dismissed L-1A Case: Retail Sales

U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
SRC 04 01 6 52938 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. § 1 101(a)(15)(L) 
IN 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. 
Jdd fZ2 
o rt P. Wi mann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. A 
subsequent motion to reopen was denied, and 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 extend the beneficiary's employment as its 
president as an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a corporation 
organized in the State of Texas, claims to be engaged in retail sales and operates a convenience store 
under the trade name Hornet's Nest. The petitioner claims that it is the affiliate of National Medical & 
General Stores, located in Bombay, India. The beneficiary was granted one year in L-1A classification in 
order to open a new office and the petitioner seeks to extend the beneficiary's stay for three additional 
years. 
On June 9, 2004, the director denied the petition, concluding that the petitioner did not establish that (1) 
the beneficiary will be employed in the United States in a primarily managerial or executive capacity; or 
(2) the petitioner had been doing business as required by the regulations for the previous year. 
Counsel for the petitioner simultaneously filed a motion to reopen with the service center and an appeal 
with the AAO. On November 4, 2004, the director denied the motion. On appeal, counsel contends that 
the director's decision was erroneous, and submits a brief and additional evidence in support of the 
petitioner's claim that the beneficiary is primarily a manager and that the U.S. entity was doing business 
as required. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed 
the beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, 
for one continuous year within three years preceding the beneficiary's application for admission into the 
United States. 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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
1 
On December 9,2004, the director issued a notice of intent to revoke the initial new office petition upon 
which this extension request is based (Receipt No. SRC-02-247-5 1128). Specifically, the director found 
that the foreign entity affiliated with the petitioner was no longer doing business. The petitioner was 
afforded thirty days to rebut the director's findings and submit evidence in support of the petition's 
validity. The petitioner failed to respond, and the petition approval was revoked on March 30, 2005 
pursuant to 8 C.F.R. 5 214.2(1)(9)(iii). 
Page 3 
(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 hidher 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. tj 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening 
of a new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and 
the duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 4 1 10 1 (a)(44)(A), defines the term "managerial capacity" as 
an assignment within an organization in which the employee primarily: 
Page 4 
(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 110l(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of 
the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The request for extension, filed on Form 1-129 on October 21, 2003, indicated that the petitioner currently 
employed 5 persons. In a document entitled "Attachment to Form I-129L," the petitioner described the 
beneficiary's duties as follows: 
[The beneficiary] will continue to be employed as the President of the Petitioner, and will be 
responsible for performing the following duties for the Petitioner; such duties to include: 
hiring and firing managers; supervising subordinate employees; reviewing an[d] analyzing 
sales data; establishing and implementing policies to manage and achieve marketing goals; 
review financial reports; review budgets and expense reports prepared by subordinate 
employees; managing the company; and overseeing marketing campaign developed by 
subordinate managers. 
Page 5 
On January 21, 2004, the director requested additional evidence. Specifically, the director requested 
additional evidence to establish that the beneficiary will be employed in a managerial or executive 
capacity, including but not limited to a more detailed description of the beneficiary's duties and the 
percentage of time he spent on such duties; the number of subordinate employees he supervised as well as 
information regarding their positions; and an explanation regarding who provides the product sales and 
services for the company. The director also requested copies of the petitioner's Employer's Quarterly 
Tax Returns for the State of Texas for the fourth quarter of 2002 through the third quarter of 2003. 
In a letter dated March 10, 2004, counsel for the petitioner submitted the following updated overview of 
the beneficiary's duties: 
Ten percent (10%) of his time hiring and firing managers, and supervising subordinate 
employees; Fifteen Percent (15%) overseeing preparation of sales and inventory reports; 
Fifteen Percent (15%) reviewing an[d] analyzing sales data; Twenty Percent (20%) 
establishing and implementing policies to manage and achieve marketing goals; Fifteen 
Percent (15%) reviewing financial reports, and reviewing budgets and expense reports 
prepared by subordinate employees; Twenty Five (25%) managing the company and 
overseeing marketing campaign developed by subordinate managers. 
The beneficiary is responsible for seeking additional business locations. In the performance 
of his duties, the Beneficiary receives minimum supervision from the Board of Directors, and 
the Beneficiary exercises wide discretion and latitude in the performance of his duties. The 
Beneficiary holds the highest authority within the organization and directly supervises a Store 
Operations Manager. 
The AAO notes other than the addition of the percentages of time the beneficiary devotes to each stated 
duty, the description is virtually identical to the initial description submitted. 
The petitioner also submitted a brief overview of the petitioner's other staff members who were listed as 
follows: store Operations Mana er, who oversaw , Assistant 
ManagerICashier, who in turn oversaw 
 and, Cashiers. 
The petitioner also submitted copies of his Employer's Quarterly Reports for the State of Texas for the 
quarters ending September 30, 2003 and December 31, 2003, demonstrating that all of the above-named 
employees were working for the petitioner during these periods. The return for the fourth quarter listed a 
fourth employee, L, who was not previously identified by the petitioner. In the 
month of October 2003, the petitioner had five employees, including the beneficiary. 
On June 9, 2004, the director denied the petition, finding that the petitioner failed to establish that the 
beneficiary would be employed in a qualifying capacity. Specifically, the director found that the 
beneficiary was not supervising professional employees, and appears to be engaged in many of the day- 
to-day tasks of the business despite his title as president. On appeal, counsel contends that the beneficiary 
operated in a qualifying capacity by overseeing four persons, and further qualified as a function manager 
since he was responsible for reviewing and seeking additional retail locations. 
Page 6 
Upon review, the MO concurs with the director's findings. 
Despite the petitioner's contentions that the beneficiary functioned in a qualifying position, the 
information submitted with regard to the beneficiary's position, coupled with the less-than-descript 
response to the request for additional evidence regarding the beneficiary's subordinates, suggests that the 
beneficiary performs most of the day-to-day duties required to operate the company, and thus could he 
not be considered primarily a manager or executive. The AAO will begin by examining the duties of the 
beneficiary. 
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 definitions of executive and 
managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high 
level responsibilities that are specified in the definitions. Second, the petitioner must prove that the 
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her 
time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 
(9th Cir. July 30, 1991). 
In this matter, the petitioner provided a generic description of the beneficiary's duties with the initial 
petition. In the request for evidence, the director asked the petitioner to submit more detailed evidence 
outlining the duties delegated to the beneficiary and, in response the petitioner submitted a description of 
duties that was virtually identical to the one submitted in the initial letter of support, which the director 
had previously deemed insufficient. The main difference was that the petitioner broke down the list of 
duties into percentages to comply with the director's request. 
The petitioner failed to submit a specific overview of the beneficiary's duties despite the director's 
request. 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). Consequently, the description of duties on record, 
although it does provide a percentage breakdown, fails to specifically state the exact nature of the 
beneficiary's duties. More importantly, the petitioner fails to articulate the exact nature of the 
beneficiary's position with regard to the other staff members and the manner in which they interact. For 
example, the petitioner claims that the beneficiary is the president and the highest authority in the 
company, yet the description of duties is essentially a laundry list of non-specific tasks such as 
"supervising subordinate employees," "review[ing] financial reports," and "managing the company." 
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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). In this matter, the recitation of the beneficiary's duties includes an abundance of tasks with no 
specific outline to clarify to what extent the beneficiary is engaged in each task. For example, "managing 
the company" is too vague to allow the MO to determine the exact nature of the beneficiary's role in the 
company. The director afforded the petitioner an opportunity to supplement the record with a more 
specific description of the beneficiary's duties yet the petitioner failed andtor refused to do so. As a 
result, the AAO cannot determine the exact nature of the beneficiary's duties in the context of the 
petitioner's stated business or determine whether his duties are primarily managerial or executive in 
nature. Moreover, considering that the petitioner's business involves the operation of a gas station and 
convenience store, the AAO is left to question the extent of managerial duties actual required for such an 
operation. 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 answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afyd, 905 F.2d 41 (2d. Cir. 1990). 
Because a number of the tasks listed in the recitation of duties include tasks traditionally not considered to 
be primarily managerial or executive, it is impossible to determine that the beneficiary functions solely as 
manager or executive of the company. For example, the petitioner claims that "the beneficiary is 
responsible for seeking additional business locations." Generally, a task such as this would appear to be 
marketing-related and thus non-qualifying; however, the petitioner provides no detail regard the extent of 
the beneficiary's involvement in these tasks. Instead, the petitioner merely concludes that the beneficiary 
is "the highest authority within the organization" and therefore is primarily a manger or executive. This 
claim, however, will not suffice. Conclusory assertions regarding the beneficiary's employment capacity 
are not sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108; Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Crafl of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Merely claiming that the beneficiary is performing in a qualifying capacity is insufficient 
for purposes of this analysis. 
Another claim of the petitioner is that the beneficiary is responsible for supervising a subordinate staff of 
four persons. Although the beneficiary is not required to supervise personnel, if it is claimed that his 
duties involve supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See 5 IOl(a)(44)(A)(ii) of the Act. 
Though requested by the director, the petitioner did not provide the level of education required to perform 
the duties of its cashiers and operations manager (although the petitioner did indicate that two of the 
cashiers had high school educations). 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). In evaluating whether 
the beneficiary manages professional employees, the AAO must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Section 
101(a)(32) of the Act, 8 U.S.C. 5 1 101(a)(32), states that "[tlhe term profession shall include but not be 
limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, 
not merely skill, of an advanced type in a given field gained by a prolonged course of specialized 
instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into the 
particular field of endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Cornm. 1988); Matter of Ling, 13 I&N 
Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). It is generally presumed that a 
cashier at a convenience store would not require a baccalaureate degree as a prerequisite for employment. 
The position of store operations manager, however, if truly a professional position, may in fact require 
additional education; however, the petitioner failed to address this request for information by the director 
so the requirements for this position cannot be determined based on the current record. 
Thus, the petitioner has not established that these employees possess or require a baccalaureate degree, 
such that they could be classified as professionals. While the petitioner does contend that the store 
operations manager supervises subordinate staff members (i.e., the cashiers), the nature of the petitioner's 
business makes it difficult to determine the supervisory nature of the position. Since a convenience 
storelgas station normally operates seven days per week and often remains open eighteen to twenty-four 
hours per day, the petitioner has failed to establish that the store operations manager and the beneficiary 
are able to solely supervise employees and never engage in non-qualifying tasks. Thus, the petitioner has 
not shown that the beneficiary's subordinate employees are supervisory, professional, or managerial, as 
required by section 101 (a)(44)(A)(ii) of the Act. 
The petitioner also contends that the beneficiary alternatively is a function manager. The term "function 
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate 
staff but instead is primarily responsible for managing an "essential function" within the organization. 
See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 4 1 101(a)(44)(A)(ii). The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must furnish a written job offer that clearly describes the duties to be performed, 
i.e. identify the function with specificity, articulate the essential nature of the function, and establish the 
proportion of the beneficiary's daily duties attributed to managing the essential function. 8 C.F.R. 9 
214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate 
that the beneficiary manages the function rather than performs the duties related to the function. An 
employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 
(Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N 
Dec. 593, 604 (Cornm. 1988)). In this matter, the beneficiary is claimed to supervise staff, which casts 
doubt upon the validity of the petitioner's claim that he is employed as a function manager. 
Simultaneously, the petitioner has not provided evidence that the beneficiary manages an essential 
function, as it has neither identified the alleged function nor clearly described the beneficiary's duties 
associated with managing a function. 
On appeal, counsel relies on a number of precedent decisions in support of the petitioner's eligibility. 
First, the MO notes that counsel relies on 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 MO 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-4, 20 I&N Dec. 
715 (BIA 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 fiom performing operational and/or administrative 
tasks. Like the court in National Hand Tool Corp., we emphasize that our holding is based on the 
conclusion that the beneficiary is not primarily performing managerial duties; our decision does not rest 
on the size of the petitioning entity. 889 F.2d at 1472, n.5. 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met 
the requirements of serving in a managerial and executive capacity for L-1 classification even though he 
was the sole employee. Counsel has furnished no evidence to establish that the facts of the instant 
petition are analogous to those in the unpublished decision. While 8 C.F.R. tj 103.3(c) provides that 
AAO precedent decisions are binding on all CIS employees in the administration of the Act, unpublished 
decisions are not similarly binding. 
Counsel also cites Gasboy Texas, Inc. v. Upchurch, 2004 WL 396257 (N.D. Tex.), in which the United 
States District Court found that an MO decision was not due deference because the administrative record 
was "shoddy" and haphazardly assembled and because the AAO decision did not address a letter 
submitted by the petitioner. Without discussing the applicable statute and regulations, the court 
summarily concluded that the "president and general manager" of a gas station/convenience store 
qualified as a manager and executive under "8 C.F.R. $ 214.2(l)(ii) [sic]." However, the Gasboy decision 
does not stand for the proposition that all gas station managers qualify as a manager or executive under 
the Act; rather, the court's decision was based on an analysis of a specific deficiency in the administrative 
record. Other than noting that the petitioner in the cited case operated a business similar to the business 
operated by the petitioner in the instant matter, counsel did not establish that the facts of the two cases are 
analogous. Additionally, in contrast to the broad precedential authority of the case law of a United States 
circuit court and as stated above, 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. 
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. 
Counsel's reference to the Gasboy decision is not persuasive. 
The fact that the beneficiary oversees cashiers at a convenience store does not establish that the 
beneficiary will not be required to engage in day-to-day tasks necessary to operate the business. The 
petitioner has not set forth the hours of operation of the store or the hours during which the employees 
work. According to the quarterly wage reports, however, none of the other employees earn more than 
$3250 in a three-month period, thereby suggesting that some are part-time employees and that the 
beneficiary would fill in for them when they are not on the schedule. Absent additional evidence, the 
AAO is unable to conclude with certainty that the beneficiary refrains from engaging in non-qualifying 
tasks. 
A visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Moreover, the regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States operation only 
one year within the date of approval of the petition to support an executive or managerial position. There 
is no provision in CIS regulations that allows for an extension of this one-year period. If the business is 
not sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. In 
the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will 
be employed in a primarily managerial or executive capacity. For this reason, the petition may not be 
approved. 
The second issue in ths matter is whether the petitioner has been doing business as required by the 
regulations for the previous year. The regulation at 8 C.F.R. §214.2(1)(l)(ii)(H) defines the term "doing 
business" as "the regular, systematic, and continuous provision of goods andlor services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying organization in the 
United States and abroad." 
In this matter, the petitioner claims that it is engaged in retail sales; namely, the operation of a convenience 
store and gas station. The director denied the petition, finding that the petitioner had failed to satisfy the 
regulatory requirements for doing business. 
With the initial petition, insufficient evidence of the petitioner's business practices was submitted. 
Consequently, in the request for evidence issued on January 21, 2004, the director requested 
documentation establishing that the petitioner had been doing business during the previous year as 
required by the regulations. In the response dated March 10, 2004, counsel states in bold print that "the 
petitioner started conducting business on July 1,2003." 
Based on this admission and upon review of the evidence submitted, the AAO concludes that the 
petitioner failed to demonstrate that it had been doing business during the previous year. The record 
indicates that the beneficiary was granted a one-year period of stay from October 23, 2002 to October 23, 
2003 to open a new office. The record further indicates that the petitioner would engage in retail sales; 
namely, operating a convenience store. However, there is no indication of any business activities 
whatsoever until July 2003, or nine months after the initial petition's approval. In addition, there is 
minimal documentation or information regarding the activities of the beneficiary and the petitioner during 
the time period prior to July 2003. 
Page 11 
Based on this limited information, it is clear that the petitioner was not doing business as required by 8 
C.F.R. 5 214.2(1)(14)(ii)(B). The record is devoid of an explanation as to what the petitioner did between 
October 2002 and July 2003, and further lacks any explanation or documentation regarding other 
activities engaged in by the petitioner to promote its business during this period. The fact that the 
petitioner did not commence operations until July 2003, three months prior to the visa expiration, does 
not excuse the petitioner from meeting the regulatory requirements. 
Moreover, the record reflects that the U.S. entity did not secure a commercial lease until July 1, 2003, 
nearly nine months after the approval of the original new office petition. The regulation at 8 C.F.R. $ 
214.2(1)(3)(v)(A) requires a petitioner that seeks to open a new office to submit evidence that it has 
acquired sufficient physical premises to commence doing business. In the present matter, either the 
petitioner did not comply with this requirement, misrepresented that they had complied, or the director 
committed gross error in approving the petition without evidence of the petitioner's physical premises. 
The regulation at 8 C.F.R. 4 214.2(1)(3)(v)(C) allows the intended United States operation one year within 
the date of approval of the petition to establish the new office. Furthermore, at the time the petitioner 
seeks an extension of a new office petition, the regulations at 8 C.F.R. $ 214.2(1)(14)(ii)(B) require the 
petitioner to demonstrate that it has been doing business for the previous year. In the present matter, the 
evidence submitted at the time of filing confirmed that the petitioner had not been conducting business as 
required. For this additional reason, the petition may not be approved. 
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.