dismissed L-1A Case: Travel Services

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
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prevent clearly ~ik~~~~~lii~~lttt~i U.S. Citizenship 
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 and Immigration 
File: EAC 08 142 54236 Office: VERMONT SERVICE CENTER Date: APR 0 % 2009 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
-2- 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
EAC 08 142 54236 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of "vice 
president" 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. 5 
1101(a)(15)(L). The petitioner, a corporation formed under the laws of the State of New Jersey, plans to sell 
travel packages and other services, focusing on outbound travel to India. 
The director denied the petition concluding that the petitioner failed to establish (1) that the beneficiary was 
employed abroad in a primarily managerial or executive capacity; or (2) that the beneficiary will be employed 
by the United States operation in a primarily managerial or executive capacity within one year. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the record establishes that the 
beneficiary primarily performed managerial and executive duties abroad and that the petitioner will support a 
managerial or executive position within one year. In support, counsel submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a 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 hiher 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. 
EAC 08 142 54236 
Page 3 
In addition, the regulation at 8 C.F.R. 4 214.2(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 (l)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial 
ability of the foreign entity to remunerate the beneficiary and 
to commence doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The first issue is whether the petitioner has established that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
EAC 08 142 54236 
Page 4 
hnctions 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. tj 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction fiom 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 101 (a)(44)(A) of the Act, or primarily executive duties under section 101 (a)(44)(B) of 
the Act. 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. Given the lack of clarity, the AAO will assume that 
the petitioner is asserting that the beneficiary was employed in either a managerial or an executive capacity 
and will consider both classifications. 
The petitioner described the beneficiary's duties abroad in a letter dated April 17,2008 as follows: 
[The beneficiary] commenced his employment with [the foreign employer] in October 2006 
in the capacity of General Manager. In this capacity he is in charge of all overseas 
originating travel business (commercial as well as leisure) inbound to India and the rest of the 
world. 
The foreign employer also submitted a description of its operation in which the beneficiary's position is 
described as "international sales." 
Finally, the foreign employer described the beneficiary's position abroad as "general manager - inbound" and 
his ascribed duties in a letter dated February 7, 2008 as follows: 
[The beneficiary] is responsible for marketing in the international Market. As a company 
policy he has been traveling abroad for business meetings and also to attend overseas 
Exhibitions for the promotion and marketing of Indian Travel Products. 
EAC 08 142 54236 
Page 5 
On April 25, 2008, the director requested additional evidence. The director requested, inter alia, job 
descriptions of all employees under the beneficiary's supervision abroad, including breakdowns of the number 
of hours devoted to each ascribed duty on a weekly basis; a more detailed description of the beneficiary's 
duties abroad, including a breakdown of the number of hours devoted to each ascribed duty on a weekly 
basis; and additional evidence addressing the management and personnel structure of the foreign employer, 
including evidence pertaining to subordinate workers supervised by the beneficiary or who relieve the 
beneficiary of the need to perform non-qualifying tasks. 
In response, the petitioner submitted organizational charts pertaining to the beneficiary's foreign employment. 
The charts portray the beneficiary as "general manager - inbound" and as directly and indirectly supervising 
subordinate workers. The charts indicate that the beneficiary supervises the general manager of "channel 
sales," the assistant general manager of "ecommerce," the head of customer service, and the assistant general 
manager of technology. The chart also indicates that each of these subordinates supervises assistant 
managers. 
The petitioner also submitted a list of position descriptions, which appear to relate to the beneficiary and the 
foreign employer's other workers. The duties of the position of "general manager - inbound sales," which 
appears to be the job attributed to the beneficiary, is described as follows: 
Will be responsible for identifying and acquiring new international clients and increasing 
business with the existing clients. 
Should build an excellent rapport with all the clients. 
Will be responsible for building the brand image and maintaining the brand identity on an 
international level. 
Responsible for Profit Centre. 
Shall be responsible for planning and implementation of all the international sales. 
Sales analysis and market trends. 
Will attendlparticipate in various international trade shows in order to promote the brand. 
They [sic] will be single hctional heads of a Division. 
Will be responsible for building a[n] excellent rapport with all the international clients. 
The list of positions also contains descriptions for the "general manager - channel sales" and the "assistant 
general manager - technology." It is not clear whether any of the remaining position descriptions pertain to 
either the "assistant general manager of ecommerce" or the "head of customer service," although there are 
position descriptions relating to other "ecommerce" jobs. Regardless, the position descriptions for "general 
manager - channel sales," "assistant general manager - technology," and the "ecommerce" jobs potentially 
relevant to the positions listed on the organizational chart beneath the beneficiary all describe workers who 
appear to perform sales, marketing, and technical tasks necessary to the provision of the foreign employer's 
services. None of these "managers" is specifically described as having supervisory or managerial 
responsibilities over other workers. Also, although the list of positions states that many of these positions 
require workers to have earned university degrees, the record is devoid of evidence establishing that such a 
degree is necessary for the performance of the ascribed duties. The petitioner also did not submit evidence 
that any of these subordinate workers has actually earned such a degree. 
EAC 08 142 54236 
Page 6 
It is also noted that the record does not contain breakdowns of the number of hours devoted to each ascribed 
duty on a weekly basis for the beneficiary and his claimed subordinate workers, even though this evidence 
was requested by the director in his Request for Evidence. 
On May 21, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was employed abroad primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the record establishes that the beneficiary primarily performed managerial and 
executive duties abroad. In support, counsel submits additional evidence pertaining to the beneficiary's 
claimed job duties abroad. 
Upon review, counsel's assertions are not persuasive. 
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. $5 214.2(1)(3)(ii) and (iv). 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. A petitioner cannot claim that some of the 
duties of the position entailed executive responsibilities, while other duties were managerial. Again, 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. 
As a threshold issue, it is noted that counsel's attempt on appeal to supplement the record with additional evidence 
pertaining to the beneficiary's foreign job duties was inappropriate and will not be considered by the AAO. The 
director specifically requested additional evidence addressing the beneficiary's foreign duties, and the duties 
of his subordinates, in his Request for Evidence. The petitioner failed to submit sufficient evidence, and now 
counsel is attempting to supplement the record on appeal. However, as the petitioner was put on notice of 
required evidence and given a reasonable opportunity to provide it for the record before the visa petition was 
adjudicated, 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. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
acted in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary did on a day- 
to-day basis. For example, the petitioner states that the beneficiary was "in charge" of originating overseas 
travel business and was "responsible" for acquiring new clients, increasing business, building brand image 
and identity, sales planning and implementation, and building rapport with clients. However, the petitioner 
fails to explain what, exactly, the beneficiary did to be "in charge of," or to be "responsible" for, these duties 
when it appears he devoted most of his time to attending trade shows and finalizing arrangements with clients. 
Moreover, the petitioner did not provide a breakdown of the number of hours devoted to each of the 
beneficiary's ascribed duties on a weekly basis, even though this evidence was specifically requested by the 
director in his Request for Evidence. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). The fact that the petitioner has 
given the beneficiary a managerial or executive title and has prepared a vague job description which includes 
EAC 08 142 54236 
Page 7 
inflated job duties, yet omits requested evidence, 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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 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). 
Consequently, the record is not persuasive in establishing that the beneficiary primarily performed qualifying 
duties abroad. To the contrary, it appears that the beneficiary devoted most of his time to performing non- 
qualifying operational, administrative, sales, and marketing tasks, e.g., attending trade shows and exhibitions 
and working directly with clients. Absent evidence to the contrary, these tasks are not qualifying managerial 
or executive duties. Furthermore, the record does not establish that any subordinate workers relieved the 
beneficiary of the need to perform these non-qualifying tasks. Although the petitioner claims the beneficiary 
supervised workers, the record does not establish that these workers performed the non-qualifying tasks 
inherent to the sales and marketing duties ascribed to the beneficiary, thus freeing him to primarily perform 
qualifying duties. Once again, failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. !j 103.2(b)(14). Instead, it appears that these subordinate 
workers performed sales, marketing, and technical tasks in conjunction with the beneficiary's simultaneous 
performance of similar non-qualifying tasks. Finally, absent breakdowns of the duties ascribed to the 
beneficiary's claimed subordinate workers, as was also requested by the director, it is impossible to discern 
whether the beneficiary was relieved of the need to primarily perform non-qualifying tasks. See id. 
Accordingly, it appears more likely than not that the beneficiary primarily performed non-qualifying 
administrative, operational, sales, and marketing tasks in his position abroad. An employee who "primarily" 
performs 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. 593,604 (Comm. 1988). 
The petitioner also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees, or managed an essential function of the organization. As 
claimed in the record, the beneficiary directly and indirectly supervised subordinate workers abroad, 
including the general manager of "channel sales," the assistant general manager of "ecommerce," the head of 
customer service, and the assistant general manager of technology. However, the record is not persuasive in 
establishing either that the beneficiary actually supervised, directly or indirectly, any of these workers or that 
any of the claimed subordinates is a bona fide supervisory, managerial, or professional employee. 
First, the job description provided for the beneficiary does not specifically describe the beneficiary as having 
any supervisory or managerial responsibilities over any of the workers described in the organizational chart. 
Given that the record indicates that the beneficiary devoted much of his time to attending exhibitions and 
working directly with clients, it is not credible that the beneficiary truly supervised and controlled any of 
these workers absent evidence to the contrary. Arbitrarily placing one worker beneath the beneficiary on an 
organizational chart will not alone establish that the beneficiary supervised and controlled this worker. 
Instead, the petitioner must establish that the employee has some control over the employment and work 
EAC 08 142 54236 
Page 8 
performance of the subordinate worker and that this relationship is both reasonable and consistent with the 
ascribed job duties of both workers. In this matter, as the beneficiary is described as primarily performing 
non-qualifying tasks, and the subordinate workers are not described as relieving the beneficiary of performing 
these tasks, it has not been established that the beneficiary truly supervised and controlled the claimed 
subordinates. 
Second, even assuming the beneficiary supervised and controlled the claimed subordinate workers, the record 
is not persuasive in establishing that any of the subordinates were supervisory, managerial, or professional 
employees. Although the organizational chart and associated job titles imply that some of these subordinate 
workers had supervisory or managerial responsibilities over other employees, the job descriptions submitted 
for the record describe all the subordinate workers as principally performing sales, marketing, and technical 
tasks necessary to the provision of the foreign employer's services. None of these "managers" is specifically 
described as having supervisory or managerial responsibilities over other workers. Furthermore, as noted 
above, as the petitioner failed to provide breakdowns of the number of hours devoted to each of the ascribed 
duties, it cannot be discerned whether any of these workers was employed in a managerial or supervisory 
capacity. Once again, failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). Accordingly, it appears that the beneficiary was, 
at most, a first-line supervisor of non-professional employees. A managerial employee must have authority 
over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised 
employees are professionals. 10 1 (a)(44)(A)(iv) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. Also, although the list of positions states that many of these subordinate 
positions require workers to have earned university degrees, the record is devoid of evidence establishing that 
such a degree is necessary for the performance of the ascribed duties.' 
Therefore, the petitioner has not established that the beneficiary was employed primarily in a managerial 
capacity.* 
1 
In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the 
subordinate positions required a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 6 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. 817 (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). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by the subordinate employee. The possession of a 
bachelor's or master's degree by a subordinate employee does not automatically lead to the conclusion that an 
employee is employed in a professional capacity as that term is defined above. Furthermore, in this matter, 
the petitioner failed to establish that any of the subordinate workers has in fact earned such a degree. 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. 
2 
While the petitioner has not argued that the beneficiary managed an essential hction of the organization, 
EAC 08 142 54236 
Page 9 
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 
establish that the beneficiary acted primarily in an executive capacity. The beneficiary's job description is so 
vague that it cannot be discerned what, exactly, the beneficiary did on a day-to-day basis. As explained 
above, it appears more likely than not that the beneficiary was primarily employed, at most, as a first-line 
supervisor and performed the tasks necessary to produce a product or to provide a service. 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 primarily performed managerial or 
executive duties abroad, and the petition may not be approved for that reason. 
The second issue in this proceeding is whether the intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial position. 
In support of its petition, the petitioner described its "mission" in a letter dated April 17, 2008 as "the US 
based point of contact and sales for US origin leisure and business travel customers outbound to India" and 
the record nevertheless would not support this position even if taken. 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 
101(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. 8 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
managed the function rather than performed 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 that the beneficiary's duties were primarily managerial. Also, as explained 
above, the record indicates that the beneficiary was more likely than not primarily a first-line supervisor of 
non-professional workers andlor a performer of non-qualifying tasks. 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, if any, nor can it deduce whether the beneficiary was primarily performing the duties 
of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
EAC 08 142 54236 
Page 10 
claimed that it will target the "large US based Indian diaspora in the NJ-NY-CT-PA hub." The petitioner 
described the beneficiary's role in this business as follows: 
In the capacity of Vice President of [the petitioner, the beneficiary] will be responsible for 
setting up and managing the US office; increase US outbound leisure and business travel 
inbound to India and the rest of the world, bookings through [the petitioner,] recruit and 
manage sales and other staffl,] represent overseas parent at seminars, shows, business 
meetings, etc. and manage, administer and run the entire US based operation. 
The petitioner submitted a proposed organizational chart for the United States operation. The chart portrays 
the beneficiary as directly supervising a position described only as "proposed," which, in turn, is shown 
supervising three sales persons, an assistant, an outside accountant, and an outside attorney. 
The petitioner also submitted uncorroborated financial projections. These projections indicate, inter alia, that 
the petitioner will pay $4,500.00 in salaries per month in the first year and $6,000.00 per month in the second 
year of operation. The petitioner claims that the beneficiary will be paid $42,000.00 per year. 
On April 25, 2008, the director requested additional evidence. The director requested, inter alia, a business 
plan for the proposed United States operation, which includes a timetable for each proposed action for the 
next two years; evidence that an investment has been made in the United States operation; and descriptions of 
the proposed staff of the United States operation, including the number of employees, job titles, duties, and 
management structure. 
In response, the petitioner submitted a letter dated May 9, 2008 in which it further describes the proposed 
duties of the beneficiary in the United States as follows: 
In the US, [the beneficiary] will be the head of all US operations and as such, he is and will 
continue, to be, upon transfer, an executive. He will spend 30% of his time in raising the 
public profile of the company by preparing for and attending Trade, Tour and Travel shows, 
seminars, special presentations media events, etc.; 40% of the time in managing the US and 
overseas teams; 15% of the time in developing new channels, outlets and markets and 
negotiating and closing partnership deals; 15% of his time will be spent in meetingis] and 
teleconferences with the executive team in India, dealing with the executive, administrative 
and operational tasks of the office (including interacting with the accountant and attorney). 
The petitioner also submitted a document titled "Action Plan." This plan primarily describes the petitioner's, 
and the beneficiary's, plan for promoting the petitioning organization's travel products at trade shows and 
exhibitions. Attached to the "Action Plan" are uncorroborated financial projections which generally pertain to 
the amount of travel products the petitioner hopes to sell in the upcoming years. Finally, the petitioner 
submits a proposed organizational chart for the United States operation. This chart is almost identical to the 
chart submitted with the initial petition with the exception that it indicates that the three sales persons will be 
paid $25,000.00 per year and the assistant will be paid $20,000.00. The position between the beneficiary and 
these subordinate workers is still described only as "proposed." 
EAC 08 142 54236 
Page 11 
On May 21, 2008, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary will be employed by the United States operation in a primarily managerial or executive position 
within one year. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties in the United States within one year of petition approval. In support, counsel submits a more detailed 
business and staffing plan. 
Upon review, counsel's assertions are not persuasive. 
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. 8 214.2(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. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andlor services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target marketlprospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefor. Most importantly, the business plan must be credible. 
Id. 
For several reasons, 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 
EAC 08 142 54236 
Page 12 
would be an actual need for a manager or executive who will primarily perform qualifying duties. The 
petitioner has failed to establish that the beneficiary will primarily perform qualifying duties after the 
petitioner's first year in operation; has failed to establish that the beneficiary will be relieved of the need to 
perform the non-qualifying tasks inherent to the operation of the business by a subordinate staff within the 
petitioner's first year in operation; has failed to sufficiently and credibly describe the nature, scope, and 
financial goals of the new office; and has failed to establish that a sufficient investment has been made in the 
United States operation. 8 C.F.R. fj 214.2(1)(3)(v)(C). 
As a threshold issue, it is noted that counsel's attempt on appeal to supplement the record with additional evidence 
pertaining to the staffing and scope of the proposed United States enterprise was inappropriate and will not be 
considered by the AAO. The director specifically requested additional evidence addressing the proposed 
staffing and scope of the United States operation in his Request for Evidence. The petitioner failed to submit 
this evidence, and now counsel is attempting to submit this evidence for the first time on appeal. However, as 
the petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the 
record before the visa petition was adjudicated, the AAO will not consider this evidence for any purpose. See 
Matter of Soriano, 19 I&N Dec. 764; Matter of Obaigbena, 19 I&N Dec. 533. The appeal will be adjudicated 
based on the record of proceeding before the director. 
First, the job description for the beneficiary fails to credibly establish that the beneficiary will be performing 
primarily "managerial" or "executive" duties after the petitioner's first year in operation. When examining the 
proposed executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's 
description of the proposed job duties. See 8 C.F.R. fj 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties that will be performed by the beneficiary and indicate whether such 
duties will be either in an executive or managerial capacity. Id. 
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate that he will primarily perform qualifying duties after the petitioner's first year in 
operation. For example, the petitioner states that the beneficiary will devote 30% of his time to attending 
trade shows, 40% of his time to "managing the US and overseas teams," 15% to developing "new channels" 
and negotiating deals, and 15% to meetings with the executive team in India. However, the petitioner fails to 
explain what, exactly, the beneficiary will do to "manage" the operation other than to act as a first-line 
supervisor of a non-professional, four-person sales and administrative staff. This will amount to 
approximately 40% of his time. Also, absent evidence to the contrary, it has not been established that the 
beneficiary's duties pertaining to attending trade shows, developing channels, and negotiating deals, which 
collectively amount to approximately 45% of his time, will be qualifying managerial or executive duties. 
Accordingly, it appears that at least 85% of the beneficiary's time will be devoted to performing non- 
qualifying administrative, operational, and first-line supervisory tasks, even assuming that the petitioner will 
be able to hire the proposed subordinate workers, which has also not been established (see infra). The fact 
that the petitioner has given the beneficiary a managerial or executive title and has prepared a vague job 
description which includes inflated duties does not establish that the beneficiary will actually perform 
managerial duties after the first year in operation. Specifics are clearly an important indication of whether a 
beneficiary's duties will be primarily executive or managerial in nature; otherwise meeting the definitions 
would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
afd, 905 F.2d 41. Once again, going on record without supporting documentary evidence is not sufficient 
EAC 08 142 54236 
Page 13 
for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190. An employee who "primarily" performs 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; see also Matter of Church Scientology International, 19 I&N Dec. 
593,604 (Cornrn. 1988). 
Likewise, the record is not persuasive in establishing that the beneficiary will be, after the first year, relieved 
of the need to "primarily" perform the non-qualifymg tasks inherent to his duties and to the operation of the 
travel business. While the petitioner claims that it will hire four additional employees during its first year in 
business, the petitioner's claims are not credible. In the "action plan," the petitioner provided financial 
projections uncorroborated by an objective financial data. The petitioner projects spending $4,500.00 in 
salaries per month in the first year (or $54,000.00 per year) and $6,000.00 per month (or $72,000.00 per year) 
in the second year of operation. However, the petitioner claims that the beneficiary will be paid $42,000.00 
per year and projects that it will pay the sales persons $25,000.00 per year and the assistant $20,000.00 per 
year. Given these projections, it does not seem that the petitioner is truly planning to employ more than one 
additional person in the second year of operation. Furthermore, the record is devoid of evidence of the 
petitioner having any assets or of having secured any substantial contracts or purchase orders which would 
result in a substantial, and reasonably predictable, source of revenue needed to support the employment of 
subordinate workers. Accordingly, the petitioner has failed to establish that it will truly be able to hire the 
workers described in the record. 
To the contrary, it appears that, in his operation of the travel business, any workers hired will not relieve the 
beneficiary of the need to primarily perform the non-qualifying administrative, operational, sales, marketing, 
and first-line supervisory tasks inherent to his duties. Simply alleging that the petitioner will hire four or 
more employees who will perform non-qualifying tasks does not establish that the United States operation 
will truly grow and mature into an active business organization which will reasonably require the services of a 
beneficiary who will primarily perform managerial or executive duties. Rather, the petitioner must clearly 
define the scope and nature of a United States operation and establish that it has, and will continue to have, 
the financial ability and business strategy to support the establishment and growth of the business. However, 
as the record in this matter is devoid of any such evidence, the petitioner has failed to establish that the 
beneficiary will more likely than not perform "primarily" qualifying duties after the petitioner's first year in 
operation. 
Regardless, even assuming the petitioner could hire the four proposed workers described in the record, it 
appears that the beneficiary will be, at most, a first-line supervisor of non-professional workers. A 
managerial or executive employee must have authority over day-to-day operations beyond the level normally 
vested in a first-line supervisor, unless the supervised employees are professionals. See 101(a)(44) of the Act; 
see also Matter of Church Scientology International, 19 I&N Dec. at 604. The petitioner has not established 
that any of the proposed positions will be a bona fide supervisory, managerial, or professional worker. The 
petitioner failed to specifically describe the duties of these proposed employees, even though this evidence 
was specifically requested by the director in his Request for Evidence. Once again, failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 
 103.2(b)(14). It appears that the sales persons and assistant, if hired, will perform the tasks 
necessary to the provision of a service. Accordingly, given the size and nature of the travel operation, it is 
a EAC 08 142 54236 
Page 14 
more likely than not that the beneficiary and his proposed subordinate employees will all primarily perform 
the tasks necessary to the operation of the business. See generally Family, Inc. v. US. Citizenship and 
Immigration Services, 469 F.3d 1313 (9th Cir. 2006). Also, the petitioner's arbitrary placement of a 
"proposed" position between the beneficiary and the subordinate workers in the organizational chart is not 
persuasive in establishing that the beneficiary will control supervisory or managerial employees. Finally, it is 
not credible that a business, such as the petitioner's proposed United States operation, will develop an 
organizational complexity within one year which will require the employment of a subordinate tier of 
managers or supervisors who will ultimately be supervised and controlled by a primarily executive or 
managerial employee. Therefore, it appears that the beneficiary will be, at most, a first-line supervisor of 
non-professional employees. 
Accordingly, the petitioner has failed to establish that the beneficiary will be primarily employed in a 
managerial or executive capacity within one year, and the petition may not be approved for that reason. 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner has failed to sufficiently describe the nature, scope, 
and financial goals of the new office. 8 C.F.R. 4 214.2(1)(3)(v)(C)(I). As explained above, the petitioner 
describes the United States operation as a travel business. However, the petitioner's "action plan" and 
associated financial projections are entirely unsupported by evidence. The record does not credibly describe 
the operation's competitors or its staffing and financial plan. The record does not contain any independent 
analysis. Importantly, as noted above, the record is devoid of the petitioner having any substantial assets. It 
is not credible 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 qualifying duties, without any liquid assets. Absent a detailed, credible, and financially 
feasible description of the petitioner's proposed United States business operation, it is impossible to conclude 
that the proposed enterprise will succeed. 
Third, the petitioner has failed to establish that the United States operation has received an investment which 
will permit the enterprise to grow and succeed during its first year in operation. As noted above, the record is 
devoid of evidence of any cash investment in the enterprise. It is not credible that, absent evidence that the 
petitioner will immediately begin generating substantial revenue, the business will 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 within one year. 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. 9 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
Beyond the decision of the director, the petitioner has failed to establish that it has secured sufficient physical 
premises to house the new office. 8 C.F.R. $214.2(1)(3)(v)(A). 
In support of the petition, the etitioner submitted a lease dated February 1, 2008 between the landlord,= 
and two tenents -- b and the petitioner, who are described collectively as "tenant" in the 
. EAC 08 142 54236 
Page 15 
the "tenant" on the last page is only one line, although it appears two individuals have signed on that line. 
One of the signatures appears to belong to the beneficiary. 
Upon review, the petitioner has failed to establish that it has secured sufficient premises to house the new 
office. First, the lease in question is for a term which commenced 49 days before the petitioner was 
incorporated on March 20, 2008. Second, it does not appear from the beneficiary's passport records that he 
was in the United States at the time the lease was purportedly executed by the parties, i.e., February 1, 2008. 
The petitioner offers no explanation for these inconsistencies in the record. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Therefore, it 
appears that the lease is not a bona fide lease between the petitioner and the landlord and that the petitioner's 
name and signature were added after its execution by Kerala Travels. 
Accordingly, the petitioner has failed to establish that it has secured sufficient premises to house the United 
States operation, 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), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (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, Znc., 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.