dismissed L-1A Case: Telecommunications

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-T-USA, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 14, 2016 
PETITION: FORM I-129, PETJTION FOR A NONIMMIGRANT WORKER 
The Petitioner, a voice over Internet protocol (VOIP) company, seeks to temporarily employ the 
Beneficiary as the president of its new office under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 
U.S.C. § 1101(a)(15)(L). The L-lA classification allows a corporation or other legal entity (including 
its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work 
temporarily in an executive or managerial capacity. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that the Beneficiary would act in a managerial or executive capacity in 
the United States within one year of approval of the petition. Further, the Director found that the 
Petitioner did not demonstrate that it has sufficient physical premises to commence doing business in 
the United States.1 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence 
meant to demonstrate that the Beneficiary would act in an executive capacity within one year of 
approval of the petition. Further, the Petitioner provides additional evidence indicating that it has 
acquired additional office space and that it now has sufficient premises to house its new office. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
1 Lastly, the Director concluded that the Beneficiary was not eligible to change his status and extend his stay as he had 
been working without authorization while in the United States on a B-2 visitor visa. We will not address the Director's 
denial of the extension of status request in this decision, as this issue is not properly before us on appeal. The regulation 
at 8 C.F.R. § 214.1(c)(5) states: "Decision in Form 1-129 or 1-539 extension proceedings. Where an applicant or 
petitioner demonstrates eligibility for a requested extension, it may be granted at the discretion of the Service. There is 
no appeal from the denial of an application for extension of stay filed on Fonn 1-129 or 1-539." 
Matter of M- T- USA, Inc. 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. 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 affiliat~ thereof in a managerial, executive, or specialized knowledge 
capacity. Id. 
The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-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 
(1)(1)(ii)(G) ofthis 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 him/her 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.P.R. § 214.2(1)(3)(v) further provides that if the petition indicates that a 
beneficiary is coming to the United States as a manager or executive to open or to 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 involved 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 (1)(1 )(ii)(B) or (C) of this section, supported by information 
regarding: 
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(b)(6)
Matter of M-T- USA, Inc. 
\ 
(1) 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 ofthe foreign entity. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary would be employed in a managerial or executive capacity within one year of approval of 
the petition. The Petitioner consistently claims that the Beneficiary would be employed in an 
executive capacity; therefore, we restrict our analysis to this issue and will not address whether he 
would be employed in a managerial capacity. 
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; 
I 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in d1~cretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) of the Act. 
A. Evidence of Record 
The Petitioner filed the Form I-129 on November 6, 2015. On the Form I-129, the Petitioner 
indicated that it has two current employees in the United States and no gross annual income to date. 
In a support letter submitted along with the petition, the Petitioner stated that it "is the subsidiary of 
Bangladesh '[ ... ], an organization involved in providing to Corporate, 
3 
(b)(6)
Matter of M- T- USA, Inc . 
Manufacturers, Business Group consistently to meet Operational and Business objectives on time 
and on budget with due standard." The Petitioner stated that the foreign entity now has plans to 
"expand our business based on the model that we have been successful with in Bangladesh" and that 
the Beneficiary was appointed to lead this effort. 
, The Petitioner explained that the Beneficiary would perform the following duties in the United 
States: 
• Responsible for establishment [of] total business operations and expansion of [the 
Petitioner] 
• Increase [Petitioner] business to all States of the US, Canada, Garibbean, Latin 
and South America 
• Making corporate business Decisions regarding promotion and growth of 
business. 
• Develop sales and marketing and Public Relations Strategies to acquire new 
customers. 
• Make decisions regarding capital allocations for company's business development 
matters. 
• Allocate budget for all functions pertaining to the Business development of the 
company such as promotion, marketing, etc. 
• Devise marketing strategies that will increase the company's effectiveness and 
profitability. 
• Oversee the negotiations of lease, broadcasting contr~cts, equipment, intellectual 
property contracts with artists and other program providers, and dealing with third 
party vendors of programs. 
• Identify opportunities for strategic alliances and partnerships that further business 
goals. 
• Set individual targets for different Executives, and for independent contractors 
who provide marketing services to [the Petitioner]. 
• Decide salaries and bonuses for all employees within his department. 
• Directly report to the Board of Directors of [the Petitioner], and its parent entity 
The Petitioner submitted a business plan dated January 2015, stating that it would act as an 
international carrier providing "high quality VOIP service" and prepaid calling cards. The business 
plan indicated that the Petitioner "offers a different type of Voice over Internet Protocol (VoiP) 
Services and Products under the Brand name 
The Petitioner further indicated that it provides "the full spectrum of whole voice capabilities, and a 
"dynamic network" broadening the reach of a customer's VoiP calling area, including a 
"licensed prepaid calling service in USA and Global, operated by [the Petitioner] since 2015." The 
Petitioner stated that it "delivers quality voice traffic to more than 190 countries worldwide with the 
use of its own network of international gateways spanning North America, Europe and Asia." 
4 
Matter of M- T- USA, Inc. 
The business plan further included financial projections for the business, estimating that it would 
earn $2,470,000 in revenue during the first year of operation and over $5 million during its second 
year. The business plan included a personnel plan reflecting that the Petitioner planned intended to 
hire the following employees at the following annual salaries: a country manager ($24,000), a head 
of sales ($24,000), a head of operations ($12,000), a finance & accounts employee ($3600), an 
"admin & HR" employee ($3600), an engineer ($6000), a programmer ($7200), an "office asset & 
peon" ($2400), and a driver ($1800). The personnel plan reflects that all of these positions would be 
filled during the initial year of operations and would receive incremental salary increases in 
subsequent years. The personnel plan does not identify any additional positions to be filled after the 
first year. 
In addition, the business plan contained a table detailing ant~cipated operating expenses during the 
first year and reflected that the company would have $149,384 in expenses and that it would make 
$124,000 in "major purchases" during the first year. The Petitioner stated that "to establish the 
business we must need $460,846 [and] as start-up cost $124,000." The Petitioner indicated that 
"funding for the launch of the business will be provided primarily by equity from the finance 
investor," noting that it "is in the process of negotiating with [a] potential investor for the seed cash 
needed to start the business." The business plan mentions that the investor would receive no more 
than 50% equity in the company. 
The Petitioner provided a proposed organizational chart reflecting that the Beneficiary would act as 
president overseeing a director who in tum would supervise a manager ~ network operation center 
(NOC), a manager - business development, a head of sales, an operational manager, and a manager -
finance & billing. The chart also included an NOC support team member, an associate, two account 
managers, an IT manager, an NOC engineer, a software programmer, and an accountant, for a total 
of 15 employees, including the Beneficiary. 
The Director later issued a request for evidence (RFE) advising the Petitioner that it did not submit 
sufficient evidence to demonstrate that its new office would support the Beneficiary in a managerial 
or executive capacity within one year. As such, the Director requested that the Petitioner submit a 
letter from the foreign entity indicating the proposed number of employees and positions to be filled 
during the first year, including a summary of the duties and expected education levels of these 
positions. The Director also asked the Petitioner to provide information on the size of the United 
States investment and how it would support the Beneficiary in a managerial or executive capacity 
within one year. Further, the Director requested that the Petitioner submit a timetable for each 
proposed action it would take during the first year to launch the new office. 
In a response letter, the Petitioner stated that its "goal [is] to become established as the leading 
· Telecom Engineering Service provided in North America" and that it would rely on the skills of its 
"world class management team" abroad, including the Beneficiary, to accomplish this. The 
Petitioner indicated that it "expects to require a highly qualified CFO, HR Manager, Technical 
Professionals, additional customer service personnel, additional sales reps, and a public relations 
manager." 
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(b)(6)
Matter of M-T-USA, Inc. 
I 
The Petitioner stated thafthe Beneficiary's "U.S. assignment will entail similar job duties as those he 
has ~t the foreign company," which it listed as follows (verbatim): 
(i) Direct and coordinate the operations of the business; (25%) 
(ii) Manage subordinate staff, assign duties and ensure they adhere to operation 
procedures ( 1 0% ); 
(iii) Establish business plans, goals, and develop administrative strategies to 
improve customer service, drive sales policies and increase profitability 
(20%); 
(iv) Review Financial Documents or sales reports to ensure achievement of 
business goals (15%); 
(v) Market effective and objective decisions regarding operational choices in 
work procedures, inventory application, ordering and scheduling (10%); 
(vi) Forecast staffing needs and develop recruiting strategies to provide optimal 
staffing in all areas; ( 
1 0%) 
(vii) Exercise discretion authority over hiring and firing employees (10%) 
The Petitioner further explained 
that it "also set aside a budget amount and opened a business 
checking account with and total turnover since its inception [is] more than $70,000." 
The Petitioner noted that the foreign entity decided to "bear 80% of the salary" and "provide cash 
thru an inter-company payment system" in the event of any shortfall. 
The Petitioner submitted a "Special Purpose Auditors' Report" from dated 
December 25, 2015, stating that the Petitioner would be "federally incorporated and will get FCC 
214 registration as a leading wholesale termination provider of high quality VOIP service worldwide 
and FCC 499 Retails prepaid calling card business in the USA." The report indicated that the 
Petitioner "will be a fast growing VoiP carrier of international long distance voice calls." The report 
explained that had "looked into the business plan prepared by the management 
[of the Petitioner]" and "considered the growth pattern suggested by the management." The 
auditor's report estimated the Petitioner would earn $1.2 million in revenue during the first year and 
that it would have three employees during the first year and five during the second year. 
The Petitioner provided a revised proposed organizational chart 
reflecting the company's projected 
hiring during the first three years. The chart indicated that during the first year, there would be a 
five-tier structure which would include the Beneficiary, a director, a vice president - network 
operation, a manager - finance and billing, and an accountant. Projections for the second year 
showed that the company would hire a head of sales subordinate to the Beneficiary, an operational 
manager below the Director, an IT manager_subordinate to the vice president- network operation, a 
manager-business development and an associate employee subordinate to the accountant. The chart 
also reflected year three hiring plans, indicating that the company would hire several operational 
employees at this time, including "support 
team-1, network operation centre," an "NOC engineer," a 
software programmer, an account manager, and a customer service employee. 
(b)(6)
MatterofM-T-USA , Inc. 
Along with the proposed organizational chart, the Petitioner submitted duty descriptions for the 
Beneficiary and other proposed members of the organization, including a "Director and Company 
Secretary," an employee devoted to "Human Resources, Technology and Administration," and a vice 
president. The Petitioner set forth the following duties for the Beneficiary as president and CEO: 
• formulating and successfully implementing company policy; 
• directing strategy towards the profitable growth and operation of the company; 
• developing strategic operating plans that reflect the longer-term objectives and 
priorities established by 
the board; 
• maintaining an ongoing dialogue with the chairman of the board; putting in place 
adequate operational planning and financial control systems; 
• ensuring that the operating objectives and standards of performance are not only 
understood but owned by the management and other employees; 
• closely monitoring the operating and financial results against plans and budgets; 
• taking remedial action where necessary and informing the board of significant 
changes; 
• maintaining the operational performance of the company; 
• monitoring the actions of the functional board of directors; 
• assuming full accountability to the board for all company operations; 
• representing the company to major customers and professional associations; 
• building and maintaining an effective executive team. 
The Petitioner provided a different version of its business plan, also dated January 2015, in response to 
the RFE. The plan stated that the Petitioner "expects to require a highly qualified CFO, HR manager, 
additional customer service personnel, additional sales reps, and a public relations manager." The plan 
indicated that the Petitioner will have strong profits based on $5 million in sales by Year 3" and that it 
"is currently seeking funding in the amount of $500,000 as a three-year loan for the purpose of 
increasing market share, opening up additional retail' locations, hiring additional staff, and effectively 
advertising and promoting its services." The plan explained that the Petitioner would sell "cellular and 
two way radio service through progressive retail locations and outside sales representatives," and . it 
stated that it had "established partnering relationships with leading companies in the industry and 
customers," including and The Petitioner 
indicated that it has "been 
involved in selling cellular networking service and accessories" and that it "carries the latest in 
wireless technology from two of the major wireless networking companies in the industry." 
In addition, the business plan explained that the Petitioner "was capitalized with financing arranged 
through first round investors in the amount of $100,000," funds which were used to acquire 
"inventory, developing equipment and a[n] initial product and service line, and creating supportive 
marketing materials." The Petitioner asserted that the company would "do very well" in comparison to 
other start-up companies, stating that it had a goal of capturing 5% of the market in North America 
during the first year. The Petitioner referenced "strategic partnerships with leading companies in the 
industry," indicating !hat it had partnered with and 
(b)(6)
Matter of M- T- USA, Inc. 
In denying the petition, the Director stated that the Beneficiary's duties were generalized and did not 
establish that he would act in a managerial or executive capacity within one year. The Director found 
that the Petitioner did not demonstrate that the Beneficiary would oversee other supervisors or 
professional subordinates. The Director indicated that it was not clear that the Petitioner would have 
employees after the first year to provide goods and services and relieve him from performing non­
qualifying operational tasks. 
In its appeal, the Petitioner asserts that the Beneficiary will act in an executive capacity within one year 
of launching its operations. The Petitioner provides an additional support letter from its Director 
stating that the Beneficiary's "outstanding performances have contributed to securing several major 
deals with big telecommunication companies such as and The Petitioner submits 
another duty description for the Beneficiary as follows: 
[The Beneficiary's] role as the President will be supervising and controlling the USA 
operations of our company at our New York office. He will evolve new strategies and 
programs to expand our Telecom business and thus to contribute to the expansion of 
our business in the United States. He will work closely with the company's senior 
management in the development and growth of these deals in the US marketplace. He 
will evaluate and review the current trade deals. His proposed duties in the U.S. will 
include: 1) Supervising a team of managers who manage the operations of the networks 
for start-up markets and new technologies 2) Completely handling the responsibilities 
of all the operations in the United States which include the following: a) Supervising a 
team of top management personnel who run the day-to-day operations at Corp. in the 
United States. b) Providing key strategic technology and project management directives 
to stay ahead in the Telecommunications industry. c) Manage finance operations, 
Personnel and Human Resources development policies. d) Set guidelines for quality 
management, technical support management, and attended Telecommunications 
compliance workshops. 3) Report back to the parent company in Bangladesh. 4) 
Identify potential deals. 
The Petitioner further states on appeal that the Beneficiary "will direct the overall operations and will 
NOT be overseeing the primary performance of subordinates' tasks." The Petitioner indicates that the 
company will "hire an additional ten employees for our subsidiary office within one year, including 
Vice President, Director, Vice President Network Operations, Manager Finance & Billing, Accountant, 
Head of Sales, Operational manager, IT Manager, Manager Business Development and Associate 
Staff." 
B. Analysis 
Upon review of the petition and the evidence of record, including materials subp1itted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary would be 
employed in an executive capacity within one year of approval of the new office petition. 
8 
Matter of M- T- USA, Inc. 
When a new business is first 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 
low-level 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 that first year. The 
"new office" regulations allow a newly established petitioner one year to develop to a point that it 
can support the employment of a beneficiary in a primarily managerial or executive position. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new 
office," it must show that it is prepared to commence doing business immediately upon approval so 
that it will support a manager or executive within the one-year timeframe. 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. See generally 8 C.F .R. 
§ 214.2(1)(3)(v). The Petitioner must describe the nature of its business, its proposed organizational 
structure, financial goals, and submit evidence to show that it has the financial ability to remunerate 
the Beneficiary and commence doing business in the United States. !d. 
When examining the managerial or executive capacity of the Beneficiary, we will look firstlto the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner's description 
of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate 
whether such duties are in a managerial or executive capacity. !d. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F .2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In the current matter, the Petitioner has provided multiple vague duty descriptions that do not convey 
in detail the Beneficiary's duties during and after the first year of operation. For instance, the 
Petitioner submitted various broadly stated duties that could be applicable to any executive acting in 
any industry such as him being "responsible for establishment [of] total business operations," 
increasing business, "making corporate decisions," making "decisions regarding capital allocations," 
"devis[ing] marketing strategies," "identify[ing] opportunities for strategic alliances," managing 
subordinate staff and assigning duties, establishing business plan, goals, and administrative 
strategies, "develop[ing] recruiting strategies," formulating and implementing company policy, 
"developing strategic operating plans," putting in place "operational planning and financial control 
systems," ensuring that operating objectives and standards of performance are u11derstood and 
owned by management, amongst other vague tasks. In each case, the Petitioner does not specifically 
articulate or document operations the Beneficiary will establish, corporate decisions he will likely 
make, capital he will allocate, marketing strategies he will implement, plans, goals, and strategies he 
9 
Matter of M- T- USA, Inc. 
will establish, recruiting he will manage, policies, operating plans, or financial control systems he 
will institute. , 
On appeal, the Petitioner provides yet another duty description for the Beneficiary. Although this 
description includes some references to the Petitioner's type of business, it still is not adequately 
specific to convey his actual day-to-day tasks during and after the first year. For instance, the 
Petitioner states that the Beneficiary will "supervise a team of top management personnel," provide 
"key strategic technology and project management directives," "manage finance operations, 
personnel and human resources development policies, "set guidelines for quality management, 
technical support management," and "attend Telecommunications compliance workshops." 
However, the Petitioner still does not specify the Beneficiary's actual day-to-day tasks or the top 
management personnel he will supervise, key strategic or project management directives he will 
likely set, finances he will oversee, quality management, personnel and human resources policies he 
will establish, or telecommunications compliance workshops he will attend. Reciting a 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. Conclusory assertions regarding a 
beneficiary's employment capacity are not sufficient. 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), aff'd, 905 F .2d 41 (2d. Cir. 1990). 
Overall, the position description alone is insufficient to establish that a Beneficiary's duties would be 
primarily in a managerial or executive capacity, particularly in the case of a new office petition 
where much is dependent on factors such as the Petitioner's business and hiring plans and evidence 
that the business will grow sufficiently to support a beneficiary in the intended managerial or 
executive capacity. The Petitioner has the burden to establish that it would realistically develop to 
the point where it would require the Beneficiary to perform duties that are primarily managerial or 
executive in nature within one year. Accordingly, the totality of the record must be considered in 
analyzing whether the proposed duties are ph;msible considering the Petitioner's anticipated staffing 
levels and stage of development within a one-year period. See 8 C.P.R.§ 214.2(1)(3)(v)(C). 
As noted, on appeal, the Petitioner contends that the Beneficiary will act in executive capacity within 
one year. 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 a beneficiary to direct 
and a beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-'-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as an 
owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives, 
the board of directors, 9r stockholders of the organization." !d. 
10 
Matter of M-T- USA, Inc. 
Here, the Petitioner has submitted several different hiring and personnel plans for its initial year of 
operations and has not offered any explanation for the discrepancies between these plans. For this 
reason, we cannot determine wh~ther there would be sufficient staff to relieve the Beneficiary from 
significant involvement in the day-to-day operations within one year, so that he would reasonably be 
able to focus primarily on the broad goals and policies of the company. 
In support of the petition, the Petitioner provides a projected organizational chart reflecting fifteen 
employees, including the Beneficiary, a director, a network operation center manager, a business 
development manager, a head of sales, and operational manager, a finance and billing manager, a 
network operation center support employee, an associate, two account managers, an engineer a 
software programmer and an accountant. However, in the accompanying business plan the 
Petitioner twice states that it will hire a total of nine employ~es in the first year, including a country 
manager, a head of sales, a head of operations, a finance & accounts employee, an administrative 
and human resources employee, an engineer, a programmer, an office assistant, and a driver. 
Further, in response to the RFE, the Petitioner indicated that it would hire only five employees 
during the first year, including the Beneficiary, a Director, a vice president- network operation, a 
manager of finance and billing, and an accountant. At the same time, the Petitioner submitted a 
second business plan which stated that the company "expects to/equire a highly qualified CFO, HR 
manager, additional customer service personnel, additional sales reps, and a public relations 
manager." Finally, the "Special Purpose Auditor's Report," prepared for the Petitioner by an 
accounting firm indicated that the company would only hire three employees during the first year 
and grow to a total of 12 employees by the end of 2019. 
On appeal, the Petitioner now states that it would hire ten employees during the first year. Overall, 
the Petitioner has claimed that it will hire three, five, nine, ten, or fifteen employees during its initial 
year of operations and we cannot determine which, if any, of these figures represents the Petitioner's 
actual anticipated staffing level for the upcoming year. The unresolved discrepancies in the 
Petitioner's proposed positions and hiring plans leave question as to its actions during the first year 
and whether it would likely support the Beneficiary in an executive capacity within the year. The 
Petitioner has not resolved these inconsistencies with independent, objective evidence pointing to 
where the truth lies. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
In fact, to the extent the Petitioner provided specifics regarding its hiring plans during the first year, 
these leave question as to whether it will hire sufficient operational level employees to support the 
Beneficiary in an executive capacity. For example, the Petitioner's initial business plan, the only 
one of the submitted staffing plans that included proposed salaries and financial objectives, included 
a personnel table reflecting that only the Beneficiary and "head of sales" would earn more than 
$12,000 per year, while the remaining employees would earn salaries commensurate with part-time 
employment for the first five years of operations. 'Another version of the Petitioner's hiring plan 
indicated that the company would hire four executive level employees and an accountant during the 
first year and indicated that it would not hire operational staff, such as support teams, engineers, 
software programmers, and account managers, until the third year. Finally, another projection 
II 
(b)(6)
Matter of M-T-USA, Inc. 
indicated that the company would have only three employees by the end of its initial year in 
operation. None of these hiring plans suggest that the Petitioner would hire sufficient lower-level 
employees to relieve the Beneficiary from primarily performing non-qualifying operational tasks 
within the first year. 
Further, the Director requested that the Petitioner submit duty descriptions and expected educational 
credentials for each of its proposed positions. However, the Petitioner did not submit this requested 
evidence. In fact, the Petitioner provided duty descriptions for only two executive positions 
subordinate to the Beneficiary, one of which, the employee devoted to "human n.;sources, technology 
and administration," is not reflected on the accompanying organizational chart'. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b)(14). Once again, the Petitioner has not resolved these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-
92. 
In addition, the Petitioner made various assertions regarding its current operations and projected 
plans that it has not substantiated with supporting evidence. For instance, the Petitioner stated that it 
has certain proprietary technologies it will introduce to the United States, including an asserted 
technology and but it provides no documentation that it or the 
\ 
foreign employer owns or licenses any proprietary technologies or products. The Petitioner states 
that it is already providing technologies and operating VOIP networks in the United States and over 
100 countries worldwide, and that it has partnered with companies such as and 
and However, the Petitioner has not corroborated these 
statements with evidence that it already 
provides networks or services, or with evidence that it has 
already partnered with large telecommunications companies in the United States. In addition, the 
Petitioner indicates that it will open and operate retail stores in the United States, but does not clarify 
what would be sold in these stores. In fact, the Director asked the Petitioner to articulate specific 
actions it would take during the fir~t year to launch the business along with a timetable for these 
actions, but it did not provide this information, submitting only unsupported assertions regarding 
already existing operations. Going on record without' supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter of Treasure Craft of Cal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). 
Furthermore, the Petitioner has not established the size of the United States investment as required 
by 8 C.F.R. § 214.2(1)(3)(v)(C)(2). The Petitioner provides conflicting statements regarding the 
foreign entity's required investment in the new venture. The Petitioner stated that the fdreign entity 
has already invested $70,000 in the new venture and that it will cover any cost overruns during the 
launch of the company, while later it indicated that it will require $500,000 in funding, and 
elsewhere states that it has gained $100,000 in funding from "investors." In its initial business plan, 
the Petitioner stated that it required $460,846 to "establish the business" and indicated that this 
would be gained "primarily from the finance investor." The Petitioner explained in another part of 
the record that it was "in the process of negotiating with [a] potential investor for the see,d cash 
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Matter of M- T- USA, Inc. 
needed to start the business." However, at no point does the Petitioner definitively articulate or 
document the foreign entity's planned investment in the new company and how this amount is 
sufficient to develop the company during the first year to support the Beneficiary in an executive 
capacity. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary will be ~mployed in an executive capacity in the United States within one year of 
approval of the new office petition. 
III. PHYSICAL PREMISES 
As discussed, the Director also denied the petition based on a finding that the Petitioner did not 
establish that it has acquired sufficient physical premises to conduct.its business. See 8 C.F.R. § 
214.2(1)(3)(v)(A). In denying the petition, the Director pointed to the fact that the Petitioner had 
secured only 144 square feet of office space, noting that this did not appear sufficient for its 
proposed expansion during the first year. On appeal, the Petitioner submits an amendment to its 
lease, indicating that it has secured an additional 360 square feet of space at its current leased 
location. 
Upon review, we find that the Petitioner has submitted adequate evidence to establish that it has 
more likely than not acquired sufficient physical premises to launch its business. The evidence 
submitted on appeal supports the Petitioner's claim that it had room to- expand at its original 
location. As such, the Director's decision as to this issue will be withdrawn. 
IV. QUALIFYING RELATIONSHIP 
Further beyond the decision of the Director, the evidence of record does not establish that the 
Petitioner has a qualifying 
relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. 
one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 101(a)(l5)(L) of the Act; 8 C.F.R. § 214.2(1). 
On the L Classification Supplement to Form I-129, the Petitioner identified the Beneficiary's last 
foreign employer as and stated that the U.S. company is a branch office of 
the foreign entity. The Petitioner submitted a "Memorandum of Association" for the foreign entity; 
dated in 2010, indicating that it has 10,000 outstanding shares owned as follows: 
(4000 shares), the Beneficiary (3500 shares), (2000 shares), and (500 
shares). 
The Petitioner provided a corporate resolution dated October 1, 2015, indicating that its shares were 
distributed in the following percentages: the Beneficiary (55%), (10%), 
/ 
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Matter of M- T- USA, Inc. 
(10%), (10%), and (10%). The Petitioner further provided a 
share certificate number 1 01 reflecting that 100% of its shares are owned by the foreign entity. 
In the RFE response letter, the Petitioner stated that "[the Beneficiary], also owns 100% ofthe shares 
of the U.S. entity." Finally, in an additional support letter provided on appeal, the Petitioner further 
indicates that "[the foreign entity] owns 100% of the stock of [the Petitioner]." 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining 
whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. See Matter of Church Scientology Int 'l, 19 I&N Dec. 
593 (BIA 1988); see also Matter of Siemens Me d. Sys., Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the context of this visa petition, ownership refers to 
the direct or indirect legal right of possession of the assets of an entity with full power and authority 
to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology Int 'l, 19 I&N Dec. at 595. 
Here, the Petitioner has submitted conflicting statements and evidence with respect to its ownership. 
For instance, the Petitioner states in the Form I-129 that it is a branch office of the foreign entity, and 
elsewhere, that it is 100% owned by the foreign entity. However, a corporate resolution dated 
October 1, 2015, states that the company is majority owned by the Beneficiary with the remaining 
shares distributed among four other shareholders. The Petitioner further states elsewhere in a 
support letter that it is 100% owned by the Beneficiary. Therefore, these conflicting assertions and 
evidence leave question as to the Petitioner's actual ownership. The Petitioner has not resolved 
these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter 
ofHo, 19 I&N Dec. at 582, 591-92. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
it has a qualifying relationship with the foreign entity. 
V. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-T-USA, Inc., ID# 12402 (AAO Oct. 14, 2016) 
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