dismissed L-1A Case: Textiles

U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF L-E- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 26, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which intends to import and sell textiles, seeks to temporarily employ the Beneficiary 
as the chief executive officer (CEO) of its new office 1 under the L-lA nonimmigrant classification 
for intracompany transferees. Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 
8 U.S.C. § l 10l(a)(l5)(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 a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) it had secured sufficient physical premises to house the new office; 
(2) the Beneficiary had at least one year of employment abroad in a managerial or executive capacity 
in the three years preceding the filing of the petition; and (3) the new office would support a 
managerial or executive position within one year. 
On appeal, the Petitioner contends that the Beneficiary had been employed abroad in a managerial 
capacity for over one year at the time of filing. In addition, the Petitioner maintains that it submitted 
sufficient evidence to establish that its new office would support a managerial position within one year. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary in a managerial or executive 
capacity for one continuous year within three years preceding the beneficiary's application for 
admission into the United States. 8 C.F.R. § 214.2(1)(3)(v)(B). 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 or executive capacity. Id. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one 
year. 8 C.F.R. § 214.2(l)(l)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no 
more than one year within the date of approval of the petition to support an executive or managerial position. 
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Matter of L-E- Inc. 
secured sufficient physical premises to house its operation and disclose the proposed nature and 
scope of the entity, its organizational structure, its financial goals, and the size of the U.S. 
investment. See generally, 8 C.F.R. § 214.2(1)(3)(v). 
11. PHYSICAL PREMISES 
The first issue to be addressed is whether the Petitioner established that it secured sufficient physical 
premises to house its new office as of the date of filing. See 8 C.F.R. § 214.2(1)(3)(v)(A). 
On the Form 1-129, Petition for a Nonimmigrant Worker, the Petitioner stated that it intends to 
engage in the importing and wholesale of textiles, and indicated that the Beneficiary would work at 
in California. The Petitioner did not submit a lease agreement or 
other evidence that it had secured physical premises at this address, nor did it submit a business plan 
further explaining the intended nature of its business and the type of premises required to operate it. 
In response to a request for evidence (RFE), the Petitioner submitted a letter from the manager of the 
business complex who stated that the Petitioner occupies at the 
address listed above, which is classified as an "office" with no storage of items permitted. The 
Petitioner provided photographs depicting the exterior of the building and office, as well as interior 
photographs of a small office with one desk, and a separate room containing stacks of unopened 
packages and a water cooler. 
The Petitioner also submitted its business plan, which indicates its intent to establish "a unique 
clothing retail business," its plans for point-of-purchase advertising inside its retail store, and its 
intent to hire an employee who "will be responsible for the operations of the store." 
In the denial decision, the Director determined that the Petitioner had not shown that the office 
secured at the time of filing was suitable for the operation of the retail clothing business described in 
its business plan. The Petitioner has not addressed this issue on appeal. 
We agree with the Director's finding that the evidence was insufficient to demonstrate that the 
Petitioner satisfied the physical premises requirement. The office the Petitioner occupied is clearly 
not sufficient for the operation of the retail business mentioned in the business plan. Although the 
Petitioner initially indicated that it would engage in wholesale trade, the business plan does not 
support that statement and the Petitioner did not attempt to resolve this conflicting information 
regarding the nature of the proposed business. 
As the Petitioner has not addressed this issue in its brief or submitted evidence to overcome the 
Director ' s adverse finding, we will dismiss the appeal. 
III. BENEFICIARY'S EMPLOYMENT ABROAD 
The next issue to be addressed is whether the Petitioner established that the Beneficiary has been 
employed abroad in a managerial or executive capacity. Specifically, the Petitioner must provide 
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Matter of L-E- Inc. 
evidence that the Beneficiary has been employed abroad for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial capacity. See 8 C.F.R. 
§ 214.2(1)(3)(v)(B). 
A Period of Employment 
In order to meet the foreign employment requirement, the Petitioner must establish that the 
Beneficiary worked outside the United States for an entire year. Certain periods of time spent in the 
United States, including brief trips to the United States for business or pleasure, are not interruptive 
of the one year of continuous employment abroad, but such periods shall not be counted toward 
fulfillment of that requirement. See 8 C.F.R. § 214.2(1)(l)(ii)(A). 
The Petitioner states that its Indian parent company hired the Beneficiary in the position of "Senior 
Merchandiser" in May 2016, 2 and provided copies of her monthly pay statements for the period 
October 2016 through October 2017. 
The Petitioner filed the petition on November 20, 2017. At the time of filing, the Beneficiary was in 
B-2 nonimmigrant status and had last entered the United States on May 22, 2017. This six-month 
period of stay in the United States does not count towards her period of employment abroad, even if 
the foreign entity continued to pay her salary in India. The Petitioner must therefore show that she 
had a continuous year of employment abroad between May 2016 and May 22, 2017. 
The Petitioner submitted a copy of the Beneficiary's passport, which shows that she made entries to 
the United States during this time period. Department of Homeland Security arrival and departure 
records show that the Beneficiary was in the United States from April 1, 2016, until August 16, 
2016, and from November 5, 2016, until March 2, 2017. 
Therefore, although the Petitioner claimed that the Beneficiary had been working for the foreign 
entity for approximately 18 months at the time of filing, the Beneficiary spent only five months and 
one week outside the United States during this period, and is well short of meeting the one year 
employment abroad requirement. 
B. Employment Capacity 
Because the Beneficiary does not have the required one year of employment abroad, the Petitioner 
cannot establish that she has the required period of foreign employment in a managerial or executive 
capacity. However, we will briefly address the Petitioner's evidence related to her position and job 
duties. 
2 We note that the Director questioned the Beneficiary's employment abroad because she indicated on a Form DS-160, 
Nonimmigrant Visa Application, that she was a "homemaker." However, this visa application was submitted to a U.S. 
Consulate in India in October 2015 and pre-dates her claimed period of employment with the Petitioner's parent 
company. Therefore, the information provided in the visa application was not inconsistent with the Petitioner's claims. 
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Matter of L-E- Inc. 
At the time of filing, the Petitioner claimed that the Beneficiary worked as a senior merchandiser for 
the foreign entity "responsible for managing the store, and overseeing the operations of the entire 
facility and amenities offered." The Petitioner noted that she was responsible for training and 
overseeing employees to provide sufficient guest services. 
The Petitioner also provided a breakdown of her duties, indicating that she developed and executed 
merchandising strategies; prepared business plans; ensured that company policies and legal 
guidelines are communicated and followed; oversaw "financial performance, investments and other 
business ventures"; delegated responsibilities and supervised the work of "executives"; collaborated 
with buyers, suppliers and distributors; and analyzed "problematic situations and occurrences and 
provide[d] solutions to ensure company survival and growth." Most of these duties appeared to be 
inconsistent with the Petitioner's assertion that the Beneficiary was responsible for managing a retail 
store and providing training and supervision for its employees. 
Further, the Petitioner submitted an organizational chart for the foreign entity which depicted the 
Beneficiary in the position of "international sales" with no subordinates, and did not corroborate 
either of the above descriptions of her role with the foreign entity. Finally, we note that the 
organizational chart did not include the position of "senior merchandiser" although this is the job 
title that appeared on the Beneficiary's foreign pay stubs. The Petitioner must resolve these 
inconsistencies in the record with independent, objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&NDec. 582, 591-92 (BIA 1988). 
We agree with the Director's determination that the Petitioner did not provide detailed, consistent 
information regarding the Beneficiary's role or duties with the foreign entity in support of its claim 
that she was employed abroad in a managerial capacity. The information the Petitioner provided 
contained unexplained discrepancies that prevented an understanding of the true nature of her role 
and responsibilities. 
On appeal, the Petitioner has not resolved these issues; it simply refers to the Beneficiary's position 
as "Sr. Merchandiser/International Sales," and claims she managed an essential function for the 
foreign entity. The Petitioner's brief does not address the inconsistencies noted above with respect 
to the Beneficiary's actual position and duties, or attempt to reconcile its new function manager 
claim with its initial claim that she was a retail store manager or supervisor. Therefore, even if we 
determined that she had a full year of employment abroad with the foreign entity, the Petitioner did 
not meet its burden to establish that her employment was in a managerial capacity as claimed. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The final issue to be addressed is whether the Petitioner established that its new office would support 
a managerial position within one year. The Petitioner does not claim that the Beneficiary would be 
employed in an executive capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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Matter of L-E- Inc. 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
In the case of a new office petition, we review a beneficiary's proposed job duties as well 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. A 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 evidence must be considered in analyzing whether the proposed 
managerial position is plausible considering a petitioner's anticipated staffing levels and stage of 
development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
A Duties 
The Petitioner intends to "unique clothing retail business." The Petitioner described the 
Beneficiary's proposed "specific duties" as follows: 
• Supports operations and administration by advising and informing Board 
members and staff I 0% 
• Oversees design, marketing, promotion, delivery, and quality of products and 
services. I 0% 
• Effectively manages the corporation according to authorized policies and 
procedures that fully conform to current laws and regulations. 15% 
• Assures the organization and its mission, programs, products, and services are 
consistently presented in strong, positive image to relevant customers. 15% 
• Bear the overall responsibility of planning, directing, and coordinating the 
business operations. This entails the responsibility of formulating business 
policies and managing daily operations. 20% 
• Manage human resources with the authority to hire promote and terminate 
employment of all managing staff 5% 
• Providing guidance to subordinates, including setting performance standards and 
monitoring performance. I 0% 
• Developing constructive and cooperative working relationships with others, and 
maintaining them over time. 5% 
• Assessing the value, importance, or quality of things or people. 5% 
• Implementing staff policies. 5% 
This description is overly broad, as it focuses on the Beneficiary's authority over policy, procedures, 
strategies and overall "business operations," without explaining the specific tasks she would be 
Matter of L-E- Inc. 
performing on a day-to-day basis within the intended business to carry out these responsibilities by 
the end of the Petitioner's initial year of operations. Further, some of the duties are so ambiguous 
that that it is difficult to discern what specific activities they would entail. For example, we cannot 
determine how the Beneficiary would go about assessing the "value, importance or quality of . 
people" or how this duty relates to the business. 
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), aff'd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Assocs., Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Here, the Petitioner has 
not provided the necessary detail or an adequate explanation of the Beneficiary's proposed activities 
in the course of her daily routine. 
We acknowledge that the Beneficiary, as the Petitioner's senior employee, would have authority to 
establish plans and policies for the company, supervise any employees hired, and make decisions 
regarding the company's overall direction. However, the Petitioner must also establish that these types 
of responsibilities would primarily occupy the Beneficiary's time within one year, and to make this 
determination, we review the totality of the evidence. The Beneficiary's discretionary authority is only 
one of several factors we consider in determining whether the Petitioner would employ her in a 
qualifying capacity at the end of the one-year new office period. 
The Director's decision reflects that he properly considered the evidence as a whole to determine 
whether the Petitioner met its burden to show that it would have a reasonable need for the 
Beneficiary to primarily perform the claimed managerial duties within one year. For the additional 
reasons discussed below, the Petitioner has not met this burden. 
B. Business Plan and Projected Staffing 
In order to qualify for L-lA nonimmigrant classification during the first year of operations, the 
regulations require a petitioner to disclose the proposed nature of the business and the size of the 
U.S. investment, and 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. § 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's initial submission included a broad description of the Beneficiary's proposed duties, 
but did not include the evidence needed to satisfy the regulatory requirement at 8 C.F.R. 
§ 214.2(1)(3)(v)(C). In the RFE, the Director requested a business plan including a timeline for each 
proposed action during the first year of operations; the Petitioner's proposed organizational chart, a 
description of the positions to be filled during the first year, and evidence demonstrating the size of 
the foreign entity's investment in the United States and the Petitioner's current financial status. 
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Matter of L-E- Inc. 
In response, the Petitioner submitted a five-page business plan indicating its intent to operate a retail 
business selling clothing for men, women, and children. The Petitioner did not explain why it 
previously stated on the Form 1-129 that it would operate an import and wholesale business. 
With respect to staffing, the business plan indicates that "[w]ithin the first year, two full-time 
employees will be hired. One person will be responsible for the operations of the store and the second 
person will be responsible for customer service and inventory control." The Petitioner also identified 
its parent company as its main supplier and noted that it would work with some local wholesalers. The 
business plan does not include any financial information, such as the company's anticipated start-up 
costs and operating expenses, the amount of the investment, its expected revenues, or the amount of 
rent, salaries and other routine business expenses to be paid on a monthly basis. 
The Petitioner provided a letter from indicating that the Petitioner opened an 
account in December 2017 (after the filing of the petition) and had a current balance of $525.03 as of 
May 3, 2018. The Petitioner also provided bank statements for the months of February, March, and 
April 2018. These statements show a total of $39,000 in incoming funds from the Petitioner's 
foreign parent company, one outgoing wire transfer that appears to coincide with a purchase invoice 
in the record, and various debit and ATM transactions, all of which took place in and 
Nevada despite the company's California location. 
In the denial decision, the Director emphasized that the Petitioner made conflicting statements about 
the type of business it intends to operate and provided an insufficient business plan that lacked 
information regarding the business's intended structure, scope, staffing plans, start-up costs, and 
financial projections. Given these deficiencies, the Director found inadequate support for the 
Petitioner's claim that it would hire two employees as stated, or that such employees, even if hired, 
would relieve the Beneficiary from significant involvement in the day-to-day operations of the 
business within one year. 
The Director also addressed the size of the U.S. investment, noting that the business plan did not 
indicate the value of the investment made to set up the business. The Director concluded that without 
consistent information regarding the nature of the business, the size of the investment, and the 
company's planned staffing and structure, the Petitioner had not met its burden to establish that it 
would employ the Beneficiary in a managerial position within one year. 
On appeal, in response to the Director's finding that the Petitioner did not adequately describe the 
scope of the entity, its organizational structure and its financial goals, the Petitioner reiterates that it 
intends to establish "a unique clothing retail business in Southern California," and re-submits the 
business plan that was already reviewed by the Director and found to be insufficient. We agree with 
the Director ' s finding that the extremely broad five-page business plan does not contain sufficient 
relevant information to satisfy the Petitioner ' s burden of proof. The Director adequately explained 
why the submitted business plan was deficient and the Petitioner has not addressed these deficiencies 
on appeal. Further, as noted above, the Petitioner states that it will operate a retail store, but the 
business plan and other evidence in the record indicate that the company will operate from an office. 
Matter of L-E- Inc. 
With respect to the size of the United States investment and the financial ability to commence doing 
business, counsel states: 
All business expenses incurred by the Petitioner will be paid by Foreign Entity. 
Foreign Entity is regularly transferring funds to the Petitioner's bank account to cover 
all business expenses, including employee's salaries. The Foreign entity will 
continue to transfer more funds once Beneficiary begins working for Petitioner. The 
Foreign Entity has enough funds to cover the Beneficiary's annual salary and the 
salaries of her direct and indirect subordinates. 
However, neither the Petitioner's business plan nor its own statements mention that the company 
will receive full financial support from the foreign entity. Counsel's statement that the foreign 
entity's investment is sufficient and that it has sufficient funds to support the new office does not 
satisfy the Petitioner's burden. Assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980)). Counsel's statements must be substantiated in the record with independent 
evidence, which may include affidavits and declarations. 
We acknowledge that the Petitioner received $39,000 from the foreign entity in the first half of 2018, 
but this evidence alone is insufficient to show the intended size of the U.S. investment or the 
Petitioner's ability to commence business operations as a retail store. The record does not identify 
the total amount of investment needed, the amount the foreign entity intends to provide, or how the 
money would be allocated. Again, the business plan contains no breakdown of start-up costs, 
revenues, expenses or any other detailed financial information for the first year of operations. 
After reviewing the totality of the evidence, we find that the Petitioner has not adequately described 
what the Beneficiary will be doing during the initial year of operations or beyond, nor has it 
sufficiently or consistently explained the intended nature and scope of the Petitioner's activities or its 
financial objectives. Accordingly, the Petitioner did not demonstrate that the Beneficiary would 
primarily engage in managerial duties, or that the new office would support a managerial position, 
within one year of approval of the petition. For this additional reason, the appeal will be dismissed. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofL-E-Inc., ID# 2861587 (AAO Mar. 26, 2019) 
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