dismissed L-1A Case: Retail Jewelry

identifying data deleted to 
pre-v'ent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
File: WAC 08 1 18 50 177 
 Office: CALIFORNIA SERVICE CENTER Date: 
 FEB P (P 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 10 l(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any 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. 8 103.5 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
~ol;h.$, Grissom, Acting Chief 
Administrative Appeals Office 
WAC 08 118 50177 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 9 1101(a)(15)(L). The petitioner, an Illinois limited liability company, intends to operate a retail 
jewelry and accessory business. It states that it is an affiliate of y located in La Paz, Bolivia. 
The petitioner seeks to employ the beneficiary as the president of its new office in the United States for a 
three-year period. 
 1 
The director denied the petition on June 5,2008. In denying the petition, the director stated that the issue to be 
addressed was whether the petitioner established that the beneficiary would be employed in the United States 
in a primarily managerial or executive capacity. However, the director then proceeded to discuss the facts of 
the case related to the beneficiary's employment with the foreign entity, and concluded that the beneficiary 
was not employed by the foreign entity in a managerial or executive capacity. Specifically, the director 
discussed the beneficiary's foreign job description and the foreign entity's staffing levels, and determined that 
the beneficiary's duties comprise tasks necessary to produce a product or provide services, rather than 
primarily managerial or executive duties. The director concluded that the petitioner had failed to establish that 
the beneficiary "has been or will be employed in a primarily managerial or executive capacity." 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary 
will be employed in the United States in a primarily managerial capacity. Counsel suggests that the director 
failed to consider that the instant petition is for a new office, and emphasizes that the petitioner only needs to 
establish that the beneficiary's duties will be primarily managerial within one year. Counsel does not address 
the director's findings with respect to the beneficiary's employment capacity with the foreign entity. 
As a preliminary point, the AAO notes that the director's decision in this matter was confusing in that the 
director stated that she intended to address one issue, and then proceeded to discuss a different issue. 
However, it is clear from reading the decision as a whole that the director intended to deny the petition based 
on the petitioner's failure to establish whether the beneficiary was employed by the foreign entity in a 
primarily managerial or executive capacity. Less clear, however, is whether the director intended to deny the 
petition on the separate ground that the petitioner failed to establish that the U.S. petitioner would employ the 
beneficiary in a primarily managerial or executive capacity. When denying a petition, a director has an 
affirmative duty to explain the specific reasons for the denial; this duty includes informing a petitioner why 
the evidence failed to satisfy its burden of proof pursuant to section 291 of the Act, 8 U.S.C. tj 1361. See 8 
C.F.R. 5 103.3(a)(l)(i). 
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 
' Pursuant to the regulation at 8 C.F.R. 5 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States 
to open or be employed in a new office, the petition may be approved for a period not to exceed one year. 
WAC 08 118 50177 
Page 3 
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 AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). The AAO will therefore address 
the separate issues of whether the petitioner established that the beneficiary was employed by the foreign 
entity in a primarily managerial or executive capacity, and whether the beneficiary will be employed by the 
United States entity in a primarily managerial or executive capacity within one year. 
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. 8 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 9 214.2(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 
WAC 08 118 50177 
Page 4 
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. 
The first issue to be addressed is whether the petitioner established that the beneficiary has been employed by the 
foreign entity in a primarily managerial or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
WAC 08 118 50177 
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 nonimmigrant petition on March 19, 2008. On the L Classification Supplement to Form 
1-129, the petitioner stated that the beneficiary has been the sole owner of the foreign entity since 1996, and that 
since April 1999, she has "managed the company's 4 stores, overseeing all operations and managing an average 
of 4-6 employees at any given time." 
In a letter dated March 14, 2008, the petitioner stated that the foreign entity has four retail locations located in La 
Paz, Bolivia, and currently employs between four and six individuals on average. The petitioner noted that the 
beneficiary signed a Power of Attorney allowing her mother to operate the business as of February 2007, as the 
beneficiary has been traveling outside Bolivia. The petitioner noted that the beneficiary maintains complete 
ownership of the business, but did not further discuss her duties while employed by the foreign entity. 
The director issued a request for additional evidence (WE) on March 24, 2008, in which she requested that the 
petitioner submit, inter alia, the following: (1) a more detailed description of the beneficiary's duties abroad, 
including specific duties performed and the percentage of time spent on each duty; (2) the total number of 
employees working for the foreign entity; (3) a detailed organizational chart for the foreign entity; and (4) brief 
position descriptions for all employees under the beneficiary's supervision, along with information regarding the 
education level and annual salaries of the beneficiary's subordinates. 
In a letter dated April 15, 2008, the foreign entity's acting general manager provided 
the following description of the beneficiary's duties while employed by the foreign entity: 
Administration and control of inventory (25% of time) 
Price control (once per month, 10% of time) 
Sales, management of bank accounts, accounts payable, control of costs and income (20% of time) 
In the area of marketing, and sales, she carried out the following work: 
Design corporate image, including coordination of press publications, promotions and related duties 
(15% of time) 
Control and management of sales, training personnel in charge (35% of time) 
Customer Service 
WAC 08 118 50177 
Page 6 
The petitioner did not submit an organizational chart for the foreign entity, but 
 letter did include a 
list of current employees as follows: 
acting General Manager under power of attorney, Assistant General 
Manager when [the beneficiary] is in Bolivia. Her responsibility is to carry out the work of 
income and sales price controls and general coordination. 
: Commercial Manager, in charge of administrative matters, legal, commercial, 
logistics. and sumliers. 
week, and 
': branch manager for "San Miguel" in charge of sales. 
: branch manager for 6th of August Avenue store, in charge of sales. 
manager for store at the El Alto Airport, in charge of sales. 
of workshop and production. 
accounting/accountant. He is paid for the services provided. 
I indicated that the commercial manager works 20 hours er week, the accountant works fc 
the remainder of the employees are full-time workers. stated that "as noted pre 
:s per 
," the 
foreign entity operates three stores. In fact, the petitioner previously indicated that the foreign entity operates four 
stores and provided photographs of four stores. 
The director denied the petition on June 5, 2008, concluding that the petitioner failed to establish that the 
beneficiary was employed by the foreign entity in a primarily managerial or executive capacity. The director 
found the beneficiary's responsibilities for administration, controlling inventory, managing bank accounts, 
accounts payable, and customer service to be non-managerial duties. The director also determined that the 
petitioner did not persuasively demonstrate that the beneficiary supervised a subordinate staff comprised of 
professional, managerial, or supervisory personnel who relieved her from providing the services of the company. 
On appeal, counsel for the petitioner submits a one-page brief in which he discusses the beneficiary's proposed 
employment with the United States entity. Although the director clearly discussed the beneficiary's employment 
capacity with the foreign entity in her decision, counsel does not acknowledge that the petition was denied on this 
basis, nor submit additional evidence or arguments to overcome the director's determination with respect to this 
issue. 
Upon review, the AAO concurs with the director's determination and the appeal will be dismissed. 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. 
As noted by the director, the petitioner has failed to provide a description of the beneficiary's duties sufficient 
to establish that she was employed by the foreign entity in a primarily managerial or executive capacity. In 
response to the director's request for a detailed description of the specific duties performed by the beneficiary, 
the petitioner provided such vague duties as "administration and control of inventory," "price control," 
"sales," "customer service," "accounts payable," and "control of costs and income." Not only are these duties 
WAC 08 118 50177 
Page 7 
excessively generalized, they are operational and administrative tasks that do not fall under traditional 
definitions of managerial or executive capacity. 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 10 1 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Intn 'l., 19 I&N Dec. 593, 
604 (Comm. 1988). The fact that the beneficiary owned and managed the foreign entity is irrelevant absent 
evidence that her duties were primarily managerial or executive in nature as defined at section 101(a)(44) of 
the Act. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff d, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather U.S. 
Citizenship and Immigration Services (USCIS) must determine based on a totality of the record whether the 
description of the beneficiary's duties represents a credible perspective of the beneficiary's role within the 
organizational hierarchy. Accordingly, the director requested both a detailed description of the beneficiary's 
duties, and an organizational chart for the foreign entity that would demonstrate the beneficiary's role within 
the company and the number and types of subordinate employees she supervised. 
Although the petitioner provided a list of employees, the AAO notes that the petitioner initially indicated that 
the foreign entity operated four stores and employed an average of four to six employees in addition to the 
beneficiary, and, in response to the WE, claimed that the foreign entity operates three stores and employs 
seven workers in addition to the beneficiary. The petitioner has provided no explanation for this discrepancy, 
and as such, the AAO cannot determine whether the staffing structure provided in response to the RFE 
represents an accurate depiction of the foreign entity during the beneficiary's employment abroad. 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). 
 Regardless, the information provided does not appear to represent the staffing of 
organization as of February 2007, when the beneficiary assigned control of the foreign entity to 
and the evidence is of little probative value. 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. See 5 101(a)(44)(C) of the Act, 
8 U.S.C. 5 1101(a)(44)(C). However, 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 1313, 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)). 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, 1 53 F. Supp. 2d 7, 1 5 (D.D.C. 200 1). 
WAC 08 118 50177 
Page 8 
It has been noted in the record that there are, at most, seven employees working at the foreign entity's three or 
four retail stores. Based on the very limited position descriptions provided, it appears that the foreign entity's 
"branch managers" sell jewelry in the stores. While the part-time "commercial manager" is claimed to 
perform some ancillary operational functions, the petitioner has not demonstrated how the subordinate staff is 
able to perform the majority of the non-managerial sales, purchasing, customer service, inventory, marketing, 
administrative and clerical functions associated with operating a small chain of retail stores. Furthermore, as 
noted above, the petitioner's description of the beneficiary's duties indicates that she herself performed 
several non-qualifying functions. Collectively, this brings into question how much of the beneficiary's time 
can actually be devoted to managerial or executive duties. As stated in the statute, the beneficiary must be 
primarily performing duties that are managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. 
Finally, the AAO concurs with the director's conclusion that the petitioner failed to establish that the 
beneficiary primarily manages a subordinate staff of managerial, professional or supervisory employees. 
Contrary to the common understanding of the word "manager," the statute plainly states that a "first-line 
supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's 
supervisory duties unless the employees supervised are professional." Section 101(a)(44)(A)(iv) of the Act; 8 
C.F.R. 5 214.2(1)(1)(ii)(B)(2). 
Here, the petitioner has indicated that the beneficiary's subordinates included an assistant general manager, a 
commercial manager, three branch managers, and a "head of workshop and production." Seven of the eight 
claimed employees of the foreign entity have been given managerial job titles. However, the evidence must 
substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement in an 
organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not 
probative and will not establish that an organization is sufficiently complex to support an executive or 
managerial position. 
In the present matter, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers, or professionals. Instead, the record indicates that the beneficiary's 
subordinates perform the actual day-to-day tasks of operating three or four retail stores. Though requested by 
the director, the petitioner did not provide the level of education required to perform the duties of the 
beneficiary's subordinates. Any failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). Thus, the petitioner has not established 
that these employees possess or require a bachelor's degree, such that they could be classified as 
professionals. Nor has the petitioner shown that either of these employees, notwithstanding their job titles, 
actually supervises subordinate staff members or manages a clearly defined department or function of the 
petitioner, such that they could be classified as managers or supervisors. Thus, the petitioner has not shown 
that the beneficiary's subordinate employees are supervisory, professional, or managerial, pursuant to section 
10 1 (a)(44)(A)(ii) of the Act. 
Based on the foregoing discussion, the AAO concurs with the director's uncontested determination that the 
petitioner failed to establish that the beneficiary has been employed by the foreign entity in a primarily 
managerial or executive capacity. Accordingly, the appeal will be dismissed. 
WAC 08 118 50177 
Page 9 
The second issue in this matter is whether the petitioner established that the beneficiary will be employed by 
the U.S. entity in a primarily managerial or executive capacity within one year of approval of the petition. 
In its letter dated March 18, 2008, the petitioner indicated that it had secured physical premises for its jewelry 
store, and had a grand opening event scheduled for April 2008. The petitioner also briefly described its 
immediate marketing plans, planned infrastructure improvements. The petitioner provided the following 
description of the beneficiary's proposed duties as president: 
Within the first year, [the beneficiary] will be responsible for importing and retailing 
primarily silver jewelry and some leather accessories, negotiating the purchase of jewelry 
from wholesalers in Mexico and Bolivia and arranging for importation. She will design and 
develop marketing and sales strategies. 
As President of [the petitioner], [the beneficiary] will be responsible for the overall daily 
operations at the company's Chicago store. She will plan, develop and establish policies and 
objectives of the company. She will establish responsibilities and procedures for attaining the 
company objectives. She will formulate policies, manage daily operations, and plan the use of 
resources in order to assure the success of the retail operation. She will review financial 
statements to determine progress and status in attaining objectives and revise plans in 
accordance with the current market conditions. She will direct and coordinate marketing and 
public relations plans to establish a foothold in the Chicagoland market. As the General 
Manager of the company, in its initial stages, she will be responsible for hiring, firing, 
evaluating and all related human resources determinations. As the individual responsible for 
the overall direction of the company's operations, [the beneficiary] will clearly hold an 
executive position. 
The petitioner did not submit a business plan, hiring plan, or evidence to establish the size of the investment 
in the new office. The petitioner did submit bank records for the period from November 15, 2007 through 
March 7,2008, which shows initial deposits totaling $8,000 and a high balance of $9,865. 
In the RFE issued on March 24, 2008, the director requested, in part, a detailed business plan with specific 
details regarding the type of business to be conducted, and one, three and five-year financial projections, as 
well as an original letter from the foreign entity describing: the proposed number of employees and types of 
positions they will hold; the amount of the U.S. investment; and an explanation as to how the proposed 
business will, within one year, support a managerial or executive position. The director also requested an 
organizational chart for the U.S. company, and a more detailed description of the beneficiary's proposed 
duties in the United States, including the percentage of time she will devote to each duty. 
In the aforementioned letter fiomdated April 15, 2008, the petitioner stated that the beneficiary 
and a partner established the company with a $40,000 investment used for merchandise, furniture, equipment, 
legal costs and rent for the new store. stated that "[ilnitially for the first year, the company will 
contract one hll time employee who will carry out the work of administration, mana ement and daily 
operations, as well as carrying out the strategic plan for the growth of sales." stated that the 
WAC 08 118 50177 
Page 10 
company would later expand to a new store and hire two additional employees, but the letter did not include a 
timeline for the expansion. Finally, letter included a chart with financial projections for the first 
five years of operations. During the first year of operations the petitioner anticipates an investment of 
$50,000, sales of $96,000, profit of $46,000, expenditures of $30,000 and net profit of $16,000. The AAO 
notes that anticipated sales, profit and expenditures double between the second and third years, and therefore 
it appears that the company estimates that it will expand to two stores after the second year. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in a primarily managerial or executive capacity in the United States. As noted above, the director's 
decision did not include a discussion of the petitioner's evidence or any analysis of this issue. 
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a managerial capacity 
and emphasizes that the petitioner explained the beneficiary's responsibilities for planning, developing and 
establishing the company's objectives. Counsel emphasizes that since the petitioner is a new office, it must 
demonstrate that the company will sustain a managerial transferee within one year. Counsel contends that the 
petitioner submitted all required financial documentation, and asserts that USCIS should permit the 
beneficiary to engage initially in the tasks necessary to provide the services of the company in this new office 
situation. 
Finally, counsel states: 
The petitioner in this matter had already demonstrated that the beneficiary's duties after the 
expansion of its business will be primarily managerial and not the day-to-day duties. 
Specifically, these duties will include the following: implementation of the strategic goals and 
objectives of the company and giving direction and leadership toward the achievement of the 
company's mission, sales strategy, and its annual goals and objectives. 
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. ij 
2 14.2(1)(3)(v)(B). 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
WAC 08 118 50177 
Page 11 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target marketlprospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefore. Most importantly, the business plan must be credible. 
Id. 
While the petitioner has submitted evidence to show that it has obtained sufficient premises and commenced 
operations in the United States, the petitioner has not adequately describe the beneficiary's proposed duties, 
or the proposed organizational structure of the U.S. company after the first year of operations. Accordingly, 
the petitioner has not established that the beneficiary will be employed in a primarily managerial or executive 
capacity, or that the U.S. company would support such a position, within one year. 
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. 5 214.2(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. 
In its initial letter, the petitioner noted that "within the first year" the beneficiary would be responsible for 
importing and retailing jewelry, negotiating the purchase of jewelry, and arranging for importation ofjewelry 
from Mexico and Bolivia, all duties that must be considered non-managerial tasks. The remainder of the 
initial position description described general managerial functions and failed to demonstrate what the 
beneficiary would do on a day-to-day basis after the first year of operations. Rather, the petitioner merely 
paraphrased portions of the statutory definitions of managerial and executive capacity, indicating that the 
beneficiary will "establish policies and procedures for attaining company objectives," "formulate policies," 
"manage operations," "direct and coordinate marketing and public relations plans," and be responsible for 
hiring and firing decisions. Conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioners burden 
of proof. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 4 1 (2d. 
Cir. 1990); Avyr Associates, Znc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
WAC 08 118 50177 
Page 12 
While the AAO acknowledges the petitioner's voluminous response to the director's request for additional 
evidence, the petitioner offered no additional information to elaborate upon the beneficiary's proposed duties 
in the United States. As noted above, the director specifically requested a detailed description of the 
beneficiary's duties in the United States and the percentage of time she would devote to each duty. Any 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). 
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, the brief 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, within one year, relieved of 
the need to perform the non-qualifying tasks inherent to her duties and to the operation of the business in 
general. The business plan briefly outlined in the foreign entity's letter dated April 15, 2008 indicates that the 
petitioner intends to hire a single employee to work in its store and to "carry out the work of administration, 
management and daily operations." The AAO is not persuaded that a single employee will in fact perform all 
or most non-qualifying duties associated with the operation of the petitioner's business, which would include 
the purchasing, sales, and importing duties attributed to the beneficiary, as well as other operational and 
administrative functions. The petitioner did not clearly articulate what duties would be performed by the 
proposed employee or even provide a job title. In addition, the petitioner mentioned that the beneficiary has a 
"partner Jimmy Salame, where he participates legally owning 49% of the company." The petitioner did not 
further indicate to what extent will participate in the business or what functions he would 
perform. The director specifically requested that the petitioner clearly outline the petitioner's proposed 
organizational structure, the types of employees to be hired, and the duties to be performed by the 
beneficiary's subordinates. The petitioner did not submit an adequate response to this request. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter ofSofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treaswe Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, the limited financial information provided is insufficient to establish that the petitioner actually 
intends to hire the proposed full-time worker. As noted above, the petitioner anticipates annual expenditures 
of $30,000 during each of its first two years in business. The petitioner's rent alone is $24,000 annually, 
which raises questions as to whether the company's financial projections would allow for the hiring of a full- 
time employee. 
As the petitioner fails to explain what tasks the beneficiary and her subordinate staff will perform after the 
petitioner's first year in operation or to explain how much time the beneficiary will devote to performing non- 
qualifying tasks, it cannot be confirmed that she will be "primarily" employed as a manager or executive 
within one year. The evidence of record does not produce a realistic expectation that the U.S. company will 
WAC 08 118 50177 
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grow to the point where it would require the beneficiary's services in a managerial or executive capacity 
within the requisite timeframe. Accordingly, the appeal will be dismissed. 
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 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.