dismissed L-1A Case: Solar Energy

U.S. Department of Homeland Security 
20 Mass. Ave , N.W , Rm 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: SRC 05 054 5 1613 Office: TEXAS SERVICE CENTER Date: 
 DEC 2-7 2006 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1101(a)(15)(L) 
ON BEHALF OF THE PETITIONER: 
SELF-REPRESENTED 
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. 
-6 bert P. Wiemann, Chief 
!@mmstrative Appeals Office 
~SRC 05 054 51613 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (MO) on appeal. The MO will d*smiss the appeal. 
, 
,The petitioner filed this nonimmigrant petition seeking to extend the employment of its presidentldlrector 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. tj 1101(a)(15)(L). The petitioner, a Florida corporation, is engaged in the 
sale of solar pool heaters and control systems. The beneficlary was initially granted a one-year penod in L- 
1A classification in order to open a new office in the United States, and the petitioner now seeks to extend the 
beneficiary's stay for two additional years. 
;The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
;The petitioner subsequently filed 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 disputes the director's decision and 
asserts that the director mistakenly assumed that since the beneficiary was the only employee as of the date of 
(filing, he was not relieved from performing the non-managerial functions of the business. The petitioner 
contends that "specific operating procedures and processes had been put in place from the outset that 
alleviated the beneficiary from carrying out non-managerial duties." The petitioner further emphasizes that 
the regulation at 8 C.F.R. tj 214.2(1)(14)(ii)(D) "does not stipulate the need for employees to be in place." The 
petitioner submits a brief and additional evidence 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. tj 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. 
SRC05 05451613 
Page 3 
(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. 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 I- 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 managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed by the United States entity in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 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 
SRC 05 054 51613 
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(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. 
 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonimmigrant visa petition was filed on December 20, 2004. On the Form 1-129 petition, the petitioner 
indicated that the beneficiary would continue to serve as presidentldirector with responsibility to "direct, 
manage [and] co-ordinate business." 
, 
,h a letter dated December 16, 2004, the petitioner further described the beneficiary's duties as follows: 
. 
 [The beneficiary] has been responsible for marketing, managing and directing the company 'in 
order to provide services and goods to customers, research business opportunities 
domestically and internationally and assist in any negotiation and management to bring such 
opportunities to fruition. In the short period of time since taking on this role with [the 
petitioner], [the beneficiary] has proved invaluable in establishing [the petitioner] within the 
market place. 
Despite a difficult year for businesses through out [sic] Florida from the aftermath of four 
hurricanes and particularly at a peak time for the solar industry, [the beneficiary] has 
established a principal office in Winter Park, Florida, secured two exclusive marketing and 
servicing territories within Central Florida. . . for a Florida based manufacturing company 
. He has established a "Trade Centre" in Central Florida the first of its kind 
eit delayed due to the impact of humcanes on the industry. [The petitioner] 
with orders on its books through December & January, is now poised to make further inroads 
into the market place under the direction of [the beneficiary] and with the creation of 
additional job requirements for two field sales personnel, a warehouse assistantldriver and 
office assistant will bring the number of direct employees to five within a very short period of 
time in addition to the employment of sub-contractors. 
SRC 05 054 51613 
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In addition to this, through local and international maiketing campaigns initiated by [the 
beneficiary], [the petitioner] is having discussions locally with builders to supply both 
equipment and services and at an international level[.] [The petitioner] are [sic] in the final 
stages of setting an agreement with a Hungarian alternative energy company to market and 
import the product range from [the petitioner]. 
To enhance [the petitioner's] opportunities and further develop within the engineering field, 
[the beneficiary] has made a request to sit for the State Certified Electrical License for which 
he is well qualified and which is under full consideration at this time by the State Electical 
Licensing Board. 
[The beneficiary] will continue to be responsible for the direction and development of the 
corporation, marketing of the company and development of an in house product range, further 
targeting the export market to take the company to its full potential. 
The petitioner stated in its December 16, 2004 letter that the petitioner "markets designs, and develops solar 
$erived energy systems to meet customer and client requirements and are exclusive distributors of solar pool 
heaters and control systems for a Florida based manufacturer." The petitioner further stated that the company 
"provides equipment and services to a diverse range of clients and customers" and provides "technical support 
to clients and customers by offering on-site troubleshooting, servicing and repairs." 
The petitioner also provided a copy of the beneficiary's resume, which provides the following description of 
4 
his position as "president and technical director" of the U.S. company: 
Responsibilities 
Marketing, managing, directing & co-ordinating company operations and personnel in 
order to maintain and provide goods and services to customers. 
Responsible for overall financial management and profitability. 
Activities 
Establish principal office for Sales, marketing and'promotion of business activities and 
services. 
Expand market and open 'Trade Center' in central Florida as a sales and distribution 
centerfor local and internet sales. 
Management & co-ordination of specific projects. 
Communicate effectively with clients & customers at all levels. . 
. Appraise applications, determine & quote contracts, prices, etc. 
 . . 
Quantify & evaluate subcontractor capabilities and negotiate with suppliers. 
Provide technical support to clients & customers. 
Plan & schedule sales orders and service work load. 
Direct sales of control equipment and products. 
SRC0505451613 . 
Page 6 
Training of personnel, producing technical documentation & operation manuals ensuring 
successful integration of specific proposals & applications. 
The director issued a request for additional evidence on February 19, 2005. In part, the director instructed the 
petitioner to submit evidence that the U.S,. company had employees as of the date of filing the petition, 
including copies of state quarterly payroll taxes filed for the previous four quarters. The director noted that 
"the duties and titles for these employees must demonstrate that these employees relieve [the beneficiary] 
from non-managerial duties." 
In a response dated April 29, 2005, the petitioner confirmed that the beneficiary "was the only person directly 
involved" ,with the company when'the petition was filed.  he petitioner again emphasized the 
impact of the Florida hurricane season on the company's growth and noted that it had arranged the drop 
shipment of sales orders direct from the'manufacturer to its customers until the company was able to open its 
tradeldistribution center in December 2004. The petitioner stated that since the manufacturer was handling the 
storage, packing and shipping of the products, the beneficiary was able to "concentrate on establishing [the 
-petitioner] within the market place." 
The petitioner further stated that sales of its products are marketed locally and through the company's web 
site, on-line store and an eBay store. The petitioner indicated that its current staff as of April 2005 included 
the beneficiary and a general administrative assistant who is responsible for order processing and shipment 
scheduling. The petitioner also noted that it has immediate vacancies for a bookkeeperlfinancial officer who 
will be responsible for invoicing and handling of accounts, and for a warehouse technician who will undertake 
general warehouse duties and be responsible for packaging, receiving and dispatch of products. Finally, the 
petitioner stated that it currently utilizes the services of a certified public accountant who "is handling the 
company accounts, payroll, etc." 
The director denied the petition on August 29, 2005 concluding that the petitioner had not established that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
The director observed that the beneficiary was the sole employee of the company as of the date of filing and 
determined that the petitioner had failed to demonstrate that the beneficiary is relieved of performing non- 
managerial duties. Thus, the director concluded that the U.S. company had not grown to the point where it 
could employ the beneficiary in a primarily managerial or executive capacity. 
On appeal, the petitioner asserts that the director misapplied the regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(D), 
noting that the regulation "does not stipulate the need for employees to be in place" as a requirement for an 
extension of a petition that involved a new office. The petitioner asserts that it provided the required 
statement regarding the staffing of the new operation including the number of employees and types of 
positions held. The petitioner argues that it has established that the business is able to support the beneficiary 
in a managerial or executive position and asserts that the fact that there are no employees "should not have 
been a consideration for denying the petition." 
The petitioner further asserts that the director mistakenly assumed that the beneficiary was not relieved from 
performing non-managerial duties at the time the petition was filed, and must therefore be responsible for 
SRC 05 054 51613 
Page 7 
performing a comblnatlon of executive, managerial and non-managerial duties. The petitioner contends that 
at the time of filing, the beneficiary was primarily functioning in an executive capacity, and that "specific 
operating procedures and processes had been put in place from the outset that alleviated the beneficiary from 
carrying out non-managerial duties until such times as the business warranted the employment of others to 
carryout [sic] these duties in house." 
Specifically, the petitioner asserts that it had arranged for products to be shipped to its customers directly 
from the. product manufacturer, thus relieving the beneficiary from performing packing, shipping and 
inventory processing duties. The.petitionei- states that it has operated an on-line store to obtain and process 
sales, and that the beneficiary was thus relieved from carrying out non-managerial duties with respect to 
performing sales, producing invoices, accepting payments and depositing funds.  ina all^, the petitioner states 
that the beneficiary's salary was paid by the company's United Kingdom affiliate, thus relieving the 
beneficiary from performing payroll-related duties. The petitioner provides a summary of actions carried out 
by the beneficiary between April and December 2004, and asserts that the utilization of internet sales and 
direct shipping from the manufacturer relieved the beneficiary from undertaking non-managerial work and 
allowed him "to primarily concentrate on developing and further establishing the organization." 
In support of the a 
 eal the etitioner submits, among other documents, a September 12, 2005 letter from a 
vice president of iwh who confirms that his company shipped its products directly to the 
petitioner's customers between the months of May 2004 and November 2004. According to the letter, all 
product shipments have been sent directly to the petitioner's Minneola, Florida warehouse since November 
2004. 
Upon review, the petitioner's assertions are not persuasive. The petitioner has not established that the 
beneficiary will be employed in a primarily managerlal or executive capacity under the extended petition. 
When examining the executive or managerial capaclty of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 8 214.2(1)(3)(ii). The petitloner'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. 
The definitions of executive and managerial capacity have two 
 First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show 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). The test is basic to.ensure that a person not only has the requisite 
I authority, but that a majority of his or her duties are related to operational or policy management, not to the 
supervision of lower-level employees, performance of the duties of another type of non-managerial or non- 
executive position, or other involvement in the operational activities of the company. 
Here, the petitioner's description of the beneficiary's job duties fails to establish that he would perform 
primarily managerial or executive duties under the extended petition. For example; the petitioner stated that 
the beneficiary has been responsjble for "marketing, managing and directing the company in order to provide 
services and goods to customers," and-researching business opportunities. The petitioner further stated that 
SRC 05 054 51613 
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ihe beneficiary would continue to be responsible- for the "direction and development" of the company, 
marketing the company, and developing an in-house product range. Based on this vague description, the 
'airector was unable to determine what specific role the beneficiary had in business development, market 
research, promotion, product development and provision of goods and services and could not reasonably 
aetermine whether he was directly involved in performing non-qualifying duties associated with these 
functions, or whether he supervised the perforinance of these functions through .subordinate employees. In 
addition; the initial description did not identify the number. or type of employees supervised by the 
beneficiary, nor did it indicate what day-to-day tasks the beneficiary performs to "manage and direct" the 
company's daily operations. 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 
:eiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 
hl (22. Cir. 1990). 
blthough the petitioner also submitted i copy of the beneficiary's resume,.the job description included therein 
does not assist in establishing that the beneficiary performs primarily managerial or executive duties. For 
kxample, the resume indicates that the beneficiary is responsible for "management & co-ordination of specific 
projects," but does not clarify the types of projects managed or the actual managerial duties involved. 
Furthermore, according to the beneficiary's resume, he is responsible for "training of personnel," 
"quantify[ing] and evaluat[ing] subcontractor capabilities," planning and scheduling sales orders and service 
workload, and directing "sales of control equipment and products. However, as of the date of filing the 
petitioner did not claim to have any personnel or subcontractors to sell or service its products, and the 
probative value of this job description is limited. To the extent that the petitioning company is directly selling 
and servicing products, the petitioner has' not established that anyone other than the beneficiary was 
performing these duties. In addition, the beneficiary's stated responsibilities for providing technical support to 
clients, negotiating with suppliers, determining and quoting prices, and communicating with clients and 
customers have not been shown to be managerial in nature. An employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
:'primarilyn perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
Int'l, 19 I&N Dec. 593, 604 (Comm. 1988). 
Wether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proVing that his duties are "primarily" managerial or ,executive. See sections 101(a)(44)(A) and 
(B) of the Act'. Here, the petitioner fails.to document what proportion.of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on them. This failure of documentation is important because many of the beneficiary's 
hies, as discussed above, do not fall directly under traditional managerial duties as defined in the statute. 
For this reason, the AAO cannot determink whether the beneficiary is primarily performing the duties of a 
manager or executive. See e.g., IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
The petitioner's description of the beneficiary's duties cannot be read or considered in the absh.act, rather the 
MO must determine based on a totality of the record whether the -description of the beneficiary's duties 
represents a credible depiction of the beneficiary's role within the organizational hierarchy. As observed by 
I 
SRC 05 054 51613 
Page 9 
the director, the record does not demonstrate that the petitioner has a sufficient number of employees who 
could perform the non-managerial duties associated with operating the petitioner's business on a day-to-day 
basis. 
I 
The petitioner correctly notes on appeal that the regulations do not explicitly require the U.S. company to 
establish that it has hired employees during the first year of operations. The MO acknowledges that in 
certain situations a beneficiary who is the sole employee of a company may qualify as a manager or 
executive. It is the petitioner's obligation to establish however, through independent documentary evidence 
 hat someone other than the beneficiary performs the day-to-daynon-managerial and non-executive tasks of 
the petitioning entity. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 9 1101(a)(44)(~), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
)levels of the petitioner. See 8 C.F.R. §'214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. fj 214.2(1)(3)(v)(C) 
,allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year 
period. If the business does not have sufficient staffing after one year to relieve the beneficiary from 
primarily performing operational arid administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
At the time of filing, the petitioner was a one-year-old company that was operating primarily as a distributor 
bf solar heating equipment for swimming pools. Specifically, it had exclusive authorization to market, sell 
and service swimming pool heating equipment in two Florida counties. As of December 2004, the 
beneficiary was the petitioner's sole employee. The petitioner reasonably requires employees to market and 
sell the products, respond to customer inquiries, provide customer service and technical support, maintain the 
'company's day-to-day 'finances, manage accounts payable and receivable, submit orders to the product 
manufacturer, and perform routine clerical and administrative tasks associated with operating a small 
business. Although the petitioner states that its sales activities were handled via its internet stores, the 
lijetitioner has not established that all of its sales occur over the internet, nor has it clarified who performs non- 
managerial duties associated with maintaining the web sites or listing products on the online auction site. 
khus, while many of the petitioner's actual sales transactions may be automated there is no evidence that the 
beneficiary would be relieved from performing non-qualifymg tasks associated with the sales and marketing 
function. 
The petitioner also places great emphasis on the fact that the U.S. company arranged for the manufacturer of 
its products to ship orders directly to customers, thus relieving the beneficiary from having to pack and ship 
products and track inventory. However, the evidence submitted on appeal clarifies that this arrangement with 
the prdduct manufacturer ended in November 2004. As of the date this petition was filed, the petitioning 
company was responsible for packaging and shipping produ'cts to its customers from its own warehouse. It is 
reasonable to assume, and has not been shown otherwise, that the beneficiary, as the only employee of the 
petitioning company,~wo~1d have been responsible for performing these non-qualifying duties at the time of 
I 
filing. On appeal, the petitioner states that it is currently using the services of a certified public accountant to 
handle the company's accounts; however, there is no evidence that the company employed the accountant at 
the time the petition was filed, and the petitioner's December 2004 profit and loss statement shows no fees 
paid for professional services. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N Dec. 158, 165 
[~omm. 1998) (citing Matter of Treasure .Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, although the petitioner disputes the director's reliance on the petitioner's staffing levels, there is 
no indication in this matter that the director did not consider the reasonable needs of the organization. On the 
contrary, it appears the reasonable needs were considered, and the director concluded that the petitioner was 
unable based on its overall purpose and stage of development to support a primarily managerial or executive 
position as defined by sections 101(a)(44)(A) and (B) of the Act. Contrary to the petitioner's assertions, the 
record does not establish that the beneficiary was relieved from primarily performing non-managerial duties 
associated with the company's sales, marketing, advertising, customer service, financial, administrative and 
clerical functions. 
Collectively, the lack of a subordinate staff brings into question how much of the beneficiary's time can 
fctually be devoted to the claimed 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. Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. See 
sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1101(a)(44). The reasonable needs of the petitioner 
may justify a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 
90 percent, but those needs will not excuse a beneficiary who spends the majority of his or her time on non- 
qualifying duties. The AAO has long interpreted the regulations and statute to prohibit discrimination against 
small or medium size businesses. However, the AAO has also long required the petitioner to establish that the 
beneficiary's position consists of primarily managerial and executive duties. As discussed above, the 
petitioner has not established this essential element of eligibility. 
The petitioner asserts on appeal that the beneficiary functions primarily in an executive capacity, and the fact 
that there are no employees does not detract from the'fact that his duties.are primarily executive in nature. The 
statutory definition of the term "executive capacity" focuses on 'a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the, organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). Under the 
statute, a beneficiary must have the ability' to "direct the management" and "establish the goals and policies" 
of that organization.. Inherent to the definition, the organization must have a subordinate level of managerial 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
bolicies of the organization rather than the day-to-day operations of the enterprise. An individual will not be 
heemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the .owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision makingt' and receive only "general supervision .or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. In this case, while the beneficiary 
SRC 05 054 51613 
Page 11 
evidently exercises discretion over the business as its sole employee, the petitioner has not established that his 
primary duties are the high-level duties contemplated by the statutory definition. 
 . 
Although the petitioner appears to have hired an administrative employee subsequent to the filing .of the petition 
and claims that the U.S. company will be staffed in the near future, the petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition. A visa petition may not be approved based on speculation of 
'future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. ~omm. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 
197 1). 
The MO is sympathetic to the petitioner's claim that its business was hampered by a.succession of hurricanes 
that impacted the state of Florida in 2004. However, notwithstanding any difficulties, the petitioner appears 
to have been doing business continually since the beneficiary's arrival in the United States and will not be 
excused from the regulatory requirement that the company Support the beneficiary in a managerial or 
executive capacity. 
While the AAO recognizes that the beneficiary exercises managerial authority over the day-to-day affairs of 
the business, the fact that the beneficiary owns and manages a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of sections lOl(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). The actual 
duties themselves reveal the true nature of the employment. See Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 
11 108. Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed 
in a managerial or executive capacity under the extended petition. For this reason, the appeal will be dismissed. 
Beyond the declsion of the director, the record as presently constituted does not contain evidence of a qualifying 
relationship between the foreign petitioner and the U.S. entity, as required by 8 C.F.R. 5 214.2(1)(14)(ii)(A). To 
establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's forelgn employer and the proposed U.S. employer are the same employer (i.e. one entity with 
"branch1' offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 
,10l(a)(15)(L) of the Act; 8 C.F.R. 4 214.2(1). 
The petitioner claims to be an affiliate of, located in the United ~in~dom; based on common 
ownership and control by the beneficiary. Specifically, the petitioner states that the beneficiary owns a 50 
percent interest in each company and in fact controls both companies. In support of the petition, the petitioner 
submitted the U.S. company's stock certificates numbers one and two, whlch indicate that the company's 
1,000 issued shares are owned in equal proportions by the beneficiary and his spouse. With respect to the 
foreign entity, the petitioner submitted the foreign entity's United Kingdom Form 363s Annual Return for the 
year ended on May 31,2004 which confirms that the company has issued 5,000 shares of stock, and appears 
to show at section 4, Details of Shareholders, that 500 shares of stock were transferred from the beneficiary's 
spouse to him on June 15,2003, thus giving him a total shareholding of 2,500 shares. 
However, the petitioner also submitted the foreign entity's "Director's Report and Financial Statements for the 
Year Ended 31 May 2004," which identifies the beneficiary as the holder of only 2,000 of the company's 
'SRC 05 054 51613 
Page 12 
'5',000 issued shares. The same document indicates in the notes to the financial statements, at note 14 
"Controlling interest," that "there is no one person with a majority shareholding in the company." 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 
'?ompetent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 
'1988). The record does not persuasively support the petitioner's claim that the beneficiary holds a 50 percent 
controlling interest in the foreign entity, and thus the petitioner has not established that the petitioner and the 
'foreign entity are affiliates. For this additional reason, the appeal will be dismissed. 
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. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
'appeals on a de novo basis). 
I 
The petihon 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. $ l361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.