dismissed L-1A Case: Trucking

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FEE: LW 03 063 52551 Office: NEBRASKA SERVICE CENTER Date: FEB 0 7 2005 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 1J.S.C. 5 1101(a)(15)(L) 
ON 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 b, made to that office. 
3JL-+- 
Robert P. Wiernann, Director 
Psrrative Appeals Office 
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DISCUSSION: The Director, Nebraska 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 as an L-1A nonimmigrant 
intracompany transferee pursuant to 3 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(~).' The petitioner is a limited liability company organized in the State of Missouri that 
is operating as a trucking company. The petitioner claims that it is the subsidiary of the beneficiary's foreign 
employer located in Zaroi, Zimbabwe. The petitioner seeks to employ the beneficiary as its manager for two 
years. 
The director concluded that the petitioner failed to demonstrate: (I) that the beneficiary's foreign employer 
and the petitioning organization possess a qualifying relationship as required in 3 101(a)(15)(L) of the Act; 
and (2) that the beneficiary would be employed by the United States entity in a primarily managerial or 
executive capacity. Accordingly, the director denied the petition. 
On appeal, counsel contends that the director's decisions relating to the relationship between the beneficiary's 
foreign employer and the petitioning organization and regarding the beneficiary's employment capacity in the 
United States were contrary to the applicable statutes and regulations. Counsel claims that the evidence 
demonstrates that the beneficiary possesses owners'riip and cotitrol of both organizations. Counsel further 
claims that the beneficiary would be employed by the United States entity in both a managerial and executive 
capacity. Counsel submits a brief and additional evidence on appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section lOl(a)(lS)(L) of the Act, 8 
U.S.C. 3 1101(a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. 
Tn 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. 3 214.2(1)(3) states that an individual petition filed rjn 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. 
The AAO notes that the instant petition is the fourth petition filed by the petitioner requesting employment 
of the beneficiary. The previous three petitions were approved by Citizenship and Immigration Services, yet 
the beneficiary was repeatedly denied visa issuance by the State Department. The State Department's refusal 
to issue the beneficiary a visa does not reflect favorably on the evidence provided in the present record. 
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(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 himher 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. 
Pursuant to the regulation at 8 C.F.R. 9 214.2(1)(3)(~), if the petition indicates that the beneficiary is coming 
to the United States as a manager or executive to open or be employed in a new office in the United States, 
the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the proposed 
employment involved executive or managerial authority over the new operation; 
(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 A40 will first address the issue of whether a qualifying relationship exists between the beneficiary's 
foreign employer and the petitioning organization as required in 9 101(a)(15)Q of the Act, 8 U.S.C. 
g 1 lOl(s)(lS)(L). 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) Qualifying organization means a United States or foreign fm, corporation, or other legal 
entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in paragraph 
(I)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other country 
directly or through a parent, branch, affiliate or subsidiary for the duration of the 
alien's stay in the United States as an intracompany transferee; and, 
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(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
(I) Parent means a fm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization ho~sed in a differcat 
location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
Indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half 
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less 
than half of the entity, but in fact controls the entity. 
(L) AjCfiliute means 
(I) t3ne of tws ~ubsidiaries both sf which are owned and controlied by tlie 
same parent or indi*idual. or 
(2) One of t-NO legal entities owned and co~trolled by the same group of 
individuals, each individual owning and controlling approximately the sane 
share or proportion of each entity. 
The petitioner submitted the nonimrnigrant petition on December 19, 2002, noting that it is the subsidii~y of 
the beneficiary's foreign employer. Although the petitioner noted on the petition that counsel's attached letter 
references the stock ownership and managerial control of each company, no additional description was 
provided in coimsel's letter. The petitioner submitted the following documents related to the organization and 
ownership of the foreign entity: (1) certificate of incorporation; (2) memorandum of association; (3) amended 
memorandum of association; (4) articles of association; (5) corpcrate annual return; and (6) yeas 2000 md 
2001 financial statements. 
In 3 request for evidence, dated March 11, 2003, the director outlined the regulatory zequirenleats for a 
qualifying organization, and noted that "[slince the petitioner appears to be the beneficiary of the petition, 
rather than an organization, it does not appear that a qualifying organization exists in the United States." The 
director requested that the petitioner submit evidence that it satisfies the regulatory definition of qualifying 
aganization. 
Counsel responded in a letter dated May 30, 2003, stating that the beneficiary is the sole owner of the United 
States corporation. Counsel further stated that the beneficiary's foreign employer "is incorporated in the 
names of [the beneficiary] and [the beneficiary's wife]." Counsel referred to accompanying documentation, 
including the petitioner's articles of organization, operating agreement and 2002 corporate tax return, and the 
foreign entity's memorandum of association, as evidence of both companies' ownership. Counsel also 
coni-med that the nonirnmigrant petition was filed by the United States organization, not the beneficiary. 
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In a decision dated July 25, 2003, the director determined that the petitioner had failed to establish the 
existence of a qualifying relationship between the beneficiary's foreign employer and the petitioning 
organization. The director noted that the foreign entity's certificate of incorporation was registered in March 
1975, at which time the beneficiary would have been approximately fifteen years old. The director further 
noted that the amended memorandum of association submitted for the foreigp entity failed to identify the 
beneficiary as possessing ownership or control of the foreign entity. The director also stated that despite his 
request for evidence documenting the petitioner's ownership and control of both companies, the petitioner 
neglected to submit additional documentation. The director concluded that neither company was owned or 
controlled by the same parent, individual, or group of individuals, and similarly determined that the 
companies do not possess a qualifying relationship. Accordingly, the director denied the petition. 
In an appeal filed on August 25, 2003, counsel claims that a qualifying relationship is established, as the 
petitioning organization is an affiliate of the beneficiary's foreign employer. Counsel claims that the 
beneficiary started "the trucking branch" of the foreign entity's business in 1995 and has been functioning 
since that time as the company's shareholder and managing director. Counsel states that as the company's 
director, the beneficiary "has clearly been an owner/employee of [the foreign entity] within the last three 
years of his application for admission into the U.S." Counsel also states "[n]umerous letters from companies 
In Zimbabwe state they have conducted business with [the beneficiay's] company, [andl financial records of 
[the foreign entity] lists [the beneficiary] as a director, which directly shows that he controls [the foreiyn 
entity]." Co\msel irit-ther claims that the beneficiary has ownership and contrdl of the petitioning arganization 
"3ecause he enters into contracts, acts and dirzcts on behalf of the company." Counsel refers to the foreign 
z~~tity's annual return as evidence of the beneficiary's position as the company's director, and-claims that "[tlhe 
evidence clearlv shows that [the beneficiary] meets the qualifying relationship required by NA 
2 lOl(a)(lSj<L)." Lastly, counsel notes that Citizenship and Immigration Services (CIS) -"has approved this 
same business relationship on three prior petitions." 
On review, the petitioner has not demonstrated that the beneficiary's foreign employer and the petitioning 
organization satisfy one of the qualifying relationships outlined in the regulations. The regulations and case 
law confirm that the key factors for establishing a qualifying relationship between the U.S. and foreign 
entities are ownership and control. Matter of Siemens Medical Systems, Znc. 19 I&N Dec. 362 (BIA 1986); 
&latter of Iiz~ghes, 18 ISZN Dec. 289 (Corn. 1982); see also Matter cf Church Scientology International, 19 
I&N Dec. 593 (BlA 1988) (in immigrant visa proceedings). In the coiltext of this visa petition, ownership 
refers to the direct and indirect legal right of possession of the assets of a.n entity with full power and suthority 
to control: control means the direct or indirect legal right and authority to direct the establisl~rnent, 
znanagement, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
iiere, despite the petitioner's various claims that both a parent-subsidiary and affiliate Yelationship exists 
between the beneficiary's foreign employer and the petitioning organization, the petitioner has not 
documented the existence of a qualifying relationship. The petitioner submitted several corporate documents, 
such as the foreign entity's memorandum of association and the petitioner's articles of organization and 
operating agreement, yet none substantiate the petitioner's claim of a qualifying relationship. The foreign 
entity's memorandum of association and amended memorandum of association, which are dated March 3, 
1975 and February 1, 1990, identify two unknown individual , as 
subscribers of one share eacFi in the foreign organization. *No additional intonnation reflecting a subsequent 
change in ownership of the foreign entity has been submitted. With regards to the organization, 
Article N of the petitioner's operating agreement indicates that the member interests are outlined in Schedule 
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B of the agreement. The petitioner, however, neglected to submit Schedule B. Again, no additional 
documentation, such as membership certificates, was provided as evidence of the petitioner's ownership. 
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. Corn. 
1972). 
Additionally, Schedule K of the petitioner's Internal Revenue Service (IRS) Form 1120, U.S. Corporation 
Income Ta.x Return, fails to identify that any portioii of the petitioner's voting stock is owned by a foreign or 
United States individual, partnership, corporation or estate. The petitioner has not provided any explanat~on 
reconciling the information reported oa its corporate tax return with its inconsistent claims of a parent- 
subsidiary and affiliate relationship. 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 qf . 
' 
Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Moreove~ counsel's blanket claims on appeal that "a myriad of evidence has been offered that shows the 
petitioner meets the requisite qualifying relationship" are not sufficient in demonstrating a qaalifyiri,g 
selatiotlshjp. Counsel mistakenly believes that because the beneficiary .is shown to be the director of the 
forzi,gn mtity, ?be rcyaisite elerner~ts of ownership arid control are estabiished. Ln crdw to detenn~ne - 
clwnership and coiitrci, the petitioner is obligated to provide detailed documentary evidence. inch ding stock 
certificates, the. corprrrate ,:rock certificate lzdger, stock certificate registry, corprirate bylaws, aid the minlirss 
3f r9evant annual shareholder meetings. Additionally, a petitioning company must disclose ~11 -?gretments 
relating to the voting of shaxes, the distribution of profit, the management and direction of the subsidiary, v~d 
:.my other L#cror affecting actual control of the entit-/-. See Matter cfSEemens Medical System,s, lnc.. 19 I&N at . 
'364-365. ?Vithout full disclosure of all relevant docurents, CIS is unable to detemi~ie ihr: elements of 
ownership and control. Clearly, counsel's claim that the beneficiary has control of foreign and United States 
entities "because he enters into contracts, acts and directs on behalf of the company" is insufficient to 
establish a qualifyine relationship between the two organizations. Without dccumentary evidence to support . 
the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. Matter cf Ohoigbena, 19 
I&N Dec. 533.534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
FQ~ these reasons. :he AAO cannot conclude that a yualifyiilg relationship exists between the beneficiary's 
foreign enlployer and the petitioning organization es required in 5 lOl(a)(l5)(L) of the Act. Accordingly, the 
appeal will bc dismissed. 
The AAO will next address the issue of whether the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act. 8 1J.S.C. 3 1 101(a)(44)!A), provides: 
The term "managerial capacity" means adassignment within an organization in which the employee 
primarily- 
(i) Manages the organization, or a department, subdivision, function, or component of 
the organization; 
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(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) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizatianal hierarchy or with respect to the function managed; and 
(iv) Exercises discretion over the dry-to-day operations of the activity or function for which 
the ernployee 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. $ 1101(a)(44)(B), provides: 
The term "executivq capacity" means an assi-qment within an organization in which the ernployee 
primarily- 
(i) >. Dkects the management of the orgarlizaticn or a major component or function of the 
organization; 
.. . - 
- (ii) Establishes the goals and policies of the organization, component, or function; 
s' (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 organizatio~i. 
The petitioner noted on the nonirnmigrant petition that the beneficiary would be employed in the United 
States as a manager and "would be involved in the hiring, training, supervision and management of the 
rransport operation." In his March 11, 2003 request for evidence. the director outlined the statutory 
requirements for, mnanagerial and executive apacity, and asked that the petitioner submit evidence 
establishing that the beneficiary's proposed employment satisfies the criteria for either a manager or an 
executive. The dircctor also asked that the petitioner provide evidence of its ability to support the beneficiary 
in an executive or managerial position, including: (I) the petitioner's organizational chart identifying the 
beneficiary's proposed position in the company in relation to other employees; (2) a description of the 
proposed nature of the petitioning organization, including the scope of the entity, the proposed number of 
employees, their job titles, and a statement of each employee's job duties; and (3) the size of the United States 
investment and the foreign compar~y's financial ability to remunerate the beneficiary and to commence doing 
business in the United States. 
In the documentation accompanying counsel's May 30, 2003 response to the director's request for evidence, 
the petitioner outlined the following proposed job duties of the beneficiary: 
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1. Manage the local business. Enter into contracts for hauling. Manage office operations 
and all financial aspects of running a business. 
2. Recruit, hire, supervise and fire employees to drive the trucks and perform the terms of 
hauling agreements. 
3. Train employees and locateltrain a managerloffice personnel to handle the business while 
3wner/[the beneficiary] is out of the country. 
4. Responsible for all management decisions, including purchase of equipment, taxes, 
contracts, compliance with all StateIFederaVDepartment of Transportation regulations, and 
policy decisions for the business. 
5. Responsible for purchases of vehicles to be transferred to Africa - including customs, 
shipment details and subsequent sales of the vehicles. 
Counsel submitted a proposed organizational chart for the petilioning organization identifying the beneficiary 
as the presidentlmnager with the following subordinate employees: accountant, attorney, consultant, 
secretary services, mechanical services, cleani~g services, two full-time drivers, and one part-time driver. 
The pe~itiener noted on the chart that starting in the year 2004 the company would hire an additional driver 
each year unti! 2006. 
The peiirioner also provided a business plan for its proposed operations in the United States, noting the 
fellowing: 
[The beneficiary] plans to stay on top of his business operations through sound advice from 
his attorney Mr. Kendall Vickers, by joining National Association of the self employed 
(NASE) and by fully utilising [sic] the University of Missouri outreach and extension 
services. [The beneficiary] will manage the day to day running expenses, invoicing, cash 
book and computer input but will require the services of an accountant to keep him ahead of 
any problems that may arise. [The beneficiary] [will] initially be employing three permanent 
mcl one part time local drivers. [The beneficiary] will also keep in touch with the Ft. Scott 
community college to keep up dated on various transport advances. [The beneficiary's] future 
?lans i~clude employing a mechanic, assistant and secretary. 
With regard to its plan for operating in the United States, the petitioner stated: 
[The petitioning organization] is a start up company that will provide a dump truck service in 
road construction and maintenance. [The beneficiary] is the proprietor of the company who 
-will be contributing US $100 000.00 of his own capital as well as significant transport 
experience, knowledge and business skill. [The beneficiary] already operates a successful 
transport business in Zimbabwe and has a very good reputation. His expertise and reputation 
will give [the petitioner] a competitive service advantage. [The beneficiary] will not need to 
borrow finances from any financial institutions and consequently will not be a liability to the 
state or country. The business will initially operate in the Nevada, Eldorado Springs Rich 
Hill and Springfield area in Missouri, as well as Ft. Scott area in Kansas. 
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The petitioner further explained that its marketing plan would include servicing businesses in Missouri that 
are working to upgrade and maintain the state's road network, and would also involve exporting second-hand 
trucks to Zimbabwe. The petitioner noted that it intends to subcontract to a local trucking company, and that 
the beneficiary would source his own government contracts through the use of the University of Missouri's 
procurement assistance center. 
The petitioner submitted two letters from companies that indicated an intent to utilize the petitioner's services 
in the United States and as an importer of goods to Africa. The petitioner also provided its projected cash 
flow statements for years 2003 through 2006. 
The director determined in his decision that the petitioner had not established that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. The director clarified 
the need for CIS to distinguish between one who operates a business from one who manages an organization. 
The director noted that according to the petitioner's business plan the petitioner had not hired any employees 
at the time of filing the petition and used the services of an accountant, attorney and consultant who were not 
employed by the petitioner. The director stated that as the owner and sole employee of the petitioning 
organization, the beneficiary would be performing the day-to-day duties of the business rather than managing 
the daily dutics as calaimed by the petitioner. The djrector also stated that the beneficiary's primary. 
assignment could :lot include supervising a subordinate staff of prolessional, managerial or supervisory 
zmnployees, as the beneficiary is the sole enlployee. The director further determined hat the beneficiary 
would not operate at senior level within the organizational hierarchy, and stated that "[CIS] is not persuaded 
that Congress intended this provision to serve for self-employed individuals or entrepreneurs." Accordingly, 
rhe director denied the petition. 
On appeal, counsel claims that the beneficiary's proposed employment in "a rnanageriaUexecutive capacity" is 
clearly outlined in the petitioner's business plan. Counsel states that similar to his position abroad, the 
beneficiary's employment In the United States "[would] involve significant authority over the policy and 
operations of the U.S. company" beyond that of a supervisor. C~unsel states that as a manager, the 
beneficiary would: -. 
1. Manage the start-up and initial operation of [the petitioning organization]. 
2. He will hire, supervise and control employees, he will train employees - train a manager 
and office personnel to conduct the business when [the beneficiary] returns to Zimbabwe. 
[The beneficiary] will also be required to enter into contracts and make sure the contracts are 
properly executed, which is an essential function within the organization. 
3. Recruit, hire, supervise and terminate employees and subcontractors. Even if [the 
beneficiary] were not to hire any employees he would still qualify because as 
Presidenmanager of the U.S. company and shareholderlmanaging director of the Zimbabwe 
company he functions at a senior level within the company hierarchy. (See organizational 
charts) (Ex. 11) 
4. He will be responsible for exercising discretion over the day-to-day operations including 
but not limited to: all management decisions, including purchase of equipment for the U.S. 
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company and Zimbabwe company, which requires management of customs, shipment details 
and subsequent sales of the vehicles, management of taxes, contracts, compliance with all 
State/FederaVDepartment of Transportation regulations, and policy decisions for the business. 
(Emphasis in original). 
Counsel states that as an executive, the beneficiary would primarily: 
1. Direct the management of the company by locating, training, and creating a management 
staff. He will also enter into and negotiate csntracts, which is a major component of the 
company. The company must have hauling contracts in order to be successful. 
2. Establish the goals and p~licies of the Zimbabwe company by sourcing more affordable 
trucks. Establish the policies, set and establish goals of the U.S. company in ~rder to get it 
operational. 
3. Exercise wide latitude in decision making. [The beneficiary] has the antboi-ity to make 
my decision ~oncesning the business that is necessary. 
4. Xeceiv2 little or 29 supenision because he is the PresidenManager of the conlpaay; , :I 
howe1.t.r. kis wife, who is a rne~nber of the company may give. scae general supxvision. 
. Cou:iseS also challenges thc director's statement that Congress did not intend for the L c1assifi~:atim "to sen7z 
for seif-eii~ployed individuals or entrepreneurs." Counsel notes that "case law expressly recognizes that a . 
corporation anti T. director arc separate entities and that a sole stockholder can be eligible for an L-1 visa 
classification." Counsel states that because the petitioning organization is not yet operational, it does not 
employ any workeis. Counsel claims that "even if [the beneficiary] is the only employee of the corporadon 
he is still eligible for- an L-1 visa." Counsel further notes that 8 101(a)(44)(C) of the Act restricts CIS from 
solely ;onsidering staffing levels when determining managerial or executive capacity. Lastly. coun~el notes 
that the petitioner has previously filed three petitions for an L visa, all of which CIS has approved. 
On review, the petitioner has not dernonsmted that the beneficiaq would be employed by the United States 
entity in a pbarily managerial or executive capacity. 
When a new business is established and commences operations, the regulations recognize that a desiguated 
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, organizational 
structwe, 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. 
.S 214.?(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 t~ full operations, where there would be 
an actual need for a manager or executive who will primarily perform qualifying duties. 
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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). As required in the regulations, the 
petitioner must submit a detailed description of the executive or managerial services to be performed by the 
beneficiary. Id. 
While the petitioner provided in both its response to the director's request for evidence and on appeal a 
description of the beneficiary's proposed managerial and executive job duties, it does not demonstrate that 
within one year of filing the petition the beneficiary would be employed in a' qualifying capacity. The 
petitioner's business plan, which is relevant to determining the scope, organizational structure and financial 
goals of Ihe company, indicates that following the first year of approval of the petition the beneficiary would 
be performing the daily operations of the business. The business plan reflects an initial staff comprised of the 
beneficiary, three full-time drivers and one part-time driver. The plan further indicates that in the business' 
fifth year of operation the 7etitioner anticipates employing a total of eight drivers, a mechanic, an assistant, 
and a secretary. The petitioner's cash flow projections for the first four years of operation also indicate that 
the petitioner would employ a limited staff to perform the non-qualifying functions of the business during this 
period. During tfie ffirst two years of operation, the petitioner budgeted salaries for the beneficiary and 
drivers, and i<ncluded conipensation for professional services. The petitioner does not account for salaries to 
be paid to any additional subordinate workers, such as a manager, administrative secretary or assistant, during 
any of the fo~r years of projected cash flow. The evidence therefore supports a finding that the beneficiary 
- :;loulcl continue to perform the daily non-qualifying tasks of the business follewing the first year of filing the 
:jetition. Thzse non-managerial and non-executive job duties would include handling the compaiy's 
..-dininistrative operations, finances, contrac:s and purchases. An employee who primarily perfcrms the tasks 
necessary to produce a product or to provide services is not considered to be employed in a managerial or 
~xecutiue~xpacity. ,Matter of Church Scientology Intemcztional, 19 I&N Dec. 593,604 (Comm. 1988). , 
Additionally, the petitioner's business plan and projected cash,flow statements cast doubt on counsel's claim 
on appeal-that the beneficiary would hire a manager and office personnel to run the business during the 
beneficiary's absence. 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. &latter of 
Ho, 19 I&N Dec. at 591. If CIS fails to believe that a fact stated in the petition is true, CIS may reject that 
fact. Section 20A(b) of the Act, 8 U.S.C. 3 1154(b); see also i-lnetekhai v. Z.N.S., 876 F.2d 1218, 1220 (5th 
L'ir.1989): Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 
153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Moreover, counsel's claim on appeal that the beneficiary would manage or direct an essential function cf the 
business is not supported by the record. The tern "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, 8 U.S.C. 
?j 1101(a)(44)(A)jii). If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must 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. In 
addition, the petitioner must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating to the 
function. Here, counsel contends that the beneficiary's authority to enter into contracts for the petitioning 
organization "is an essential function within the organization." Counsel's claim of the beneficiary's limited 
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authority is clearly insufficient to substantiate the beneficiary's proposed employment as a function nianager. 
In this matter, counsel has not provided evidence that the beneficiary manages an essential function. 
Lastly, counsel notes on appeal that three petitions previously filed by the petitioner requesting L 
classification have been approved by CIS. The director's decision does not indicate whether he reviewed the 
prior approvals of the other nonirnmigrant petitions. If the previous nonimmigrant petitions were approved 
based on the same limited and unsupported assertions that are contained in the current record, the approval 
would constitute clear and gross error on the part of the director. The AAO is not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that 
my have been erroneous. See, e.g. Matter of Chu~ch Scientology International, 19 I&N Dec. at 597. It 
would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent. 
Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonirnrnigrant petitions on 
behalf of the beneficiary. the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. L.rt.). affd, 248 FF.3d 1239 (5th Clr. 
200 01, cert. denied, 122 S.Ct 5 I (2001). 
Hascd oil thr: foregoing discussion, the petitioner had failed to establish that the beneficiary would k 
emp1sy;d !)y the petitioning c~r;anizar;ion in a t~dmarikr, managerial or executive capacity. FG~ this atidit-!anal 
xason. tile hppeal will be riismnissed. 
1x1 visa petitio;? proceedings, the burden of proving eligibility for the benefit sought remains etitirely with the 
petitioner. Secrio~~ 291 of the Act, & U.S.C. 5 1361. Here, that burden has not heen met. Accord,ingly. the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.