dismissed L-1A Case: Wholesale Trade

US. Department of Homebd !Security 
U.S. Citizenship and Immigration Services 
Of$ce of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
u. S. Citizenship 
and Immigration 
Semces 
FILE: WAC 08 12 1 50657 Office: CALIFORNIA SERVICE CENTER Date: JUL 0 1 2009 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 1 0 1 (a)( 1 5)(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 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. 5 103.5 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, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
hn F. Grissom 
cting Chief, Administrative Appeals Office 
WAC 08 121 50657 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-IA 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(] 5)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a Michigan limited liability company, states that it is 
involved in wholesale trade and international commerce. It claims to be an affiliate of Ultraflex EIRL, located 
in Lima, Peru. The petitioner states that it has employed the beneficiary since 2001 and now seeks to extend 
his L-1 A status. 
1 
The director denied the petition on two independent grounds, concluding that the petitioner failed to establish 
(1) that the beneficiary will be employed in a primarily managerial or executive capacity under the extended 
petition; and (2) that the petitioner and the beneficiary's previous employer have a qualifying relationship. 
On appeal, counsel asserts that the petitioner submitted sufficient evidence related to the beneficiary's job 
duties and role within the company to establish eligibility for L-1A status. The petitioner submits a more 
detailed description of the beneficiary's position in support of the appeal, along with additional evidence 
related to the qualifying relationship between the petitioner and its Peruvian afiliate. 
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 qualifiing organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. 4 214.2(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. 
I 
 USCIS records indicate that the beneficiary was previously granted L-1A status from June 10, 2002 until 
November 30, 2002 (LIN 02 041 59592); from December 1, 2002 until November 30, 2004 (LIN 03 045 
54099); and from November 7,2007 until March 3 1,2008 (EAC 07 159 53634). 
WAC 08 121 50657 
Page 3 
(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. 
The first issue to be addressed is whether the petitioner established that the beneficiary will be employed in a 
primarily managerial or executive capacity under the extended petition. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. $ 1 101(a)(44)(A), provides: 
The term "managerial capacity" means 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, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means 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; 
WAC 08 121 50657 
Page 4 
(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 March 24, 2008. The petitioner 
indicated on Form 1-129 that it has two employees and gross annual income of $29,258. The petitioner states 
that the beneficiary serves as president of the company and is responsible for the following: 
Manage the business in the U.S. to develop business contacts, negotiate contracts for 
importing textiles and industrial machines. Project consulting. 
The petitioner submitted a brief letter in support of the petition in which it stated that the petitioner specializes 
in importing textiles and industrial machines from Peru through a joint venture with its foreign affiliate. The 
petitioner stated that the beneficiary's duties will be to "develop business contacts, negotiate contracts for the 
sale and importation of textiles and industrial machines." 
-submitted an organizational chart indicating that the beneficiary supervises a vice president, 
According to the petitioner's payroll records, the 
companv paid a total of $3,600 to the comptroller in 2007. The record does not contain any evidence of 
who is also listed as vice president on the foreign entity's organizational chart. 
The petitioner also submitted evidence of two agreements the petitioner executed in 2005, including an 
agreement with Ralco International, Inc., which agreed to use the petitioner's sewices "to broker consulting 
projects in Peru," and an agreement with Traders USA of Miami, Inc. for "procurement of contracts in Peru 
for a specified percent commission." The petitioner also submitted evidence that it has received payments 
from individuals and businesses for "cleaning." 
The director issued a request for additional evidence (RFE) on May 2, 2008, instructing the petitioner to 
submit, inter alia, the following: (1) a detailed, specific description of the beneficiary's duties in the United 
States and the percentage of time he allocates to each of the listed duties; (2) clarification regarding the nature 
of the U.S. business in light of evidence suggesting that the petitioner is engaged in cleaning services; (3) a 
detailed organizational chart for the U.S. company clearly identifLing the names, job titles, job duties and 
educational level of all employees subordinate to the beneficiary; and (4) evidence of wages paid to 
employees in the form of a payroll summary and Forms W-2 and W-3. 
In response to the director's request, the beneficiary submitted a statement in which he sought to clarifL the 
nature of his duties and the petitioner's business activities. Specifically, the beneficiary stated: 
[The petitioner] began operations in 2002 and they actually work an [sic] international broker 
as a Eng.[sic] [The beneficiary] is a Chemical Engineer specializing in organic chemical 
products, he works in a project to use organic products to protect the environment. . . . Refer 
to cleaning company, [the beneficiary] research and development organic cleaning products 
WAC 08 12 1 50657 
' Page 5 
line. We are not a cleaning company, as alleged in the RFE, but part of our business is 
industrial cleaning chemical agents. 
That I am in the United States to try to get my U.S. business off the ground and to have it 
become an established company. The purpose of the company is for me to act as a 
brokerlagent for other companies to establish trade agreements between companies in both 
 . 
counties [sic]. . . . The trade is intended primarily to be industrial chemicals and other 
products. I anticipate this will take about two years before I am established enough in the 
U.S. to allow others to take over the responsibility. . . . 
That once I get the business more established, that I will bring in other employees to help 
manage the business for me in the United States. 
There are no sales invoices per se for [the petitioner] but I have contracts with U.S. 
companies to act as their broker. I have no phone number for [the petitioner] as it is the 
same as my personal phone number. I don't advertise as I am part of a referral network and 
the local Chamber of Commerce. 
. . . I buy organic cleaning products for resale, some of which involve industrial cleaning, 
and that in addition I am acting as an agent for other parties to develop other trade between 
the U.S. and Peru. 
The beneficiary stated that the petitioner's current projects include developing arrangements for the export of 
electric cars and solar panels to Peru. 
The petitioner submitted a copy of the beneficiary's 2007 Form 1040, U.S. Individual Income Tax Return, and 
Schedule C, Profit or Loss From Business. The petitioning company had gross receipts or sales of $17,619 in 
2007 and paid a total of $3,600 in wages. The petitioner also submitted additional evidence of its business 
activities dating back to 2002. 
The director denied the petition on October 21, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity. In denying the petition, the 
director found that the beneficiary's claimed duties are too broad and nonspecific to convey any understanding 
of the beneficiary's actual, day-to-day activities. The director further observed that the petitioner did not 
establish that the beneficiary would be primarily supervising a subordinate staff of professional, managerial or 
supervisory personnel, or that he will be relieved of having to perform non-qualifying duties associated with 
operating the business. 
On appeal, counsel for the petitioner states that "provided in the application and response to the NOID were 
several documents supporting the work that [the beneficiary] does on behalf of the company, such as 
negotiating contracts, making business contacts." Specifically, counsel asserts that the petitioner provided 
evidence of the beneficiary's involvement with the Ann Arbor Chamber of Commerce and leadership 
seminars, and his efforts to develop new contacts and business opportunities, such as his attendance at a trade 
show involving Michigan-based companies that develop electric cars and solar panels. Counsel emphasizes 
WAC 08 121 50657 
Page 6 
that the size of the petitioning company is irrelevant to a determination as to whether the beneficiary will be 
employed in a managerial or executive capacity. Counsel also contends that the beneficiary supervises one 
full-time employee and one part-time employee as of December 2008, and states that "once the business gets 
going, there would be anticipated additional hiring." Counsel asserts that the beneficiary uses his specialized 
knowledge to "evaluate business products, some of which involve complex issues, such as evaluating the 
technology behind the solar batteries, cars and panels." 
The beneficiary also submits a statement outlining the duties he performs on a daily basis and the amount of 
time he devotes to each area of responsibilities, as follows: 
Internet - 2 hours - emailing clients and potential clients/vendors researching products and 
business opportunities and potential areas for expansion. 
Organic Products Cleaning - 4 hours - I buy and sell these industrial organic cleaning 
products for which I am a middleman supplier. . . . 
International Calls Customer - 2 hours - phone calls to clients/vendors and potential clients 
and my company in Peru. 
New Projects - 2 hours - This includes attending trade shows at times and making contact 
with potential suppliers and vendors for products such as electrical cars. . . and solar panels 
that are manufactured in Michigan . . . . 
Newspaper International Internet - 1 hour - keeping in touch with Peruvian business news 
and events and U.S. business news that may affect my business 
Budget - 1 hour 
The beneficiary indicates that he spends eight hours per week spending time networking with other members 
of the Ann Arbor Chamber of Commerce. The beneficiary states that he supervises "one and onelhalf' 
employees. 
Counsel submits a separate statement regarding the beneficiary's duties in which he states that the beneficiary: 
negotiates all contracts with clients, vendors and suppliers; oversees and manages logistics that require special 
services; manages vendors' invoices for clients at their request; interviews, hires and contracts employees; 
approves background checks for clients, employees and contractors; oversees prices, price valuations and 
credit terms with existing customers; develops new customers for trade between U.S. and Peruvian 
companies; and interacts with existing customers, including assisting with questions regarding their accounts, 
company technology, technical updates and problem solving. 
Subsequent to filing the brief in support of the appeal, the petitioner submitted evidence that the petitioner has 
been approved as a sales representative for GreenGo Tek LLC products in Peru, under which the petitioner is 
responsible for securing sales purchase orders for a 5% sales commission. The confirmation letter from 
GreenGo Tek is dated February 4,2009. 
WAC 08 12 1 50657 
Page 7 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary 
would be employed in a primarily managerial or executive capacity under the extended 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. 4 214.2(1)(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 
either in an executive or managerial capacity. Id. 
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 hnctions. Champion World Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). While the AAO does not doubt that the beneficiary 
exercises discretion over the petitioner's business as its owner, president and apparently only full-time 
employee, the totality of the evidence submitted does not demonstrate that the beneficiary's actual duties will 
be primarily managerial or executive in nature. 
As noted by the director, the position description submitted at the time of filing and in response to the RFE 
was overly general and failed to identi6 the specific duties the beneficiary would perform on a day-to-day 
basis that would qualify as managerial or executive in nature. Duties such as "manage the business," 
"develop business contacts," "negotiate contracts," and "project consulting" do not suggest that the 
beneficiary spends the majority of his time performing managerial or executive duties. Specifics are clearly 
an important indication of whether a beneficiary's duties are primarily executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. Cir. 1990). 
Accordingly, the director specifically requested a detailed position description listing the beneficiary's 
specific duties and the percentage of time the beneficiary devotes to each task on a weekly basis. The 
statement of duties submitted in response to the RFE fell significantly short of providing the requested level 
of specificity. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. fj 103.2(b)(14). Furthermore, the limited information provided suggests that 
the beneficiary is directly providing the services of the company, rather than performing primarily managerial 
or executive duties. For example, the beneficiary stated that "the purpose of the company is for me to act as a 
brokerlagent for other companies," and he anticipates that he is still trying to establish the business before 
hiring additional employees. He also stated that he personally buys and sells cleaning products. An employee 
who "primarily" perfonns 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 Intn 'l., 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner filed a new oflice L-IA petition on behalf of the beneficiary in 2002. The one-year "new 
office" provision is an accommodation for newly established enterprises, provided for by USCIS regulation, 
that allows for a more lenient treatment of managers or executives that are entering the United States to open 
a new office. When a new business is established and commences operations, the regulations recognize that a 
WAC 08 121 50657 
Page 8 
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. However, the regulation at 8 C.F.R. $ 
2 14.2(1)(3)(v)(C) allows the intended United States operation only one year within the date of approval of the 
petition to support an executive or managerial position. 
Here, six years have passed since the filing of the new office petition and the petitioner indicates that it will 
require two more years to establish the company and reach the point at which it will hire staff to relieve the 
beneficiary from personally performing essentially all duties associated with operating the company. The 
petition cannot be approved based on the petitioner's speculation that the company will thrive and hire 
employees in the future. The petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
The position description submitted by the beneficiary on appeal confirms that he devotes the majority of his 
time to non-qualifying duties such as market and product research, purchasing and sales activities, marketing 
and promoting the petitioner's services to potential vendors and buyers, and serving as an agent or broker for 
other companies once agreements are reached. Although the petitioner claims to employ one full-time and one 
part-time employee who work under the beneficiary's supervision, the record is devoid of any evidence of 
wages paid to employees in 2008. It appears that the beneficiary's spouse worked for the company on a part- 
time basis in 2007, but her duties have not been described. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). All business correspondence submitted indicates that the beneficiary is directly responsible 
for performing the services of the company, and he appears to be the only company contact for all business 
purposes. Again, 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 10 l(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 Int 'I., 19 I&N Dec. 593,604 (Comm. 1988). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10 1 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F .R. 5 2 14.2(1)(l)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 5 214.2(1)(1)(ii)(B)(3). The director determined that the 
beneficiary will not be supervising a staff of supervisory, professional or managerial employees and the 
petitioner has not submitted evidence on appeal to overcome this determination. 
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 
WAC 08 121 50657 
" Page 9 
organization. See section 10 1(a)(44)(A)(ii) of the Act, 8 U.S.C. $ 1 10 l(a)(44)(A)(ii). 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. 5 2 14.2(1)(3)(ii). 
In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary manages an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial, and in fact the record 
shows that the beneficiary personally performs purchasing, research, sales and marketing tasks. 
While performing non-qualifying tasks necessary to produce a product or service will not automatically 
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner 
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive 
duties. Section lOl(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" manager turns in 
part on whether the petitioner has sustained its burden of proving that his duties are "primarily" managerial. 
Counsel correctly observes 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 5 101(a)(44)(C) of the Act, 8 U.S.C. 4 1 101 (a)(44)(C). 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, 13 16 (9th Cir. 2006) 
(citing with approval Republic of Transkei v, INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedzn Bros. Co. v. 
Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003)). Furthermore, 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. Sysrronics Corp. v. INS, 153 F. 
Supp. 2d 7, IS (D.D.C. 2001). 
The petitioner is a six-year-old company that claims to be engaged in international brokerage services and the 
purchase and re-sale of organic cleaning products. It employs the beneficiary as its president and perhaps a 
part-time employee whose duties have not been described. The record shows that the company's primary 
functions of buying and selling cleaning products, market and product research, and identifying U.S. suppliers 
and overseas buyers, and marketing U.S. products overseas, are performed by the beneficiary. It is reasonable 
to conclude, and has not been shown otherwise, that these duties would require the majority of the 
beneficiary's time in order for the business to remain viable. 
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 
I01 (a)(44)(A) and (B) of the Act, 8 U.S.C. 8 1 10 1 (a)(44). The reasonable needs of the petitioner may justifL 
WAC 08 121 50657 
' Page 10 
a beneficiary who allocates 5 1 percent of his 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. A review of the totality of the record fails to establish that the petitioner has a reasonable need for the 
beneficiary to perform primarily managerial or executive duties at its current stage of development. 
The AAO does not dispute that small companies require leaders or individuals who plan, formulate, direct, 
manage, oversee and coordinate activities; however the petitioner must establish with specificity that the 
beneficiary's duties comprise primarily managerial or executive responsibiiities and not routine operational or 
administrative tasks. The fact that the beneficiary manages a business, regardless of its size, does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 
1987)(noting that section 101(a)(15)(L) of the Act does not include any and every type of "manager" or 
"executive"). Here, therecord fails to establish that the majority of the beneficiary's duties will be primarily 
directing the management of the organization or a component or function of the organization. 
Even though the enterprise is in a preliminary stage of organizational development and anticipates additional 
growth, the petitioner is not relieved from meeting the statutory requirements. Again, a visa petition may not 
be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). In the instant matter, the petitioner has not reached the point 
that it can employ the beneficiary in a predominantly managerial or executive position. For this reason, the 
appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner has established that the United States and 
foreign entities are still qualifying organizations, as required by 8 C.F.R. 3 214.2(1)(14)(ii). To establish the 
requisite "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. one entity with 
''branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 
lOl(a)(15)(L) of the Act; 8 C.F.R. 3 214.2(1). 
The petitioner claims that the foreign entity and the U.S. company are affiliates as they are both wholly- 
owned and controlled by the beneficiary. The initial evidence, which including the petitioner's operating 
agreement, the beneficiary's 2006 and 2007 individual income tax returns, and the foreign entity's business 
registration, indicated that the beneficiary owns both entities. The director requested evidence that the 
beneficiary actually paid $30,000 for his interest in the U.S. company as stated in its operating agreement, and 
ultimately denied the petition solely based on the petitioner's failure to provide this evidence. 
Upon review, the AAO notes that the petitioner's response to the RFE did include a copy of a wire transfer 
notification indicating the transfer of $35,000 from a Peruvian account into the petitioner's bank account. This 
evidence appears to have been overlooked by the director. The AAO finds that, upon review of the totality of 
the evidence submitted, the petitioner has established the claimed affiliate relationship between the U.S. and 
foreign entities. The director's decision with respect to this issue alone will be withdrawn. 
WAC 08 121 50657 
Page 11 
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. fj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.