dismissed L-1A Case: Travel Agency

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
POBLtCCOpy 
U.S. Department of Homeland Security 
U.S. Citizenship and inunigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: MAY! 0 2011 Office: VERMONT SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.c. § I 101 (a)(l5)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. 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 extend the beneficiary's employment as a 
nonimmigrant intracompany transferee pursuant to section J OJ(a)( IS)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.c. § IIOI(a)(IS)(L). The petitioner, a Texas limited liability company, operates a travel 
agency and claims to be a subsidiary of Aeromundo of Chihuahua, S.A. de C.V., located in Mexico. The 
beneficiary was previously granted L-J A classification for a period of one year in order to open a new office 
in the United States. The petitioner now seeks to extend the beneficiary's status for two additional years so 
that she may continue to serve in the position of Executive Director. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel for the petitioner asserts that the director erred by 
assuming that the petitioner seeks to classify the beneficiary as a manager, noting that the petitioner clearly 
stated that she will be employed in an executive capacity. Counsel contends that the beneficiary's duties as 
described in the record fall squarely within the definition of "executive capacity," and emphasizes that there is 
no statutory requirement that an executive supervise a certain number or type of subordinate employees, 
particularly when the business itself does not require a multi-layered management structure. Finally, counsel 
notes that the petitioner experienced various unforeseen difficulties during the first year of operations which 
limited its normal growth. Counsel requests that the AAO consider the instant petition as a "de facto 'new 
office' petition" in light of these limiting factors. 
I. The Law 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(lS)(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. § 214.2(l)(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) ofthis section. 
Page 3 
(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 himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifYing organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(8) Evidence that the United States entity has been doing business as defined 10 
paragraph (1)( I )(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
II. The Issue on Appeal 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed in a primarily managerial or executive capacity under the extended petition. Counsel and the 
petitioner assert that the beneficiary will be employed in an executive capacity, and contends that the director 
erred by applying the statutory criteria applicable to managerial employees. Accordingly, the AAO will limit 
its discussion to whether the petitioner established that the beneficiary will be employed in the United States 
in a primarily executive capacity. 
Section IOI(a)(44)(8) of the Act, 8 U.s.c. § 1101(a)(44)(8), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
Page 4 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on February 13, 2009. The 
petitioner indicated that it operates a travel agency with "approximately 5" employees. In support of the 
petition, the petitioner submitted the following statement of duties for the beneficiary: 
The Executive Director will direct and manage all components and functions of the United 
States' subsidiary of [the foreign entity]. The Executive Director will be responsible for 
providing the overall direction of the operation of the United States subsidiary of [the foreign 
entity]. Either personally or through subordinates, the Executive Director will be performing 
the following duties. 
I. 5% 
2. 10% 
3. 5% 
4. 5% 
5. 15% 
6. 10% 
7. 10% 
8. 25% 
9. 10% 
10. 5% 
Developing an overall strategy for starting and growing the United States' 
subsidiary of [the foreign entity]. 
Establishing operational targets, setting up guidelines for dealing with 
providers and customers, and creating operating procedures for the United 
States subsidiary. 
Reviewing financial data, reports, statements and sales data to establish 
whether the organization meets its operational targets. 
Establishing and maintaining an operating budget for the United States' 
subsidiary of [the foreign entity]. 
Managing relationships with [the company's] United States providers, which 
include air lines, cruise lines, hotels, rent a car agencies and tour operators. 
Developing and overseeing commercial agreements with [the company's] 
providers located in the United States. 
Generating and sustaining clientele for the United States subsidiary. 
Directing the operations of the United States subsidiary. 
Training and supervising employees of the United States subsidiary. 
Installing, operating and training employees of [the company] on technical 
software, which will include, but is not limited to the reservation system 
software Worldspan. 
In a letter dated February 6, 2009, an officer of the foreign entity staled that the beneficiary performs the 
following duties: 
• Directs and coordinates [the petitioner's] financial and budget activities in order to fund 
operation and increase efficiency. 
• Develop and oversee commercial agreements with [the petitioner] and service providers 
such as airlines, travel agencies, hotels, rental car companies and other organizations. 
• Negotiate and approve contracts between [the petitioner] and service providers and 
government agencies. 
• Prepare budgets for programmed trips to further reduce the costs to large organizations 
and increase quality of service. 
• Coordinate functions among departments and delegate responsibilities amongst different 
departments. 
• Detennine and guide course of action in operations with airlines, hotels, travel operators, 
and service providers. 
• Establish policy on use of Worldspan Manual to increase productivity and quality of 
services within different segments of the agency .... 
• Fonnulate policy as it pertains to employees, such as employee dress, pay rates, hours of 
operation, training, and customer service. 
• Make recommendations to the Board of Directors regarding evaluations of the travel 
market. 
• Establish operational targets for commlSSlOns with airlines, hotels, and bookings on 
Worldspan. 
• Establish sales goals and policy of [the petitioner] in tenns of sales, marketing, future 
markets, and the agency's position in the current market. 
• Establish policy on development of promotional material such as travel programs, flyers, 
and other marketing material. 
• Responsible for overall administration of [the company] including: revIewIng and 
evaluating the results of the agency's activities, ensuring continuing contractual 
compliance and allocating resources for greater effectiveness and efficiency. 
• Remain knowledgeable of laws, regulations and policies of airlines, hotels, tour 
operators, trains, cruises, and other service providers in the travel industry. 
• Maintain full compliance with lATA: International Air Transport Association. 
• Develop and maintain contractual obligations with banks, guarantee companies, 
insurance and other third party agencies .... 
• Establish core procedure guidelines for Sales, Corporate, Group, and Shuttle 
Departments. 
• Establish core requirements for Tourismap [sic]. 
• Keep employee records and hire and discharge employees as necessary. 
• Develop skill and knowledge requirements for department heads. 
• Negotiate employee contracts. 
• Attend meetings with airlines, associations of travel agencies, hotels and other 
government agencies. 
• Implement corrective action plans to solve corporate and departmental problems in the 
agency. 
Page 6 
With respect to the staffing of the u.s. entity, the foreign entity's officer stated: 
Currently, [the petitioner] is minimally staffed with three employees. This staff is currently 
paid on a commission basis. This is currently necessary to promote the sales essential to 
continue growing in this difficult economy. The staff, as it exists, is responsible for attending 
walk in clients and to support all telephone and email inquiries for all departments and 
Turismap. The staff must converse with customers to determine destination, mode of 
transportation, travel dates, financial considerations, and accommodations required. Staff 
must handle all client reservations including flight, hotel and rental car requirements. Staff 
must also collect payment for transportation and accommodations from clients. The staff 
must also coordinate all group and corporate travel. 
Although the letter from the foreign entity indicated that the petitioner has three employees, the petitioner 
submitted of two "contracts of employment." The petitioner submitted a contract made in June 
2008 with for the position of "Outside sales Department Turismap." According to the 
terms of the contract agreed to work ten hours per week in exchange for sales commissions and 
monthly expense reimbursement. 
The second contract was between the petitioner and Jose Fernandez and was signed on January 5, 2009. _ 
agreed to work in the position of "Travel Sales" for wages of $7.00 per office hour plus sales 
commissions. The petitioner did not provide a complete copy of the contract and the portion submitted does 
not indicate how many hours per week he is expected to work. 
The petitioner did not identify the third employee or submit evidence of wages or commissions paid to any 
employees. The petitioner provided evidence that it utilizes the services of a bookkeeping service for monthly 
financial reports. The AAO notes that the beneficiary'S first name appears as "Sales Rep" on many of the 
invoices submitted as evidence of the petitioner's business activities during the first year of operations. 
The director issued a request for additional evidence (RFE) on February 19,2009, in which he advised the 
petitioner that the initial evidence was insufficient to establish that the U.S. office has grown to the extent that 
it currently supports a managerial or executive position. The director requested that the petitioner submit the 
following additional evidence: (1) a comprehensive description of the beneficiary'S duties and an explanation 
as to how such duties qualify as either managerial or executive in nature; (2) the job titles and job duties of all 
subordinate employees managed by the beneficiary; and (3) the amount of time the beneficiary allocates to 
managerial versus non-managerial duties. 
I n response to the request for evidence, the petItIOner submitted three additional descriptions of the 
beneficiary's duties. In a letter dated April I, 2009, counsel for the petitioner stated that the beneficiary is 
responsible for the following "executive capacity" duties: 
• Developing the overall business strategy 
• Establishing the company's operational targets 
Page 7 
• The review of financial date [sic], reports, statements, and sales to determine whether the 
organization meets its operational targets. 
• The maintaining of an operational budget. 
• The business relationship management with [the petitioner's] United States suppliers. 
• The negotiation, execution and fulfillment of commercial agreements. 
• Other executive capacity duties listed in the employment letter. 
Counsel noted that such duties "are analogous to the U.S. Department of Labor's (DOL) O'Net duty 
description under 11-1011.00 - Chief Executive, which includes the reported title of Executive Director." 
The petitioner submitted an additional list of 24 duties, which is similar to the lengthy list of duties provided 
by the foreign entity the time of filing and will not be repeated here. Finally, the petitioner submitted a chart 
labeled "Time Used in Executive Functions," accompanied by a brief description of how much time the 
beneficiary devotes to specific tasks on a weekly basis. The information provided is as follows: 
• 2 hours - Collect financial datas [sic] 
• 6 hours - Prepare budgets for programed [sic] trips 
• 3 hours - Coordinate functions among departments 
• 5 hours - Esthablish [sic] operational target 
• 3 hours - Attend meeting with staffs [sic] 
• 4 hours - Negociate [sic] or approve contracts 
• 3 hours - Evaluate staff progress 
• 3 hours - Write business correspondence 
• 6 hours - Direct and coordinate activities of Travel Agency 
• 5 hours - Work with Travel Providers or commercial vendors 
• 3 hours - Non-executive funtions [sic]. 
Counsel stated that the beneficiary's duties are "primarily related to policy and corporate procedures" while 
her "day-to-day duties are limited to management and training of staff." 
In response to the director's request for information pertaining to the beneficiary's subordinate staff, counsel 
emphasized that the statutory definition of "executive capacity" at section 10 I(a)( 44)(B) of the Act does not 
require an executive to supervise the work of supervisory, professional or managerial personnel. Counsel 
emphasized that, and difficulties limiti~s start-up operations, the beneficiary 
"has managed to and _, Outside Sales and Turismap." 
The petitioner submitted an organizational chart depicting the U.S. company's anticipated "peak season" 
staffing levels. The chart lists the beneficiary as executive director, supervising an office manager who is "to 
be hired." The chart indicates that the office manager will supervise the group department, the sales 
department, the corporate department, and the Turismap Development department. The chart identifies _ 
_ in the Sales Department and in the Turismap department. The other departments 
are unstaffed. According to the chart, the petitioner also intends to hire a shuttle driver and 
temporary/seasonal sales representatives. 
Page 8 
The petitioner submitted a list of sales conducted in 2009 through March 10, along with copies of invoices for 
these transactions. Out of 18 sales transactions, the beneficiary's name is listed as "sales rep" on 12 invoices. 
Some invoices identifY as the sales representative, some identifY '_," and one identifies 
_" _ name does not appear on any of the invoices submitted. Most of the Turismap sales 
appear to have been transacted by the beneficiary. 
The petitioner's IRS Form 1065, U.S. Return of Partnership Income, for 2008 indicates that the company paid 
salaries and wages of $28,666, but the record does not contain copies of IRS Forms W -2 or other evidence of 
wages paid to employees, and it is not clear who received this money, particularly in light of claims that the 
petitioner's employees currently work on commission. 
The director denied the petition on April 14, 2009, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
The director determined that the position descriptions provided demonstrate that the beneficiary "functions 
and performs virtually all the required duties and functions to run a travel agency." The director found that 
the job description, considered with the small number of employees suggests that the beneficiary would not 
be relieved from performing the non-managerial or non-executive operations involved in producing a product 
or providing a service. The director further noted that the petitioner failed to explain the discrepancy between 
the number of employees claimed on the petition and the current number of employees. Finally, the director 
acknowledged the petitioner's proposed organizational chart, but emphasized that the petitioner is no longer a 
"new office" and, as such, future hiring plans could not be considered. 
On appeal, counsel asserts that the director assumed in error that the petitioner seeks to classifY the 
beneficiary as a manager, rather than as an executive. Counsel emphasizes that the plain reading of the 
statutory definition of "executive capacity" reveals that executives are not required to supervise subordinate 
supervisory, professional or managerial employees, and that USCIS cannot require an executive to supervise 
such staff. Counsel reiterates the job description included in his letter dated April I, 2009, and states that, 
based on such duties, the beneficiary "is not merely clothed with an executive title" but is "actually charged 
primarily with executive capacity responsibilities and authority in the United States entity." Counsel relies on 
unpublished AAO decisions in support of the proposition that a beneficiary may serve in an executive 
capacity even when the petitioning enterprise has few or no employees. 
Counsel further emphasizes that the petitioner's business is "very specialized" and requires the beneficiary to 
perform "sophisticated economic analyses, determine which opportunities to pursue and then negotiate the 
deals." Counsel asserts that "the day-to-day functions of ticket sales, reservations and group travel planning 
are designated for the employees in those specific positions." Counsel states that the beneficiary is 
responsible for "directing the management of the organization, establishing long range goals, to exercise wide 
latitude in discretionary decision-making by planning, developing and establishing policies and objectives 
while receiving only general supervision or direction from the board of directors." 
In addition, counsel asserts that "it is clearly error on the part of the Service to require all start-up and small 
businesses to have multi-layered organizational structures." Counsel contends that the organizational chart 
Page 9 
establishes that the beneficiary holds a position in "the senior executive ranks," and stresses that the petitioner 
cannot be expected to have the type of hierarchy one would find in a large multinational corporation. 
Counsel requests, in the alternative, that the AAO consider the instant petition as a "de facto new office," 
citing various "factors limiting the normal growth of [the petitioner] during its first year in operation." 
Counsel explains that such factors include a delay in the issuance of the beneficiary's L-l visa, which caused 
the U.S. entity to miss the primary season for travel sales in 2008. Counsel further states that other 
extenuating factors include record violence in Ciudad Juarez and the Mexican State of Chihuahua and 
reduction in travel to the region, as well as the weak economy in the United States. Counsel asserts that, in 
light of such factors, the petitioner could not be reasonably expected to have a "fully realized business." 
B. Discussion 
Upon review, and for the reasons discussed below, the petitioner has not established that the beneficiary will 
be employed in primarily executive capacity under the extended petition. 
As a preliminary matter, the AAO notes that the petitioner is not eligible for a second "new office" L-IA visa 
approval with an additional one-year validity period. The L-IA nonimmigrant visa classification is not an 
entrepreneurial visa classification that would allow an alien a prolonged stay in the United States in a non­
managerial or non-executive capacity to start up a new business. The regulations allow for a one-year period 
for a U.S. petitioner to commence doing business and develop to the point that it will support a managerial or 
executive position. The only provision that would allow for the extension of a "new office" visa petition 
requires the petitioner to demonstrate that it is staffed and has been "doing business" in a regular, systematic, 
and continuous manner for the previous year. 8 C.F.R. § 214.2(l)(14)(ii). 
In general, the statute allows nonimmigrant L-IA classification for an alien that is being transferred from an 
overseas employer temporarily to the United States to work for a related company in a managerial or 
executive capacity. Section 10 I (a)(15)(L) of the Act. 8y statute, eligibility for the classification requires that 
the duties of a position be "primarily" of an executive or managerial nature. Sections 101 (a)(44)(A) and (8) 
of the Act, 8 U.S.C. § 1101(a)(44). Pursuant to the statutory definitions of the terms, section 101(a)(15)(L) of 
the Act does not include any and every type of "manager" or "executive," such as staff officers or specialists, 
self-employed persons who perform the management activities involved in practicing a profession or trade, or 
a first-line supervisor of non-professional employees. See section 101(a)(44)(A)(iv) of the Act; see also 52 
Fed. Reg. 5738, 5740 (February 26, 1987) (available at 1987 WL 127799). 
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
USCIS regulation, that allows for a more lenient approach to petitions filed on behalf of managers or 
executives that are entering the United States to open a new office. 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. In an accommodation that is more lenient than the strict language of 
the statute, the "new office" regulations allow a newly established petitioner one year to develop to a point 
that it can support the employment of an alien in a primarily managerial or executive position. 
Page 10 
In creating the "new office" accommodation, the legacy Immigration and Naturalization Service (INS) 
recognized that the proposed definitions of manager and executive created an "anomaly" with respect to the 
opening of new offices in the United States since "foreign companies will be unable to transfer key personnel 
to start-up operations if the transferees cannot qualifY under the managerial or executive definition." 52 Fed. 
Reg. at 5740. The INS recognized that "small investors frequently find it necessary to become involved in 
operational activities" during a company's startup and that "business entities just starting up seldom have a 
large staff." Id. Despite the fact that an alien engaged in the start up of a new office may not be "primarily" 
employed in a managerial or executive capacity, as then required by regulation and later by statute, the INS 
amended the final regulations to allow for L classification of persons who are coming to the United States to 
open a new office as long as "it can be expected ... that the new office will, within one year, support a 
managerial or executive position." Id. 
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. See generally, 8 C.F.R. § 214.2(l)(3)(v). At the time 
of filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired 
sufficient physical premises to house the new office and that it will support the beneficiary in a managerial or 
executive position within one year of approval. Specifically, the petitioner must describe the nature of its 
business, its proposed organizational structure and 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. Jd. After 
one year, USCIS will extend the validity of the new office petition only if the entity demonstrates that it has 
been doing business in a regular, systematic, and continuous manner "for the previous year." 8 C.F.R. 
§ 214.2(l)(14)(ii)(B). 
USCIS will not grant a second petition under the more lenient "new office" provisions because it would 
undermine the established regulatory scheme for L-l nonimmigrants and create an incentive for foreign 
companies to delay or under-fund the implementation of their U.S. business plans. By allowing multiple 
petitions under the more lenient standard, USCIS would in effect encourage foreign entities to create inactive, 
under-funded or under-staffed companies in the United States, with the expectation that they could receive 
multiple extensions of their L-l status without primarily engaging in managerial or executive duties. 
Upon review of the current petition, it is apparent that the petitioner was unable to start operations and grow 
as quickly as anticipated. This failure on the petitioners part is not a result of some impossibility created by 
the law or regulations. The one-year period was not included in the regulations as a hindrance to new offices. 
On the contrary, the new office provisions were added to the regulations in 1987 specifically in recognition 
that it would be impossible for some new offices to immediately employ someone in an executive or 
managerial capacity as defined in the regulations. See 52 Fed. Reg. at 5739-5740. At the same time, the 
legacy INS stated that it "must concern itself with abuse or the potential for abuse of any visa category" and 
further noted that "one year is sufficient for any legitimate business to reach the 'doing business' standard." 
Jd. 
In conclusion, the petitioner may not be granted a second petition under the more lenient "new office" 
provision. The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the intended United States operation one year 
within the date of approval of a new office petition to support an executive or managerial position. There is 
no provision in uscrs regulations that allows a petitioning corporation additional petitions under the "new 
Page II 
office" regulatory accommodation for managers and executives. If the business is not sufficiently operational 
after one year, the petitioner is ineligible by regulation for an extension of the prior approved L-I petition. 
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(l)(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 either an executive or a managerial capacity. Id. The AAO acknowledges that the petitioner has 
consistently claimed that the beneficiary performs primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. At a minimum, the petitioner must demonstrate that the beneficiary's responsibilities will meet the 
requirements of one or the other capacity. 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must show that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30,1991). 
The fact that the beneficiary manages or directs a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
sections IOI(a)(l5)(L) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" of an executive or managerial nature. Sections 101(A)(44)(A) and (B) of the Act, 8 
u.s.c. § 1101(a)(44). Pursuant to the strict statutory definitions, section 101(a)(l5)(L) of the Act does not 
include any and every type of "manager" or "executive," such as staff officers or specialists, self-employed 
persons who perform the management activities involved in practicing a profession or trade, or a first-line 
supervisor of non-professional employees. See section 101(a)(44)(A)(iv) of the Act; see also 52 Fed. Reg. 
5738, 5740 (February 26, 1987)(available at 1987 WL 127799). While the AAO does not doubt that the 
beneficiary exercises discretion over the petitioner's day-to-day operations and possesses the requisite level of 
authority with respect to discretionary decision-making, the petitioner has failed to show that the beneficiary's 
duties as of the date of tiling are primarily executive in nature. 
The petitioner has provided at least five different descriptions of the beneficiary's duties, including two 
different breakdowns describing how the beneficiary allocates her time among 10 or II different tasks, as 
well as lists of 23 to 24 tasks with no assigned percentages, and a list of duties from counsel that largely 
paraphrases the statutory definition of executive capacity. The AAO is not in a position to determine which of 
the submitted job descriptions most accurately describes the beneficiary's actual duties, but will give more 
weight to those descriptions that include information regarding how much time the beneficiary devotes to 
specific tasks and responsibilities. Whether the beneficiary is a managerial or executive employee turns on 
whether the petitioner has sustained its burden of proving that her duties are "primarily" managerial or 
executive. See sections 101(a)(44)(A) and (B) of the Act. The petitioner's job description should be 
sufficiently detailed to establish what portion of the beneficiary's job duties is primarily executive in nature 
and what proportion is actually non-executive. See generally, Republic of Transkei v. INS, 923 F.2d 175, 177 
(~.C. Cir. 1991). 
At the time of filing, the petitioner indicated that the beneficiary devotes the largest portion of her time, 25 
percent of her weekly hours, to "directing the operations of the United States subsidiary," but included no 
Page 12 
further infonnation regarding what this responsibility entails. Conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient. Specifics are clearly an important indication of whether 
a beneficiary's duties involve specialized knowledge, otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
ajfd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
While the position description includes some qualifying duties, such as developing the company's overall 
strategies, budget policies and objectives, the petitioner did not indicate that the beneficiary would be 
devoting more than 25 percent of her time to such tasks. The petitioner has not explained how the 
beneficiary's duties related to generating and sustaining clientele, developing and overseeing commercial 
agreements with travel service providers and "managing relationships," which account for 35% of her time, 
rise to the level of "executive capacity," as such duties are inherently related to the sales, marketing and 
provision of the petitioning agency's services. The non-executive operations activities of a travel agency are 
not limited solely to the sale of travel services to individuals and groups. The petitioner generates commission 
income by partnering with specific hotels, car rental companies, airlines and other travel service providers. 
Based on the information in the record, these entities offer participating travel agencies a standard 
commission as part of an affiliate program, and have a fairly straightforward process that involves submitting 
an affiliate application with a signed affiliate agreement. It is not clear what executive duties are involved in 
"managing" or "negotiating" these types of affiliate relationships or agreements. 
The petitioner stated that the beneficiary would spend the remaining 15% of her time training and supervising 
the petitioner's employees, and installing, operating and training employees to use travel industry software. 
The petitioner's employees are claimed to include two sales representatives whose employment has not been 
well documented in the record. While it is undoubtedly critical that the petitioner's employees receive proper 
training, the petitioner has not established that training personnel is a task that traditionally falls under 
executive capacity. 
In response to the director's request for a more detailed description of the beneficiary's specific duties and a 
breakdown of the time she devotes to specific tasks, the petitioner submitted a new list of nine duties which 
are stated to account for the beneficiary's 40-hour workweek. This description of the beneficiary's duties 
bears little resemblance to those discussed above, and the petitioner provided no explanation for providing 
two conflicting explanations regarding how the beneficiary spends her time. The purpose of the request for 
evidence is to elicit further infonnation that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. § 103.2(b)(8). The infonnation provided by the petitioner in its response to the 
director's request for further evidence did not clarify or provide more specificity to the original duties of the 
position, but rather added new generic duties to the job description. Therefore, the analysis of this criterion 
will be based on the job description submitted with the initial petition. 
The duties described in the revised job description include collecting financial data, working with travel 
providers or commercial vendors, writing business correspondence, and perfonning non-executive functions. 
None of these duties appear to be executive in nature. The beneficiary's remaining duties include vaguely 
described responsibilities such as "direct and coordinate activities of travel agency," "coordinate functions 
among departments," and "prepare budgets for programmed trips." The petitioner failed to specify exactly 
what activities the beneficiary directs and coordinates, and the record fails to support a finding that the 
petitioning agency consisting of the beneficiary and two claimed commissioned sales people is organized by 
Page 13 
"department." The petitioner did not explain why establishing budgets for programmed trips, which appears 
to be a component in offering travel packages to clients, is considered to be an executive function. The 
petitioner emphasizes that such tasks require analytical skills, but the complexity of the duties do not 
automatically raise them to those included in the statutory definition of "executive capacity." 
Finally, the AAO notes that the submitted job descriptions do not indicate that the beneficiary is directly 
involved in the company's sales, while many invoices issued by the petitioner, including those issued 
subsequent to the hiring of the claimed subordinate personnel, identify the beneficiary as the "sales rep" who 
handled the transaction. Therefore, the job descriptions submitted, in addition to being inconsistent, appear to 
be incomplete and cannot be considered to provide an accurate account of the beneficiary's actual duties at the 
end of the first year of operations. As discussed above, while the beneficiary appears to be the individual 
responsible for the U.S. company and possesses the authority to establish goals and policies, the record does 
not support a finding that the majority of her duties rise to the level of "executive capacity" as defined in the 
statute. 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services (USCIS) 
reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational duties, the 
nature of the petitioner's business, and any other factors that will contribute to a complete understanding of a 
beneficiary's actual duties and role in a business. The petitioner indicates that non-executive tasks, such as 
dealing with telephone and in-person inquiries from customers and handling sales transactions, are performed 
by subordinate personnel. 
However, the petitioner has not clearly explained or documented the number or types of workers it employed 
at the time of filing, or the nature or scope of the services they provide. The petitioner indicated on the Form 
1-129 that it employed "approximately 5" workers at the time of filing. In a letter accompanying the petition, 
the petitioner indicated that the company is "minimally staffed" with three employees who are paid on a 
commission basis. The petitioner submitted employment contracts for only two employees. Again, it is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Doubt 
cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. ld. at 591. 
Furthermore, the regulation at 8 C.F.R. § 214.2(l)(14)(ii)(D) plainly requires the petitioner to submit a 
statement describing the staffing of the new operation, including the number of employees and types of 
positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed 
in a managerial or executive capacity. The petitioner has not submitted consistent information regarding the 
number of employees, nor has it provided evidence of any payments to direct or commissioned employees or 
contractors other than evidence that it pays approximately $135 monthly for the services of a bookkeeping 
service. As noted above, the record contains evidence that Jose Fernandez the "travel sales" employee does 
perform sales duties for the company, however, the petitioner has not provided a position description or 
indicated whether he is a full-time or part-time employee. The record contains no corroborating evidence 
establishing that the other claimed employee, Alejandro Carrillo, was working for the petitioner at the time of 
Page 14 
fil ing the petition. Rather the evidence suggests that the beneficiary is directly performing the sales related to 
the petitioners' "Turismap" travel directory. While we note that the names of at least two other individuals 
appear as "sales rep" on the petitioner's invoices, the petitioner has not claimed to employ anyone other than 
the two individuals referenced above. 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 Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972». 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within an 
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. § llOl(a)(44)(B). Under the 
statute, a beneficiary must have the ability to "direct the management" and "establish the goals and policies" 
of the 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. While counsel correctly asserts that the definition of 
"executive capacity" does not require the petitioner to establish that the beneficiary supervises a subordinate 
staff comprised of managers, supervisors and professionals, it is the petitioner's burden to establish that 
someone other than the beneficiary carries out the day-to-day, non-executive functions of the organization. 
Here, while the beneficiary is responsible for the goals and policies of the company as its executive director, 
the evidence of record fails to demonstrate that these are her primary duties, nor has it explained who 
performs the majority of the non-qualifYing tasks associated with operating a travel agency. 
The AAO notes that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, in reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that USCIS "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. Us. Citizenship and Immigration Services 469 F. 3d 1313, 1316 (9th 
Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. 
Co. v. Sava, 905 F.2d 41, 42 (2d Cir. I 990)(per curiam); Q Data Consulting. Inc. v. INS, 293 F. Supp. 2d 25, 
29 (D.D.C. 2003». It is appropriate for USCIS to consider the size of the petitioning company in conjunction 
with other relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, IS 
(D.D.C. 200 I). 
Furthermore, in the present matter, the regulations provide strict evidentiary requirements for the extension of 
a "new office" petition and require USCIS to examine the organizational structure and staffing levels of the 
petitioner. See 8 C.F.R. § 214.2(l)(l4)(ii)(D). The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new 
office" operation one year within the date of approval of the petition to support an executive or managerial 
position. There is no provision in USCIS regulations that allows for an extension of this one-year period. If 
Page IS 
the business does not have sufficient staffing after one year to relieve the beneficiary from primarily 
performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In 
the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a primarily 
managerial or executive position. 
We acknowledge counsel's arguments that the petItIOner does not require a multi-tiered organizational 
structure due to the nature ofthe business. Based on the petitioner's proposed organizational chart, however, 
the petitioner does in fact anticipate the need for an office manager and several department supervisors. It 
simply has not grown to a point where it can employ any regular, full-time staff, much less hire a manager. 
Counsel further refers to unpublished decisions in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-l classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that AAO precedent 
decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
The petitioner, as a service-oriented business, clearly cannot support an executive position if it has no full­
time employees or contractors to engage in duties related to providing the services. Furthermore, the 
reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily" 
employed in a managerial or executive capacity as required by the statute. See sections IOI(a)(44)(A) and (B) 
of the Act, 8 U.s.C. § 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who 
allocates 51 percent of his or her duties to managerial or executive tasks as opposed to 90 percent, but those 
needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying duties. 
Regardless of the beneficiary's position title, the record is not persuasive that the beneficiary will function at a 
senior level within an organizational hierarchy. Even though the enterprise is in a preliminary stage of 
organizational development, the petitioner is not relieved from meeting the statutory requirements. Although 
the petitioner indicates that it intends to hire several employees in the future, it is a long-established rule in 
visa petition proceedings that a petitioner must establish eligibility as of the time of filing the petition. A visa 
petition may not be approved based on speculation of future eligibility or after the petitioner or beneficiary 
becomes eligible under a new set offacts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 
1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971); Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm. 1998). Accordingly, the appeal will be dismissed. 
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. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.