dismissed L-1A Case: Textiles

puBuC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 07 0 10 5 1002 Office: VERMONT SERVICE CENTER Date: FEB 0 8 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF 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. 
@a- 
< 
Robe . Wiemann, Chief 
Administrative Appeals Office 
EAC 07 010 51002 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant 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 in the position of sales and 
marketing manager to open a new office in the United States 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. 8 
1101(a)(15)(L). The petitioner, a limited liability company organized under the laws of the State of Georgia, 
is allegedly a "textile importlexport agency." 
The director denied the petition concluding that the petitioner failed to establish (1) that sufficient physical 
premises to house the new office have been secured; or (2) that the beneficiary was employed abroad in a 
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 asserts that the home of the 
beneficiary will sufficiently house the new office. The petitioner also asserts that the beneficiary was 
employed in a managerial and executive capacity abroad. In support, the petitioner submits additional 
evidence, including a description of a typical workweek of the beneficiary abroad. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies hindher to perform the intended 
EAC 07 010 51002 
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. 
In addition, the regulation at 8 C.F.R. 5 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, 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 (I)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial 
ability of the foreign entity to remunerate the beneficiary and 
to commence doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The first issue in this matter is whether the petitioner has established that it has secured sufficient physical 
premises to house the new office. 8 C.F.R. 5 214.2(1)(3)(v)(A). 
The petitioning organization indicates that it plans to house the "new office" in the home of the beneficiary 
and his spouse. The foreign entity described these physical premises in the letter dated October 2, 2006 as 
follows: 
The business office of [the petitioner] will be established at Macon 
GA 3121 1. The office will be set up in accordance with the Home Occupation Permit 
authorised by the Jones County [Georgia] Planning and Zoning Department. These premises 
are adequate for the short and medium term objectives of [the petitioner] and in accordance 
with the terms and conditions of the Home Occupation Permit there is scope for 
accommodating additional employees as the business develops. 
EAC 07 010 51002 
Page 4 
The petitioner submitt 
 in which the beneficiary agrees to lease space 
in his home located at 
 The "Contract of Intent" does not specifically 
describe the space to be leased in 
 nor does it specify a commencement date for 
occupancy by the of visa authorisation." . 
The petitioner also submitted a document titled "Business Plan." The plan generally describes the petitioning 
operation as a supplier of dance related fabrics and accessories. While stressing that the petitioner plans to 
serve customers throughout the United States and projecting $100,000.00 in first-year product purchase costs, 
the plan does not address the importation, storage, and distribution of its products in the United States. Also, 
while the petitioner indicates that it plans to hire one additional employee by the beginning of its second year 
in operation, the petitioner does not address whether this additional employee will work at the office in the 
beneficiary's home. 
On October 25, 2006, the director requested additional evidence. The director requested, inter alia, evidence 
that the petitioner's office will be set up in accordance with a home occupation permit, evidence that-~ 
is zoned for commercial use, and photographs of the interior and exterior of the physical 
premises. 
In res onse, the petitioner submitted a home occupation permit dated October 31, 2006 for- 
or 326 square feet for an office. The petitioner also submitted photographs of the home. However, the 
petitioner does not indicate which of these photographs, if any, depict the 326 square feet to be occupied by 
the petitioner. 
On December 21, 2006, the director denied the petition. The director concluded that the petitioner failed to 
establish that sufficient physical premises to house the new office have been secured. 
On appeal, the petitioner asserts that the home office described in the record will be sufficient to house the 
new office. The petitioner asserts that it will not need public visibility until "the company is established and 
[is] more familiar with the US market." The petitioner further asserts that, while it will likely never need a 
"showroom" in the United States, it may need a commercial property for "product distnbution" in the future. 
Upon review, the petitioner's assertions are not persuasive. 
In this matter, the petitioner has failed to establish that it has secured sufficient physical premises to house the 
new office. First, the record does not establish that, at the time the petition was filed, the petitioner had either 
a valid lease agreement with the beneficiary or official permission to conduct business in the beneficiary's 
home at As indicated above, the "Contract of Intent" makes the commencement of the 
petitioner's occupancy, and the corresponding rental obligation, contingent upon the approval of the instant 
petition. Therefore, as of the day the petition was filed, the petitioner had not secured a physical premises. .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. 197 1). Furthermore, the "home 
occupation permit" purporting to authorize the conduct of business at s dated after the 
EAC 07 010 51002 
Page 5 
filing of the instant petition. Therefore, as of the day the petition was filed, the petitioner was not permitted to 
conduct business in the beneficiary's home. Again, the petitioner must establish eligibility at the time of filing 
the nonirnmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248.' 
Second, the petitioner failed to establish that the space supposedly secured will be sufficient to house the new 
office. The "Contract of Intent" and the photographs fail to specifically identify the location, dimensions, or 
size of the space to be occupied by the petitioner. Absent a specific description of the leased premises, it is 
impossible for Citizenship and Immigration Services (CIS) to discern whether the premises will be sufficient 
to house the new office. Furthermore, the home occupation ordinance of Jones County, Georgia, will not 
permit the enterprise to grow to the point that the beneficiary will perform primarily qualifying duties after 
one year in operation. For example, section 95.12 prohibits anyone other than the "members of the family 
residing on the premises" to operate the business. Given this restriction, it is unclear how the petitioner's 
occupancy of the home could lead to the beneficiary being relieved of the need to perform non-qualifying 
duties after one year. Therefore, the premises secured do not appear to be sufficient. Finally, the petitioner 
has not established how 326 square feet of the beneficiary's home will accommodate the storage and 
distribution of goods or the employment of additional workers. 
 Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure CraJ of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Accordingly, the petitioner has failed to establish that it has secured sufficient physical premises to house the 
new office, and the petition may not be approved for this reason. 
The second issue in the present matter is whether the petitioner established that the beneficiary was employed 
abroad in an executive or managerial capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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 
'1t is further noted that, even if the "home occupation permit" dated October 3 1, 2006 was relevant to these 
proceedings, it is doubtful that this permit could be used to allow a business which is not owned by the permit 
applicant to operate out of the beneficiary's home. In this matter, the petitioner asserts that it is 100% owned 
by a third party in the United Kingdom. The beneficiary is merely an employee of the petitioner tasked with 
opening a new office in the United States. The petitioner asserts that it intends to rent space in the 
beneficiary's residence and operate out of that residence under a "home occupation permit" secured by the 
beneficiary. This appears inconsistent with both the letter and the spirit of the Jones County, Georgia, 
ordinance governing "home occupations." See Jones County Zoning Ordin. (Georgia) 5 95.1. 
EAC 07 010 51002 
Page 6 
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 
hre and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 
 1 101 (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 does not clarify in the initial petition whether the beneficiary primarily performed managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act, and states on appeal that the beneficiary was a manager and an executive. A petitioner may not claim 
that a beneficiary was employed as a hybrid "executive/manager" and rely on partial sections of the two 
statutory definitions. If the petitioner is indeed representing the beneficiary as both an executive and a 
manager, it must establish that the beneficiary meets each of the four criteria set forth in the statutory 
definition for executive and the statutory definition for manager. 
The foreign entity asserts in the letter dated October 2, 2006 that the beneficiary "has been working with [the 
foreign employer] as a Sales and Marketing Manager since May 2005, managing a team of five professionals 
that include a sales executive, a marketing assistant, a sales assistant and two administrative assistants." The 
petitioner also submitted an organizational chart which indicates that the beneficiary supervised a "sales 
executive" who, in turn, directly supervised the four subordinate workers identified above. 
On October 25, 2006, the director requested additional evidence. The director requested, inter alia, a detailed 
description of the beneficiary's job duties abroad, including a description of a typical workweek with a 
EAC 07 010 51002 
Page 7 
breakdown of the number of hours devoted to each duty. The director also requested complete position 
descriptions for all of the foreign employer's employees. 
In response, the foreign employer described the beneficiary's duties abroad in a letter dated November 9,2006 
as follows: 
Managing the sales and marketing teams in accordance with the philosophy and 
values of the business so as to meet the strategic corporate objectives. 
Development and implementation of the business strategy that will realize a growth 
in the UK market in particular. 
m 
 Appointing and training sales and administrative staff. 
Ensuring that the team delivers services meeting all the requirements of the client 
contracts, within agreed budgets, and supporting and securing new business while 
continuously improving customer service and corporate image. 
Developing close professional relationships with key clients. 
Contributing to, and participating in, the formation of corporate vision and strategy. 
Defining product and service solutions that meet clients' needs. 
Working to ensure organizational understanding of product strategy and needs, 
including overseeing of the development of tailor-made discount schemes and other 
offers for clients. 
Identifying key business opportunities that align with the company's policies. 
Ensuring that the sales and marketing team's time and resources are spent on 
initiatives with highest probability of significant benefit for the company. 
Identifying appropriate exhibitions, trade shows and other promotional events to 
attend in the U.K. and to managing [sic] all aspects of running those events, including 
all marketing and budgetary details. 
Attending and managing such exhibitions, with specific responsibility for promoting 
the reputation of [the foreign employer.] 
Making policy and organizational suggestions to the General Manager for any 
improvements designed to enhance customer service. 
EAC 07 010 51002 
Page 8 
The petitioner also describes the beneficiary as being responsible for planning and managing the foreign 
employer's preparedness during peak periods of customer demand and as managing a "marketing strategy" 
team. Finally, the petitioner asserts that the beneficiary "has used his contacts to generate business" and 
describes his typical workweek as follows: 
In a typical work week, [the beneficiary] spends most of his time in managing the sales and 
marketing activities of the company. He manages a team of five professionals that include a 
sales executive, a marketing assistant, a sales assistant and two administrative assistants. 
Approximate percentages of time spent on each of his duties during a typical work week are 
listed below: 
Finally, the petitioner submitted job descriptions for the beneficiary's claimed subordinates. The subordinate 
supervisor, the "sales executive," is described as follows: 
Managerial Functions & Responsibilities 
Marketing & Sales Management 
Development of Marketing Collateral 
Development and implementation of the business strategy 
Training, Management and Motivation of staff 
Sales Closure Activities 
Budgeting and resource planning 
Identify trade shows & exhibitions and manage marketing functions 
Strategic Alliances/New Business Opportunities 
Evolving Strategy & identifying new business opportunities 
Forging Business Alliances/Partnerships 
To assist the [beneficiary] to meet the strategic corporate objectives of [the foreign 
employer]. 
Percent 
Time Spent 
75.0% 
05 .O% 
20.0% 
10.0% 
10.0% 
10.0% 
20.0% 
25.0% 
15.0% 
10.0% 
To assist the [beneficiary] to appoint and train sales and administrative staff. 
To proactively network with clients and potential customers to publicise the company 
and its products. 
To help define product and service solutions that meet clients' needs. 
To ensure the correct implementation of the Company's discount policy. 
To assist the [beneficiary] in ensuring that the sales and marketing team's time and 
resources are spent on initiatives with highest probability of significant benefit for the 
company. 
EAC 07 010 51002 
Page 9 
When required, to attend in a sales capacity, any event at which the company is 
exhibiting, at all times helping to promote the reputation of [the foreign employer]. 
To make organizational suggestions to the [beneficiary] for any improvements 
designed to enhance customer service. 
= 
 To undertake any other duties which reasonably fall within the purview of the post, 
and which may be allocated after consultation with the postholder. 
The other subordinate workers are described as performing the tasks necessary to produce a product or to 
provide a service, i.k, sales and marketing tasks. 
On December 21, 2006, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was employed abroad in aemanagerial or executive capacity. 
On appeal, the petitioner asserts that the beneficiary was employed in a managerial and executive capacity 
abroad. In support, the petitioner submits additional evidence, including a description of a typical workweek 
of the beneficiary abroad. 
Upon review, the petitioner's assertions are not persuasive. 
As a threshold issue, the petitioner's attempt to supplement the record on appeal with a description of a typical 
workweek of the beneficiary abroad was inappropriate and will not be considered by the AAO. As indicated 
above, the director specifically requested this description in the Request for Evidence, and the petitioner 
chose not to submit it for the record. The petitioner now submits this description for the first time on appeal. 
However, the AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 
(BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on 
the record of proceeding before the director. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties performed by the beneficiary and indicate whether such duties were 
either in an executive or managerial capacity. Id. As explained above, the petitioner may not claim that the 
beneficiary was employed as a hybrid "executive/manager" and rely on partial sections of the two statutory 
definitions. 
The petitioner's description of the beneficiary's job duties failed to establish that the beneficiary acted in a 
"managerial'l or "executive" capacity. In support of its petition, the petitioner has provided a vague and 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary did on a day- 
to-day basis other than perform sales and marketing tasks and serve as a first-line supervisor of non- 
professional sales and marketing employees. For example, the petitioner states that the beneficiary developed 
and implemented the foreign employer's "business strategy," contributed to "the formation of corporate vision 
and strategy," and forged business alliances and partnerships. However, the petitioner does not specifically 
EAC 07 010 51002 
Page 10 
define these visions and strategies and does not explain what, exactly, the beneficiary did to forge business 
alliances and partnerships. The fact that the petitioning organization gave the beneficiary a managerial or 
executive title and has prepared a vague job description which includes inflated duties does not establish that 
the beneficiary actually performed managerial or executive duties. Specifics are clearly an important 
indication of whether a beneficiary's duties were primarily executive or managerial in nature; otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees. As explained above, the petitioner asserts that the 
beneficiary supervised a "sales executive" who, in turn, supervised a marketing assistant, a sales assistant, and 
two administrative assistants. However, the petitioner has not established that the "sales executive" was truly 
a supervisory, managerial, or professional employee. To the contrary, the job description indicates that this 
employee primarily performed sales and marketing tasks alongside the other marketing and sales workers. 
An employee will not be considered to be a supervisor simply because of a job title or because he or she 
supervises daily work activities and assignments. Rather, the employee must be shown to possess some 
significant degree of control or authority over the employment of subordinates. See generally Browne v. 
Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy Thomas, 
Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11, 2007)). Artificial tiers of subordinate employees and 
inflated job titles are not probative and will not establish that an organization is sufficiently complex to 
support an executive or managerial position. Therefore, it appears that the beneficiary was a first-line 
supervisor of five workers rather than a manager of a subordinate tier of one or more supervisors. A 
managerial or executive employee must have authority over day-to-day operations beyond the level normally 
vested in a first-line supervisor. See 101(a)(44) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. 593,604 (Comm. 1988). Finally, as the petitioner has failed to describe the skills 
necessary to perform the duties of the subordinate positions, the petitioner has not established that the 
beneficiary managed professional employees.2 
Overall, the record indicates that the beneficiary primarily performed non-qualifying administrative or 
operational tasks which do not rise to the level of being managerial or executive in nature. The beneficiary is 
described as primarily performing marketing related tasks or serving as a first-line supervisor of non- 
2 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10 1(a)(32) of the Act, 8 U.S.C. 1 101 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D.' 1966). 
EAC 07 010 51002 
Page 11 
professional marketing and sales workers, e.g., closing sales; budgeting; identifying trade shows and 
exhibitions; identifying business opportunities; implementing business strategies; and forging business 
partnerships. However, sales and marketing tasks and working as a first-line supervisor of a non-professional 
staff are not qualifying managerial or executive duties. An employee who "primarily" performed 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 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. Therefore, the petitioner has not established that the beneficiary was 
employed primarily in a managerial capacity.3 
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. 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. 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 employees for the beneficiary to 
direct, and the 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 the owner or sole 
managerial employee. The 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, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
3 
The petitioner also has not established that the beneficiary managed an essential fbnction of the organization. 
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 1 (a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute 
or regulation. If a petitioner claims that the beneficiary is managing an essential function, the petitioner must 
furnish a written job offer that clearly describes the duties to be performed 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. tj 
2 14.2(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 tasks related to the function. In this matter, the 
petitioner has not provided evidence that the beneficiary managed an essential function. The petitioner's 
vague job description fails to document what proportion of the beneficiary's duties were managerial functions, 
if any, and what proportion were non-managerial. All that is presented is the petitioner's claim that the 
beneficiary possibly spends up to 20% of his time managing marketing functions. However, as explained 
above, the record establishes that the beneficiary primarily performed the non-qualifying operational or 
administrative tasks related to the "function" andlor served as a first-line supervisor. Absent a clear and 
credible breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine 
what proportion of his duties were managerial, nor can it deduce whether the beneficiary was primarily 
performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). 
EAC 07 010 51002 
Page 12 
establish that the beneficiary acted primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce what the beneficiary did on a day-to-day basis. 
Moreover, as explained above, it appears that the beneficiary primarily performed the tasks necessary to 
produce a product or to provide a service andlor served as first-line supervisor. Finally, as the beneficiary 
reported to a both a director and general manager, it appears that any realistic authority to direct the 
organization was vested in these individuals and not in the beneficiary. Therefore, the petitioner has not 
established that the beneficiary was employed primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary was employed abroad in an executive or 
managerial capacity, and the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner failed to establish that the intended United States operation, 
within one year of the approval of the petition, will support an executive or managerial position. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
The petitioner in this matter has failed to establish that the United States operation 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 qualifling duties. The petitioner's description of 
its staffing after the first year in operation is not persuasive in establishing that the beneficiary will be 
performing qualifying duties by that time. In the business plan, the petitioner indicates that, initially, it plans 
to employ the beneficiary and his spouse and, by the beginning of its second year in operation, it plans to 
employ one additional "sales assistant." In view of this hiring projection, it is not likely that the United States 
operation will have an organizational complexity requiring the employment of a manager or an executive. To 
the contrary, it is more likely than not that both the beneficiary and his staff will primarily perform non- 
qualifying sales, marketing, or administrative tasks after the petitioner's first year in operation. Federal courts 
have generally agreed that CIS "may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager." Family, Inc. v. U.S. Citizenship and 
Immigration Services, 469 F.3d 13 13, 13 16 (9" Cir. 2006) (citing with approval Republic of Transkei v. INS, 
923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 41,42 (2d Cir. 1990) (per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003). 
Moreover, the petitioner has not established that an investment has been made in the United States operation 
as required by 8 C.F.R. $j 214.2(1)(3)(v)(C)(2). While the foreign employer states in the letter dated October 
EAC 07 010 51002 
Page 13 
2, 2006 that the "start-up costs of the U.S. entity are estimated to be $20,000 which will be financed by the 
affiliate company in the U.K.," the record is devoid of evidence that this investment was ever made. Once 
again, going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Treasure Craft of Califarnia, 14 I&N Dec. 190. The 
petitioner must establish eligibility at the time of filing the nonirnmigrant visa petition. A visa petition may 
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Michelin Tire Corp., 17 I&N Dec. 248. The non-existence or other unavailability of required 
evidence creates a presumption of ineligibility. 8 C.F.R. tj 103.2(b)(2)(i). 
Accordingly, the petitioner failed to establish that the intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial position, and the petition may not be approved 
for this additional reason. 
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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
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. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.