dismissed L-1A Case: Tailoring

US. Department of Homeland Security 
U.S. Citizenshiv and Immimation Services 
Office of~dmlnistratrve ~Geals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
APR 28 2009 
File: EAC 08 1 18 5 1096 Office: VERMONT SERVICE CENTER Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(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. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form 1-290B, 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, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
Appeals Office 
EAC 08 118 51096 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. 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 l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1 101(a)(15)(L). The petitioner, a Florida corporation established in January 2008, intends to operate 
a tailoring and custom clothing business. It claims to be an affiliate of located in Mosul, 
Iraq. The petitioner seeks to employ the beneficiary as manager of its new office in the United States for a 
period of one year. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity, or that the U.S. company 
would support the beneficiary in a primarily managerial or executive position within one year of commencing 
operations. 
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 director's 
conclusions are "clearly contradictory to the evidence presented." Counsel submits a brief and copies of 
previously submitted documentary 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 qualifLing 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: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(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 
EAC 08 118 51096 
Page 3 
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)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed in a primarily managerial or executive capacity within one year of the approval of the petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 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, 
EAC 08 118 51096 
Page 4 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for which the 
employee has authority. A first line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on March 19, 2008. 
 In a letter 
dated March 3, 2008, the petitioner stated that the beneficiary, as manager of the new U.S. company, will 
perform the following duties: 
Oversee, manage, coordinate and supervise all activities of the company. Set corporate goals 
as well as hire needed personnel, independent contractors, and quality control. Exercise 
discretion over day-to-day operations of the company. Establish goals and policies of the 
company. 
The petitioner indicated that it would hire "as many personnel as needed" during the first year in operation, 
including at least one to two alterations tailors and an assistant to handle orders. 
The petitioner submitted a proposed organizational chart which identifies the beneficiary as ownerlmanager, 
an assistant , two tailors, a fashion designer, an accountant, and a sales representative 
position. 
The petitioner submitted a seven-page business plan in which it describes its objectives of operating a 
tailoring business in Jacksonville, Florida. The petitioner indicates that, in addition to custom tailoring, it 
intends to actively obtain service contracts from local dry cleaning facilities that offer alteration services to 
their customers. The business plan indicates that the company will not require a substantial financial 
investment due to the service-oriented nature of the business. The business plan includes projected income 
and expense figures for the last six months of 2008, and projected income through 201 1. 
EAC 08 118 51096 
Page 5 
Finally, the petitioner submitted an "Employment Agreement with Independent Contractor," between = 
mas owner and 
 of the petitioning entity, as contractor. According to the agreement, 
owns three drycleaning and alteration businesses in Jacksonville, Florida. Under the terms of 
the agreement, the petitioner would perform tailoring and alterations services at the owner's premises during 
the owner's regular business hours, but must provide its own equipment and tools. The owner will pay the 
petitioner a minimum of $1,500 for services on a monthly basis. 
The petitioner submitted a sublease agreement signed on December 18, 2007, indicating that the petitioner is 
entitled to 600 square feet of space in the southwest comer of a premises located at - 
in Jacksonville, Florida, and leased by. The petitioner also submitted the master 
lease agreement for the premises, which is a dry cleaning business. The petitioner did not provide evidence 
that the landlord provided consent for the sublease of the premises. 
The director issued a request for additional evidence (RFE) on April 21, 2008, in which he requested, inter 
alia, the following: (1) a comprehensive description of the beneficiary's proposed duties and an explanation as 
to how such duties will be managerial or executive in nature; (2) complete position descriptions for all 
proposed employees, including a breakdown of the number of hours devoted to each of the employees' job 
duties on a weekly basis; and (3) information regarding the educational requirements for the proposed 
subordinate positions and copies of educational credentials for any employees already hired. The director 
also requested evidence related to the petitioner's physical premises, asset purchases, the amount of the 
investment in the U.S. company, and evidence of any advertising already conducted by the company. 
In a response dated July 15, 2008, the petitioner stated that the beneficiary will be employed in a managerial 
capacity as he will be "overseeing the implementation of the company's goals of critical components 
including marketing and quality control." who indicates that she is company secretary 
and has been hired as "Assistant Manager, Quality Control," described the beneficiary's proposed duties as 
follows: 
1. 25-30% Directs and manages overall advertising, promotions, marketing, sales, and 
public relations policies, especially based on his experience and recommendations made 
by me, Manager, Quality Control. [The beneficiary] manages my decisions regarding the 
marketing budget based on my research, analysis and recommendations. 
2. 55-60% Plans, directs, coordinates quality control program and systems for providing 
services, to ensure consistent company standards upheld in a profitable and professional 
manner. This includes, through my assistance, analyzing business and operating 
procedures to devise most efficient methods of accomplishing work in timely and cost 
effective manner. [The beneficiary] makes the final decision on quality control issues 
based on my analysis and research. This section also includes hiring and firing, which he 
has stated he will delegate to me with exceptions. [The beneficiary] always has the 
ultimate authority to hire and fire. In addition, this section includes [the beneficiary] 
delegating to me the task of finding new industries to tap into that will boost our bottom 
line if we expand in that direction. I will also assist [the beneficiary] in setting financial 
goals, as per his instructions to me. 
EAC 08 118 51096 
Page 6 
3. 
 10% Meets with me to delegate researching topics to me and also discuss my previous 
research findings on different issues, to include topics relating to marketing, quality 
control, sales figures and whether sales quotas have been met, as well as employee 
evaluation. [The beneficiary] has delegated employee evaluations to me, depending on 
my studying the market standards and quality control issues. 
4. 5% Meets with U.S. accountant to discuss liquidity and tax issues. 
stated that the beneficiary holds a senior level in the U.S. company hierarchy, "exercises discretion 
over the day-to-day activities of all components of the company, and will not perform the role of first-line 
supervisor, meet with customers, or provide the services of the company. 
According to 
 letter, the petitioning company will hire a sales representative, two tailors, a 
fashion designer and an administrative assistant by the end of the first year of operations. She indicated that as 
assistant manager, quality control, she will devote 60 percent of her time to researching market conditions, 
quality control, and cost control issues, and 10 percent of her time meeting with the beneficiary to discuss her 
findings, research and analysis. She indicated that she will devote an additional 20 percent of her time to 
managing a fashion designer, two tailors, an administrative assistant, and a sales representative, who may be 
hired as employees or independent contractors. Finally, she indicated that she will spend 10 percent of her 
time sending, financial documents to the accountant, and dealing with tax and other general management 
- - - 
issues. 
 indicated that she has a bachelor's degree in business administration and explained that her 
position is professional "as it requires much research and analysis of marketing and quality control research." 
She also indicated that she will be responsible for a $10,000 advertising budget. 
indicated that the fashion designer will draw sample dresses in popular styles, the sales 
representative will sell the dresses as per the designers' specifications, the administrative assistant will fill a 
typical secretarial role, and the tailors will provide the services of the company and also serve as customer 
service representatives. 
The petitioner submitted a copy om resume, which indicates that she has a Bachelor's degree in 
Administration, and that she previously worked as manager of in Jacksonville, Florida for four 
years, before being hired by the petitioner in April 2008. The petitioner submitted evidence that it had 
$10,000 in its bank account as of March 2008. In addition, the evidence shows that the beneficiary 
transferred $15,000 to a money market account owned by 
 on May 2,2007. 
The petitioner also provided a copy of an equipment lease showing that the company leased three sewing 
machines, a fitting room, three tables and chairs, and three lamps already located at their leased premises, 
Finally, the petitioner submitted a photograph that is ostensibly of its leased premises. The exterior 
photograph depicts a dry cleaning establishment located at street address "' There is what appears 
to be a temporary sign in the window bearing the petitioner's company name, although the spelling is not the 
same as that indicated on the petition. The interior photographs show three sewing machines on tables, three 
chairs and a fitting room. 
EAC 08 118 51096 
' Page 7 
The director denied the petition on August 6, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity within one year. The director 
observed that the petitioner's description of the beneficiary's duties was insufficient to establish that the 
beneficiary will perform primarily managerial or executive duties. The director emphasized that the duties 
were described in abstract form and merely paraphrased the general definitions of managerial and executive 
capacity. In addition, the director determined that the petitioner did not establish that the beneficiary would 
be managing a staff of managerial, supervisory or professional workers, or managing an essential function of 
the organization. The director questioned whether a tailor shop would require the services of professional 
employees. The director concluded that the beneficiary would likely be primarily engaged in the non- 
managerial, day-to-day operations of the business. 
On appeal, counsel for the petitioner asserts that the petitioner did in fact submit a detailed position 
description for the proffered position sufficient to establish his employment in a managerial or executive 
capacity, as well as evidence that the beneficiary's direct subordinate is both a professional and a supervisor. 
Counsel further asserts that the director erred by referring to the proposed employment of additional staff as 
merely "speculative," emphasizing that the instant petition is for a new office and therefore the petitioner has 
one year in which to staff the office and should not be evaluated based on its current staffing levels. Counsel 
contends that the fact that the director found that the petitioner did not establish who would provide the sales 
and services of the business suggests that the director failed to review the evidence submitted, specifically the 
business plan and the petitioners' response to the RFE. 
Counsel asserts that the director incorrectly characterized the petitioner as a tailoring business when it is in 
fact primarily a custom clothing store. Counsel emphasizes that the director's assumptions are nevertheless 
contrary to USCIS regulations, which do not dictate which types of business may qualify for L-1A visas. In 
addition, counsel claims that the director failed to consider that the beneficiary would qualify as a function 
manager, even if it were correct to state that he would not supervise and control the work of managerial, 
supervisory or professional workers. Counsel submits a copy of an unpublished AAO decision from 1992 in 
support of this claim. 
Finally, counsel asserts that the director did not address other documentary evidence submitted, including the 
petitioner's business plan, employment offer letter, leases, photographs, organizational charts, information 
showing the funding of the business, bank account information and the petitioner's existing contract for 
services with another company. 
Upon review, the petitioner has not established that the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity within one year of commencing operations. 
However, preliminarily, the AAO notes that, although the director requested additional relevant evidence 
pertaining to the regulatory requirements for a "new office" petition pursuant to 8 C.F.R. 8 214.2(1)(3)(~), the 
notice of decision does not clearly indicate that the director considered all relevant evidence in determining 
whether the beneficiary would be employed in a qualifLing capacity, or whether the petitioning company would 
support a managerial or executive position, within one year. 
EAC 08 118 51096 
Page 8 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The 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). As the AAO's review is 
conducted on a de novo basis, the AAO will herein address the petitioner's evidence and eligibility. 
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-l 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. fj 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. 4 
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 
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 market/prospective 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. 
Here, the totality of the evidence is insufficient to establish how the petitioner will grow to the point where it 
will be able to support the beneficiary in a primarily managerial or executive capacity within one year of 
commencing operations. 
EAC 08 118 51096 
' Page 9 
First, 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. 3 214.2(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. 
The petitioner initially provided a vague and nonspecific description of the beneficiary's duties that merely 
paraphrased the statutory definitions of managerial and executive capacity. The petitioner indicated that the 
beneficiary will "manage, coordinate and supervise all activities," "set corporate goals," "exercise discretion 
over day-to-day operations," and "establish goals and policies of the company." 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. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). 
While the petitioner submitted a lengthier description in response to the director's request for evidence, the 
description also lacked specificity and fell short of establishing that the beneficiary's duties would be 
primarily managerial or executive in nature within one year. For example, the petitioner indicates that the 
beneficiary will devote 55 to 60 percent of his time planning, directing and coordinating quality control 
programs and systems, but does not explain what managerial or executive duties this might entail within the 
context of the petitioner's business. It is unclear based on the current record what type of "quality control 
system" would be implemented within a tailoring and custom clothing business operating in the corner of a 
dry cleaning establishment, or how the implementation and coordination of such systems would require more 
than 20 hours per week of planning and managerial oversight on a continuous basis. As such duties would 
account for more than half of the beneficiary's time and have not been adequately explained, the petitioner's 
description of the beneficiary's duties fails to establish that the beneficiary would be performing primarily 
managerial or executive duties. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course of his 
daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 1108. 
Second, the petitioner has not adequately described the proposed nature of the office, the scope of the entity, 
its organizational structure, and its financial goals, as required by 8 C.F.R. 3 214.2(1)(3)(v)(C)(I). The 
petitioner's proposed staffing levels must also be considered in determining whether the beneficiary's 
proposed managerial and executive duties are plausible. Pursuant to section 101(a)(44)(C) of the Act, 8 
U.S.C. 3 1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting 
in a managerial or executive capacity, USCIS must take into account the reasonable needs of the organization, 
in light of the overall purpose and stage of development of the organization. At the time the petition was 
filed, the petitioner stated in its letter dated March 3, 2008 that the U.S. company intended to hire one to two 
tailors within the first year of operations, along with "an assistant to handle orders." This is exactly the same 
EAC 08 118 51096 
Page 10 
staffing structure of the foreign entity that the beneficiary has been operating in Iraq for five years and the 
AAO finds it reasonable to believe that the petitioner anticipates hiring these employees within one year. 
At the same time, the petitioner submitted an organizational chart identifying an assistant (already hired), and 
vacancies for two tailors. The chart indicates that all employees will report directly to the beneficiary, with no 
subordinate supervisor. The initial organizational chart also identifies a fashion designer and sales 
representative position, but the petitioner provided no timeline for the hiring of such employees. The omission 
of such staff from the above-referenced letter suggests that the petitioner did not intend to hire them within 
the first year of operations. The petitioner submitted only a skeletal business plan, which made no mention of 
the company's hiring plan or anticipated staffing levels, and included no income or expense projections 
beyond the first six months in operation. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). The AAO cannot speculate as to when the proposed employees might be hired or otherwise determine 
how many employees the company would support at the end of the first year of operations, or who would be 
performing the day-to-day, non-managerial functions of the petitioner's business. There is insufficient 
evidence to support the petitioner's claim that the beneficiary would supervise subordinate managers and 
professionals within one year. 
When asked to further clarify the company's proposed staffing within the first year of operations, the 
petitioner made a material change by elevating the proposed position of "assistant" to "assistant manager, 
quality control" in response to the request for evidence. The petitioner identified the same individual as 
holding both positions. The position as initially described was "assistant to handle orders." It was depicted as 
lateral to the tailor positions on the organizational chart and was clearly not intended to be supervisory or 
professional in nature. The petitioner also added an administrative assistant position that was not mentioned 
previously. The petitioner submitted no explanation for the change in its proposed organizational chart. 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). 
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. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Given the unexplained changes in the 
petitioner's proposed staffing structure, the AAO does not find the description submitted for the "assistant 
manager" position to be credible. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the 
petitioner's business, the employment and remuneration of subordinate employees, and any other factors 
contributing to a complete understanding of a beneficiary's actual role in a business. The evidence must 
substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement in an 
EAC 08 118 51096 
Page 11 
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 
manager position. 
According to the evidence of record, the petitioner will commence operations with 600 square feet of space 
located within a drying cleaning establishment, and has secured a lease for three sewing tables, three sewing 
machines, a fitting room and three chairs. There is no apparent office space, desks, computers or space for 
administrative or managerial staff to work. Therefore, the petitioner's claim that the company will employ 
two managers who will both spend the majority of their time researching and making decisions regarding 
quality control issues and marketing strategies is not persuasive. 
As noted above, the petitioner has not submitted a detailed business plan identifying its anticipated start-up 
expenses and operating costs for the first year of operations, so its claims regarding its intended expansion 
and hiring plans are unsubstantiated. While the petitioner claims that it does not intend to operate merely as a 
tailoring business, it has not submitted sufficient evidence to establish that it can feasibly support the claimed 
proposed staff of a manager, an assistant manager, two tailors, a fashion designer, an administrative assistant, 
and sales representatives within one year. 
 ath her, the record shows that the petitioner would be a contractor providing tailoring or alteration services for 
one or more dry cleaning establishments for a flat fee of $1,500 per month, and that the beneficiary would be 
acting at most as a first-line supervisor of tailors and an assistant who must be deemed non-professional 
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). 
While the AAO recognizes that the beneficiary will exercise discretion over the day-to-day affairs of the 
business, the fact that the beneficiary manages a small business is insufficient to establish that the beneficiary 
is employed in a managerial or executive capacity. The petitioner has not established that it would employ 
sufficient lower-level staff within one year to perform the day-to-day tasks associated with operating a 
service-oriented retail business, or evidence of a proposed organizational structure sufficient to elevate the 
beneficiary to a supervisory position that is higher than a first-line supervisor of non-professional employees. 
On appeal, counsel 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 as a function 
manager. 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. 5 103.3(c) provides that AAO precedent decisions are 
binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly 
binding. 
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 10 l(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 l(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 
EAC 08 118 51096 
Page 12 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, 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. See 8 C.F.R. 5 214.2(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. Here, the petitioner has not clearly articulated how the beneficiary would qualify as a 
function manager within one year. 
Overall, the vague job description provided for the beneficiary, the lack of detail regarding the petitioner's 
business plan and hiring plan for the first year of operations, considered with the material changes made to the 
proposed organizational structure following the issuance of the request for evidence, prohibits a determination 
that the petitioner could realistically support a managerial or executive position within one year. 
Based on the foregoing discussion, the AAO concurs with the director's conclusion that the petitioner failed to 
establish that the beneficiary would be employed in a primarily managerial or executive capacity within one 
year. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the beneficiary has been employed 
by the foreign entity in a primarily managerial or executive capacity. The record shows that the beneficiary 
serves as manager and owner of a tailor shop located in Mosul, Iraq. At the time of filing, the petitioner 
submitted an organizational chart showing that the shop employs two tailors and one assistant, in addition to 
the beneficiary. According to the beneficiary's resume, his duties are: (1) managing all aspects of the business; 
(2) hiring and training needed personnel; (3) supervising service to ensure timely delivery of service; and (4) 
resolving any issues with orders, customer complaints and suppliers. 
In response to the request for evidence, the petitioner submitted a new organizational chart in which it 
elevated the individual identified as "assistant" to the position of "assistant manager." The petitioner claimed 
that the beneficiary does not perform any services or deal with customers, but rather focuses on managing 
marketing, quality control and cost control, while relying on his assistant manager to directly supervise the 
tailors, hire and fire employees, perform research functions and review production and accounting records. 
The petitioner provided no explanation for the revisions to the foreign entity's organizational chart. 
Again, a petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). When responding to a request for evidence, a 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, or its associated job responsibilities. The information provided 
by the petitioner in its response to the director's request for further evidence did not clarify or provide more 
specificity to the original duties of the position, but rather added new generic duties to the job description and 
a subordinate tier of management not depicted at the time the petition was filed. Therefore, the analysis of the 
beneficiary's duties with the foreign entity will be based on the job description and organizational chart 
submitted with the initial petition. 
EACO~ 11851096 
Page 13 
Based on the initial evidence, the beneficiary's duties with the foreign entity appear to include overseeing 
non-professional employees engaged in tailor and alteration services, customer service, and general oversight 
of the business. While the beneficiary likely exercises the requisite authority over the foreign entity as its 
owner and manager, the evidence submitted is insufficient to establish that his primary duties have been the 
high-level duties contemplated by the statutory definitions of managerial and executive capacity. The AAO 
does not dispute that small companies require leaders or individuals who plan, formulate, direct, manage, 
oversee and coordinate activities; however the petitioner must establish with specificity that the beneficiary's 
duties comprise primarily managerial or executive responsibilities and not routine operational or 
administrative tasks, or first-line supervision of non-professional employees. 
The fact that the beneficiary manages a business, regardless of its size, does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987)(noting that 
section 101(a)(15)(L) of the Act does not include any and every type of "manager" or "executive"). Here, 
the record fails to establish that the majority of the beneficiary's duties with the foreign entity have been 
primarily directly managing the organization or a component or function of the organization. For this 
additional reason, the appeal will be dismissed. 
The final issue to be addressed is whether the petitioner has secured sufficient physical premises to house the 
new office, as required by 8 C.F.R. tj 214.2(1)(3)(v)(A). 
The petitioner submitted a copy of a sublease agreement indicating that the company has secured 600 square 
feet of space located in "the southwest corner of" located at '-" in Jacksonville, 
Florida. The lease agreement was ostensibly signed on December 18, 2007, prior to the incorporation of the 
petitioning company. Although the petitioner submitted a copy of the master lease agreement between its 
landlord, -,., and <, the master lease indicates that 
- may only sublet the premises with the prior written consent of its landlord. The petitioner 
did not provide evidence that the sublessor had obtained such written consent. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. at 165. 
Moreover, when asked to provide photographs of the interior and exterior of its premises, the petitioner 
submitted photographs taken at a different address. The photograph showed a temporary sign bearing the 
petitioner's company name in the window of a dry cleaning establishment located at street address '= 
Clearly, the photographs do not depict the premises referenced in the sublease agreement. Doubt cast 
on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency 
of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). 
Based on the foregoing, the petitioner has not established that it has secured sufficient physical premises to 
house the new office. For this additional reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds,for denial in the initial decision. See 
. EAC08 11851096 
' Page 14 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
Dept. of Transp., NTSB, 925 F.2d 1 147, 1 149 (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 petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if he or she shows that the AAO abused its discretion 
with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. 
Supp. 2d at 1 043. 
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.