dismissed L-1A Case: Retail Hardware

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal pnvac~ 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 09 067 50328 Office: VERMONT SERVICE CENTER Date: MAY 1 4 2010 
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: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. 
Please be advised that any further inquiry that you might have concerning your case must be made to 
that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have 
additional information that you wish to have considered, you may file a motion to reconsider or a 
motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. 
5 103.5. 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. Please be aware that 8 C.F.R. 5 
103.5(a)(l)(i) requires that any motion must be filed within 30 days of the decision that the motion 
seeks to reconsider or reopen. 
Thank you, 
u Perry Rhew 
Chief, Administrative Appeals Office 
EAC 09 067 50328 
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 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a Tennessee corporation, states that it intends to operate a retail 
hardware store. It claims to be a subsidiary of located in Ahmedabad, India. The petitioner 
seeks to employ the beneficiary as the manager of its new office in the United States for a period of one year. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed by the U.S. entity in a primarily managerial or executive capacity. The director based the decision, 
in part, on a conclusion that the petitioner did not establish that the U.S. company currently has the staff in 
place to relieve the beneficiary from performing non-managerial tasks. 
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, the petitioner asserts that the petitioner submitted 
sufficient evidence to establish that the beneficiary would be employed in a primarily managerial or executive 
capacity within one year of approval of the petition. Specifically, counsel asserts that the petitioner 
established that the beneficiary will hire five employees during the first year of operations, and will directly 
supervise subordinate supervisors and managers. Counsel submits a lengthy 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 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 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 
EAC 09 067 50328 
Page 3 
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 
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 (l)(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 
As a preliminary matter, the AAO notes that the director erred by adjudicating the instant matter as a petition 
involving an established U.S. entity, rather than applying the regulations pertaining to new offices at 8 C.F.R. 
5 214.2(1)(3)(~). When a new business is 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 
activities not normally performed by employees at the executive or managerial level and that often the full 
range of managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant 
classification during the first year of operations, the regulations require the petitioner to disclose the business 
plans and the size of the United States investment, and thereby establish that the proposed enterprise will 
support an executive or managerial position within one year of the approval of the petition. See 8 C.F.R. 
5 214.2(1)(3)(v)(C). 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. The petitioner must 
also establish that the beneficiary will have managerial or executive authority over the new operation. See 8 
C.F.R. 5 2 14,2(1)(3)(v)(B). 
EAC 09 067 50328 
Page 4 
Although the director acknowledged in the request for additional evidence issued on January 7, 2009 that the 
petitioner is a "new office" as defined at 8 C.F.R. 5 214.2(1)(l)(ii)(F), the director nevertheless based the 
adverse decision, in part, on the petitioner's staffing levels at the time of filing, rather than applying the 
regulatory provisions applicable to new offices at 8 C.F.R. 5 214.2(1)(3)(~). Accordingly, the director's 
analysis of the beneficiary's proposed position was flawed as it did not take into account the petitioner's 
business plan and other evidence submitted to establish that the U.S. company would support a managerial or 
executive position within one year. Although the director's analysis with respect to the petitioner's current 
staffing levels will be withdrawn, the AAO concurs with the director's ultimate conclusion that the petitioner 
failed to establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
As the AAO's review is conducted on a de novo basis, the AAO will herein address the petitioner's evidence 
and eligibility. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). The AAO maintains plenary power to review each appeal on a de novo basis. 5 
U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. 
US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). 
The primary issue in this matter is whether the petitioner established that the beneficiary would be employed 
in a primarily managerial or executive capacity within one year of the approval of the petition. 
Section 10 1(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
EAC 09 067 50328 
Page 5 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the Form 1-1 29, Petition for a Nonimmigrant Worker on December 3 1, 2008. In a letter dated 
December 30, 2008, the petitioner stated that the beneficiary would perform the following duties as manager of 
the new office in the United States: 
Establish physical ofice in the States of Tennessee to promote [the petitioner's] 
hardware material, home improvement items, and related products business within the 
U.S., Canada, and Central and Latin America. 
Establish warehouse for efficient and timely distribution of [the petitioner's] range of 
products within the US., Canada and Central and Latin America. 
Establish/liaise on a regular basis with the Petitioner's key customers and distributors. 
Ensure that timely and efficient after sales services is provided to customers in the U.S. 
Business development. 
The beneficiary would be responsible for overall operations including but not limited to 
promoting the company's products in the United States, Canada, Central and South Americas. 
Specifically, the Beneficiary would be responsible for expanding its market base in these areas. 
Additionally, the Beneficiary would lead in the development of marketing strategies. The 
Beneficiary will also spearhead and direct business development and sales of [the petitioner's] 
products. In addition, [the beneficiary] will oversee the timely distribution of products in these 
countries. 
[The beneficiary] would also be responsible for hiring personnel for the Petitioner. He would be 
responsible for supervising the sales operations of the Petitioner. His specific functions include, 
but are not limited to overseeing the creation of plans to accomplish sales and profitability, 
primarily achieved by calling on new and established accounts, identifLing sales opportunities 
and other business partners, developing sales forecasts and managing the allocated sales budget. 
In addition, he would be responsible for overall management of [the petitioner], including hiring 
and firing personnel, overseeing training programs, reviewing and developing progressive and 
proactive compensation and benefits programs to provide motivation and incentives to deserving 
employees, overseeing development, implementation and management of human resources (HR) 
policies and procedures, and ensuring HR administrative legal compliance with federal and state 
regulations. 
EAC 09 067 50328 
Page 6 
In a letter dated December 30, 2008, counsel for the petitioner stated that the beneficiary would devote 100% of 
his time to the following duties: 
Correspond with offshore departments for carrying out the operations of the Company; 
Receiving the latest updates n the functioning of the different departments and resolving 
issues; 
Review Budgets, Financial Reports and other financial documents; 
Keeping track of achieving the company's goals; 
Attend and preside over meetings and oversee the functioning and development of 
ongoing projects. 
Supervising and monitoring the project team and is responsible for hiring and firing 
employees. 
The petitioner submitted a proposed organizational chart for the U.S. company which indicates that the 
beneficiary's direct subordinates would include a purchase manager/supervisor, a sales manager, and a part-time 
accountant. The chart shows that the sales manager would supervise a salesman and a technician. 
The petitioner also submitted a business plan for the U.S. company, noting that its mission is "to offer quality 
hardware products in a customer-friendly shopping environment." The petitioner's business plan, at section 6.1, 
includes a personnel plan, where the petitioner indicates that it will have the following staff members: manager, 
assistant manager, office manager/accountant, checkers (full-time and part-time), two customer assistants, and 
stockers (full-time and part-time). On the same page of the business plan, the petitioner presents its personnel 
plan in table form, along with projected salaries for each employee. The petitioner indicates that it will employ the 
following workers in 2009: manager, purchase manager/supervisor, sales manager, sales man, technician, and 
part-time accountant, and pay total salaries of $240,000. The petitioner's "start-up summary" lists total start-up 
expenses and asset requirements for the new company as $230,000. 
The etitioner also submitted a lease agreement for "a portion of the building" located at - 
in Cookeville, Tennessee. An addendum to the lease agreement indicates that the petitioner may use 
1,200 square feet of the premises. 
The director issued a request for additional evidence (RFE) on January 7, 2009. The director instructed the 
petitioner to submit the following evidence related to the beneficiary's proposed position and the establishment of 
the new office: (1) photographs of the interior and exterior of the leased premises; (2) a business plan that 
provides specific dates for each proposed action to be taken by the new company for the next two years; (3) a 
more detailed description of the beneficiary's proposed duties, listing specific tasks to be performed; (4) 
information regarding the size of the United States investment; and (5) evidence to document the transfer of any 
funds between the foreign and United States entity. 
In a response dated February 20, 2009, counsel for the petitioner further described the beneficiary's proposed 
position as follows: 
Beneficiary will set up the new business in the United States, establish its policies and 
procedures, hire employees, commence business, try to obtain large customer accounts, market 
EAC 09 067 50328 
Page 7 
the business, promote sales, ensure the smooth running of the new business, manage it, supervise 
employees, hire and fire employees, authorize their leave, etc., and generally exercise discretion 
over the day-to-day running of the business. . . . Beneficiary will manage the business and 
supervise his supervisory personnel who will ultimately relieve him from performing non- 
qualifying duties. 
Counsel further stated that the beneficiary's specific duties would include the following: 
Ultimate supervisory control of all employees including Purchase Manager/Supervisor, 
Sales Manager, Accountant. 
Make decisions regarding hiring and firing of employees. 
Correspond with offshore departments for canying out the operations of the Company. 
Receiving the latest updates on the functioning of the different departments (i.e., 
Assistant Manager and Sales Manager) and resolving issues. 
Review budgets, Financial Reports and other financial documents provided by the 
Operations Manager and Accountant. 
Keeping track of achieving the company's goals. 
Attend and preside over meetings and oversee the functioning and development of 
ongoing projects. 
Supervising and monitoring the project team and hiring and firing employees. 
Judgment and Decision Making by considering the relative costs and benefits of 
potential actions to choose the most appropriate one. 
Management of Personnel Resources by motivating, developing and directing people as 
they work, identifjling the best people for the job. 
Making business decisions and solving problems to choose the best solutions. 
In response to the director's request for information regarding the size of the U.S. investment, the petitioner stated 
that the proposed investment in the U.S. company would be approximately $230,000. Counsel stated that the 
foreign entity's bank statements establish that the company has the financial ability to commence business in the 
United States. Counsel noted that the beneficiary would also "acquire personal loans from friends and family in 
the amount of $100,000 to $1 10,000 and supplement the balance from his savings. The petitioner submitted bank 
statements for the foreign entity's account and noted that "total deposits in the account" as of July 3 1, 2008 were 
approximately $9,400. 
Finally, in response to the director's request for photographs of the interior and exterior of the premises where the 
business will be conducted, the petitioner submitted photographs of a Citgo gas station and what appears to be a 
convenience store. 
The director denied the petition on February 26, 2009, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. As discussed, insomuch as the 
director's decision was partially based on a finding that the petitioner had not established that it currently has staff 
to provide the services of the company, the director's comments regarding the staffing of the company will be 
withdrawn. 
EAC 09 067 50328 
Page 8 
On appeal, counsel for the petitioner asserts that the petitioner has established that the beneficiary will serve as a 
bona fide manager pursuant to the statutory definition of "managerial capacity," and that he will function at a 
senior level within the organization's hierarchy. Counsel asserts that the beneficiary will manage five employees 
during the first year of operations, including three supervisors, as well as contractors and vendors. In addition, 
counsel notes that, by the end of the first year, the beneficiary will be seeking additional business locations, with 
responsibility for "the due diligence of mergers and acquisitions." 
Counsel acknowledges that the petitioner will be a small company initially, but notes that there will be two full- 
time supervisors (a purchase manager and a sales manager), as well as a part-time accountant. Counsel cites 
National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5" Cir. 1989) and Mars Jewelers, Inc. v. INS, 702 
F. Supp. 1570, 1573 (N.D. Ga. 1988), in support of her claim that the statute was not intended to limit managers 
or executives to persons who supervise a large number of persons or large enterprises. 
With respect to the duties to be performed by the beneficiary's subordinates, counsel states: 
[Tlhe Purchase Manager will spend at least forty hours per week on ordering and maintaining 
inventory, stock checking, handling customer complaints, quality assurance, recommending 
popular items, etc. The Sales manager will set up means of promoting products of the business 
and establishing new accounts, and coordinating the sales team. The Sales Man and Technician 
under the Sales Manager will work for thirty to thirty five hours per week and, as the 
Organization Chart says, the Accountant will start working part-time. Petitioner's employees will 
carry out the listed duties on a full-time basis. 
Petitioner is not simply making assertions; this fact has been established by the business plan, a 
critical supporting document as required by Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972). The company included the expenses of its employees salaries as 
demonstrated by its business plan will be able to bear them. 
Upon review, the petitioner in this matter has failed to establish how the United States operation 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. The petitioner has 
failed to sufficiently describe the beneficiary's proposed duties after the petitioner's first year in operation; has 
failed to sufficiently describe the nature, scope, organizational structure, and financial goals of the new office; 
and has failed to establish that a sufficient investment has been made in the United States operation, as 
required by 8 C.F.R $ 214.2(1)(3)(v)(C). 
As a preliminary matter, the AAO notes that, while the petitioner has submitted a fairly detailed business plan 
outlining the petitioner's proposed retail hardware business, the petitioner's lease and photographs indicate 
that the company would be doing business from the premises of an existing gas station/convenience store.' 
that a Citgo gas station is located at this address. See http://www.citgo.com (accessed on April 22, 2010). 
EAC 09 067 50328 
Page 9 
According to the submitted lease agreement, the petitioner has leased only a portion of the premises. 
However, the AAO finds it unlikely that the petitioner will be operating a hardware store from a gas station, 
and the submitted photographs do not show an available 1,200 square feet of rentable space on the premises. 
Therefore, it is reasonable to conclude that the petitioner will either be operating the gas station, or that the 
petitioner has yet to secure any viable physical premises for its hardware store. 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). 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. Id. at 59 1. Based on the evidence submitted, 
the AAO cannot determine the nature of the business intends to operate. However, the submission of a lease 
agreement for a gas station raises significant questions regarding the probative value of the petitioner's 
business plan for a hardware store. 
Further, the petitioner has failed to establish that the beneficiary will be performing primarily "managerial" or 
"executive" duties after the petitioner's first year in operation. When examining the proposed executive or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the proposed 
job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe 
the duties that will be performed by the beneficiary and indicate whether such duties will be either in an 
executive or managerial capacity. Id. 
Here, the petitioner's and counsel's descriptions of the beneficiary's proposed duties, while lengthy, are vague 
and provide little insight into what types of duties the beneficiary would primarily perform as manager of the 
company at the end of one year. For example, the petitioner stated that the beneficiary will be "responsible 
for overall operations," "responsible for overall management," and "hiring and firing personnel," while 
counsel noted that the beneficiary will be "keeping track of achieving the company's goals," supervising and 
monitoring "the project team," and will "preside over meetings and oversee the hnctioning and development 
of ongoing projects." These general statements do not convey an understanding of what the beneficiary 
would be doing on a day-to-day basis. 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. 1103 (E.D.N.Y. 1989), affd, 
905 F.2d 4 1 (2d. Cir. 1990). 
Moreover, several of the duties attributed to the beneficiary appear to be incompatible with the type of 
business the petitioner stated it would be operating. For example, counsel stated that the beneficiary would be 
establishing an office and warehouse for promotion and distribution of hardware products within the U.S., 
Canada and Latin America, overseeing the distribution of products in these countries, establishing and liaising 
with key customers, and ensuring the provision of after-sales services to U.S. customers. Given the 
petitioner's business plan indicating that it will initially operate one retail hardware store to service the local 
community in Cookeville, Tennessee and other evidence in the record indicating that the petitioner may 
actually intend to operate a gas station, the petitioner has not established that it will be engaged in 
international distribution and promotion activities, or providing after-sales services to retail buyers of 
consumer hardware products or gasoline. 
EAC 09 067 50328 
Page 10 
In response to the director's request for a more detailed description of the beneficiary's duties, the petitioner 
submitted a description which included many of the same vague duties, and added that the beneficiary would 
be "making business decisions and solving problems," exercise "judgment and decision making," establish the 
company's policies and procedures, manage the business, "ensure the smooth running of the new business," 
and "generally exercise discretion over the day to day running of the business." This description did not 
provide any additional insight into the beneficiary's actual duties, and, like the previous descriptions, is vague 
and non-specific in describing the position. Reciting the beneficiary's vague job responsibilities or broadly- 
cast business objectives is not sufficient; the regulations require a detailed description of the beneficiary's 
daily job duties. The petitioner has failed to provide any detail or explanation of the beneficiary's proposed 
activities in the course of his daily routine. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of 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). While it appears that the beneficiary would exercise the 
requisite level of authority over the U.S. company as its manager, the vague position descriptions provided 
fall significantly short of establishing that the beneficiary's primary duties would be managerial or executive 
in nature. 
Likewise, the record is not persuasive in establishing that the beneficiary will be, after the first year, relieved 
of the need to perform the non-qualifying tasks inherent to his duties and to the operation of the business in 
general. The regulation at 8 C.F.R. 2 14.2(1)(3)(v)(C)(l) requires the petitioner to provide evidence regarding 
the proposed nature of the business describing the scope of the entity, its organizational structure, and its 
financial goals. The petitioner must also establish that there is a realistic expectation that sufficient staff will 
be hired within one year to relieve the beneficiary from performing the non-qualifying duties associated with 
operating a retail hardware store. 
The petitioner has submitted a detailed business plan outlining its plans for its proposed hardware store. 
However, as discussed above, the petitioner has signed a lease for a gas station and convenience store, and the 
nature of the intended business is in question. Furthermore, the "personnel plan" summarized in the business 
plan contains two different planned organizational structures. The petitioner states that it intends to hire an 
assistant manager, office managerlaccountant, checkers, customer assistants and stockers. On the same page, 
it indicates that it will hire a purchase manager, a sales manager, a salesman, a technician, and a part-time 
accountant. 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 59 1-92. The AAO cannot determine which personnel plan, if either, represents the petitioner's 
anticipated organizational structure. 
Furthermore, the petitioner's plan indicates that the petitioner intends to be fully staffed and paying salaries of 
$20,000 per month as of January 2009. Given that the petition was filed on December 31, 2008, this hiring 
plan does not appear to be realistic. As noted above, the petitioner does not appear to have acquired premises 
EAC 09 067 50328 
Page I I 
suitable for a hardware store and there is nothing in the record to suggest that the company is prepared to 
commence business operations immediately upon approval of the petition. For example, the petitioner did not 
have a federal employer identification number as of the date of filing nor has it purchased any inventory. In 
light of the uncertainty regarding the nature of the petitioner's business, the two different personnel plans 
included in the business plan, and the lack of a realistic timeline for hiring additional staff, the petitioner has 
not demonstrated that the beneficiary would be supervising two or more subordinate supervisors within one 
year. 
Even if the AAO accepted the anticipated structure indicated in the petitioner's organizational chart as the 
petitioner's likely structure after one year in operation, it is noted that a retail store with three "managers" and 
only one salesperson would likely require its managers to regularly perform non-qualifying duties related to 
the day-to-day operations of the store, rather than performing primarily managerial or executive duties. In 
addition, notwithstanding the job title assigned to the "purchase manager supervisor," the petitioner does not 
indicate that this individual would supervise any subordinate workers. 
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989), and Mars 
Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size 
of a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or 
executive capacity. First, the AAO notes that counsel has furnished no evidence to establish that the facts of 
the instant petition are analogous to those in National Hand Tool Corp., where the Fifth Circuit Court of 
Appeals decided in favor of the legacy Immigration and Naturalization Service (INS), or Mars Jewelers, Inc., 
where the district court found in favor of the plaintiff. With respect to Mars Jewelers, the AAO is not bound 
to follow the published decision of a United States district court in matters arising within the same district. 
See Matter of K-S-, 20 I&N Dec. 715 (HlA 1993). Although the reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO, the analysis does not have to be 
followed as a matter of law. Id. at 719. 
In both National Hand Tool Corp. and Mars Jewelers, Inc., the courts emphasized that the former INS should 
not place undue emphasis on the size of a petitioner's business operations in its review of an alien's claimed 
managerial or executive capacity. The AAO has long interpreted the regulations and statute to prohibit 
discrimination against small or medium-size businesses. However, consistent with both the statute and the 
holding of National Hand Tool Corp., the AAO has required the petitioner to establish that the beneficiary's 
position consists of primarily managerial or executive duties and that the petitioner will have sufficient 
personnel to relieve the beneficiary from performing operational and/or administrative tasks. Like the court 
in National Hand Tool Corp., we emphasize that our holding is based on th'e conclusion that the petitioner 
failed to establish that beneficiary will be primarily performing managerial duties within one year, due to the 
many deficiencies discussed above; our decision does not rest on the proposed size of the petitioning entity. 
889 F.2d at 1472, n.5. 
Overall, the conflicting evidence regarding the proposed nature of the business, the anticipated staffing of the 
U.S. company, and the petitioner's financial ability to support the proposed organizational structure, 
undermines the petitioner's claim that the petitioner will hire sufficient staff within the first year of operations 
to relieve the beneficiary from performing primarily non-managerial and non-executive duties. 
EAC 09 067 50328 
Page 12 
Finally, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because it failed to provide information regarding the size of the U.S. 
investment and financial ability to commence doing business in the United States. 8 C.F.R. 
9 214.2(1)(3)(v)(C)(2). The petitioner has consistently maintained that it requires $230,000 in start-up funds 
for the new U.S. company, but it has not provided evidence that it has obtained the required funding. Counsel 
indicates that the beneficiary intends to use "personal loans" in the amount of $100,000 to $1 10,000, and will 
rely on his savings. The foreign entity had only $9,400 in its bank account based on the most recent 
statements submitted, and the petitioner has not disclosed the balance of the U.S. company's account. Based 
on this evidence, the petitioner has not established that it has obtained or will be able to obtain the funds 
needed to cover its start-up costs, which further undermines the petitioner's claim that the company will 
achieve its financial objectives and proposed staffing levels for the first year of operations. 
Based on the foregoing discussion, the petitioner has failed to establish that the United States operation will 
support an executive or managerial position within one year as required by 8 C.F.R. 8 214.2(1)(3)(v)(C), and 
the petition may not be approved for that reason. 
Beyond the decision of the director, the AAO finds insufficient evidence to establish that the beneficiary has been 
employed by the foreign entity in a primarily managerial or executive capacity, as required by 8 C.F.R. 9 
2 1 4.2(1)(3)(v)(B). 
The petitioner indicated at the time of filing that the beneficiary's duties as proprietorlmanager of the foreign 
entity are as follows: 
[Tlhe beneficiary directs and manages the purchase manager, sales manager and accounts 
department of [the foreign entity's] overall business in India. The Beneficiary supervises three 
managers, all of whom work in a professional capacity. The Beneficiary supervises a 
manager in Sales, a Purchasing Manager, and an executive in Finance (Accountant). 
Specifically, this responsibility entails overseeing the development of marketing initiatives 
both in India and overseas, the advertising of company products, specifically the marketing of 
hardware items, the streamlining of logistical operations, pricing and accounts payable. 
The petitioner submitted an organizational chart for the foreign entity which indicates that the beneficiary 
supervises a purchase manager, sales manager and accountant. The chart indicates that the sales manager 
supervises two salesmen. The chart does not identify any employees by name, other than the beneficiary. 
In response to the director's request for a more detailed description of the beneficiary's position with the 
foreign entity, the petitioner submitted a list of job duties that was essentially the same as that provided for the 
proposed U.S. position, and therefore suffers from the same deficiencies discussed above. Duties such as 
"oversee the functioning and development of ongoing projects," "kept track of achieving the company's 
goals," and "making managerial and business decisions," are not sufficiently detailed to establish that the 
beneficiary's duties were primarily managerial or executive in nature. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting 
EAC 09 067 50328 
Page 13 
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). 
Furthermore, the petitioner indicated that the beneficiary was required to use technical skills such as: 
"inventory ordering, merchandising, overstocking"; balancing cash drawers and maintaining a proper balance 
of coin and paper monies"; "assisting customers: answering phone inquiries, bookkeeping, service, handling 
customers' complaints"; and "securing premises at closing.'' These duties suggest that the beneficiary was 
directly involved in the non-managerial, day-to-day operations of the foreign entity's store. The AAO will not 
conclude that the beneficiary was employed in a qualifying capacity based on his job title and his ownership 
of the foreign company. The fact that the beneficiary manages a business, regardless of its size, does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 
1987). While performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, 
the petitioner still has the burden of establishing that the beneficiary is "primarily" performing managerial or 
executive duties. Section 10 1 (a)(44) of the Act. 
Finally, although the petitioner indicates that the beneficiary supervised a sales manager and a purchase 
manager, the petitioner has not established that either of these employees was employed in a managerial, 
supervisory or professional capacity. 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 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. 2 14.2(l)(ii)(B)(2). Here, the job descriptions submitted for the 
beneficiary's subordinates indicate that they were directly involved in customer service, sales, inventory, and 
other routine store functions. An employee will not be considered to be a supervisor simply because of a job 
title, because he or she is arbitrarily placed on an organizational chart in a position superior to another 
employee, or even because he or she supervises daily work activities and assignments. Rather, the employee 
must be shown to possess some significant degree of control or authority over the employment of 
subordinates. See generally Browne v. Signal Mountain Nursery, L. P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 
2003) (Cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at "16 (E.D. Tex. Jan. 1 I, 2007)). 
As noted above, the definitions of executive and managerial capacity each have two parts. First, the petitioner 
must show that the beneficiary performs the high-level responsibilities that are specified in the definitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified responsibilities and 
does not spend a majority of 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). While it appears that the beneficiary in this matter 
exercised the appropriate level of authority over the foreign entity, the evidence in the record is insufficient to 
establish that his actual duties were primarily managerial or executive in nature. For this additional reason, 
the petition cannot be approved. 
Beyond the decision of the director, because the beneficiary is also the sole ownerlproprietor of the foreign 
entity, the record does not establish that the parent company will continue to do business abroad and 
maintains a qualifying relationship with the U.S. entity pursuant to 8 C.F.R. 9 214.2(1)(l)(ii)(G). In addition, 
the record does not contain evidence that the beneficiary's services are to be used for a temporary period and 
EAC 09 067 50328 
Page 14 
that he will be transferred to an assignment abroad upon the completion of the temporary services in the 
United States pursuant to 8 C.F.R. 5 214.2(1)(3)(vii). For these additional reasons, the appeal must be 
dismissed and the petition denied. 
Finally, the remaining issue in this matter is whether the petitioner established that it has acquired sufficient 
physical premises to house the new office in the United States. See 8 C.F.R. 5 214.2(1)(3)(v)(A). The 
petitioner maintains that it intends to operate a retail hardware store. The petitioner has submitted a lease for 
1,200 square feet of space apparently located on the premises of a gas station and convenience store, and has 
not provided evidence that this space is suitable for the intended business. 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. 200 I), affd. 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(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 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, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.