generally, 8 C.F.R. § 214.2(1)(3)(v). 
When examining the managerial or executive capacity of the Beneficiary, we 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 in a managerial or executive capacity. !d. 
Beyond the description of the Beneficiary's proposed duties, we consider the Petitioner's business 
and hiring plans and evidence that the business will grow sufficiently to support the Beneficiary in 
the intended managerial or executive capacity. Accordingly, the totality of the record must be 
considered in analyzing whether the proposed duties are plausible considering the Petitioner's 
anticipated staffing levels and stage of development within a one-year period. See generally, 8 
C.F.R. § 214.2(1)(3)(v)(C). 
Here, the Petitioner submitted two different overviews of the Beneficiary's proposed duties at the 
time of filing, and the record contains three different descriptions of the proposed nature and scope 
of the U.S. entity during the first year of Qperations and beyond. The foreign entity provided a letter 
indicating that the Beneficiary would be directly involved in running the company's first store at the 
end of the first year of operations with the assistance of one or two sales persons, while also 
engaging in wholesale of Indian products to other stores. In addition, this letter suggested that the 
Petitioner's store would not open until four to five months after the Beneficiary's arrival in the 
United States. At the same time, the Petitioner submitted a business plan indicating that it would 
immediately hire a total of five full-time employees, including a store manager, marketing manager, 
a clerk, and two cashiers during the first year of operations. The Petitioner did not attempt to 
reconcile these two different descriptions of the intended timeline for opening its first store and 
intended organizational structure and we cannot determine which one represents the company's 
actual intent. , 
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Matter of P-R-G- LLC 
The foreign entity's letter indicated that the Beneficiary would be supervising only one or two sales 
people at the end of the first year of operations, and suggests that he would remain responsible for all 
other non-managerial duties associated with operating a retail store except for perhaps operating a 
cash register. The position description included in the business plan, while it indicates that the 
Beneficiary would supervise a subordinate manager or supervisor, also states that the Beneficiary 
would perform non-managerial duties such as helping customers choose products, monitoring 
industry trends, promoting the company through social media, performing competitive analysis, and 
developing marketing campaigns. 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 also, sections 101(a)(44)(A) arid (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); Matter of Church 
Scientology Int'l, 19 I&N Dec. 593, 604 (Comm'r 1988). 
In response to an RFE, the Petitioner revised its business plan and indicated that it intended to 
operate two stores and hire ten employees during the initial year of operations, while identifying a 
total of four different stores that it intended to purchase upon the Beneficiary's arrival to the United 
States. Again, the Petitioner had'initially indicated that that it would not open a second store until its 
third year of operations. The Petitioner has also submitted inconsistent information regarding the 
intended investment from the foreign entity, with one version of the business plan stating that it 
expects to receive up to $125,000 from the foreign entity and the other indicating an intended 
investment of $50,000. Finally, as discussed in the previous section, the record does not contain 
evidence that the Petitioner had identified a potential retail location as of the date of filing, thus 
undermining the Petitioner's claim in the business plans that it' expected to fully staff the new 
operation immediately upon the Beneficiary's arrival in the United States. The Petitioner has not 
resolved these inconsistencies with independent, objective evidence pointing to where the truth lies. 
See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Given the unresolved inconsistencies in the Petitioner's statements regarding its business plans, the 
Petitioner has not met its burden to demonstrate the proposed nature of the entity, its organizational 
structure, and its financial goals, as required by 8 C.P.R. § 214.2(1)(3)(v)(C)(l). The Petitioner 
contends that the Director erred by finding that its business plan does not appear to be realistic, 
noting that such a determination should be made after one year when the Petitioner applies for an 
extension. However, it has submitted two different business plans and a statement from its foreign 
parent company regarding the company's first year hiring plans which does not resemble either 
business plan. For these reasons, the submitted evidence does not 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.P.R.§ 214.2(1)(3)(v). 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
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Matter of P-R-G- LLC 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
Here, while it appears that the Beneficiary would have authority over the new office, the Petitioner 
has not established by a preponderance of the evidence that he would primarily perform managerial 
or executive duties within one year of approval of the petition. Due to the unresolved 
inconsistencies in the Petitioner's business and hiring plans, it has not demonstrated that the 
Beneficiary, as a personnel manager, will ,"he primarily supervising a subordinate staff of 
professional, managerial, or supervisory personnel. See section 10l(a)(44)(A)(ii) of the Act. 
Furthermore, the Petitioner has not established that it would employ a staff that will relieve the 
Beneficiary from performing non-qualifying duties so that he would be able to primarily engage in 
managerial or executive duties within one year. 
IV. CONCLUSION 
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. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofP-R-G-, LLC, ID# 76793 (AAO Nov. 23, 2016) 
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