dismissed L-1A Case: Wood Flooring

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Pmfc COPY 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: EAC 07 103 5 1503 Office: VERMONT SERVICE CENTER 
 Date: AU6 0 1 2m 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 07 103 5 1503 
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 nonimrnigrant petition seeking to employ the beneficiary in the position of managing 
director to open a new office in the United States as an L-1A nonimmigrant intracompany transferee pursuant 
to section 10 1(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1 10 1 (a)(15)(L). The 
petitioner, a limited liability company organized under the laws of the State of Texas, is allegedly in the wood 
flooring business. 
The director denied the petition concluding that the petitioner failed to establish that the United States 
operation will support an executive or managerial position 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 petitioner has established 
that the beneficiary will perform qualifying duties within one year of petition approval. Counsel further 
argues that the director's denial of the petition was "premature" given that a second Request for Evidence 
pertaining to the ownership and control of both the foreign employer and the petitioner had been issued only 
five days prior to the decision denying the petition. Counsel also submits on appeal an "amended" business 
plan addressing the proposed staffing of the United States operation. 
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. 8 214.2(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 
EAC 07 103 51503 
Page 3 
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. 
In addition, the regulation at 8 C.F.R. $ 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 (I)(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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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 07 103 5 1503 
Page 4 
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 101(a)(44)(B) of the Act, 8 U.S.C. 5 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 from higher level executives, the board 
of directors, or stockholders of the organization. 
The primary issue in this matter 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 the petition, the petitioner submitted a letter dated February 21, 2007 in which it claims that the 
United States operation will be "engaged in the marketing of wood-flooring products manufactured in Nepal" 
by the foreign employer, asserts that it will "acquir[e] an office soon," and lists its address as a post office 
box. The petitioner also submitted photos of its wood-flooring products, business cards, blank letterhead, and 
copies of letters sent to wood flooring retailers briefly introducing the petitioner's products. 
On March 13, 2007, the director requested additional evidence. The director requested, inter alia, evidence 
establishing that, within one year, the beneficiary will be relieved from performing the non-qualifying, day- 
to-day tasks necessary to the business; an organizational chart for the United States operation clearly 
specifying the beneficiary's proposed subordinates; position descriptions for the beneficiary's proposed 
subordinates, including breakdowns of the number of hours devoted to each of the proposed workers' job 
duties on a weekly basis; evidence addressing the size of the United States investment; and evidence that the 
petitioner has secured sufficient physical premises to accommodate the proposed operation. 
In response, counsel submitted a letter dated May 21, 2007. Counsel indicates that the exact job duties of the 
petitioner's proposed subordinate staff have not been established. Specifically, counsel states that "[als the 
[petitioner's] business grows and the need to hire the additional staff is business and financially justified, job 
descriptions and duties will be formalized at that time." Counsel also submitted a proposed organizational 
chart for the United States operation. The chart, which does not include job descriptions, shows the 
EAC 07 103 5 1503 
Page 5 
beneficiary reporting to a chief executive officer and directly supervising two assistant managers and a 
business development manager. Each of the subordinate "managers" is portrayed as supervising one or 
subordinate workers. Overall, the chart indicates that the petitioner will hire seven workers and one or more 
independent contractors, in adgition to the beneficiary and the chief executive officer. 
The petitioner also submitted a document described by counsel as a "detailed business plan." The business 
plan describes the United States operation as, initially, a wholesaler of imported wood flooring. The plan 
further indicates that the petitioner will "heavily market" its products to local and national retailers such as 
Home Depot and Lowes. While the plan indicates that its products will be shipped directly from Nepal to the 
customer, the petitioner claims that its operation will need a "storage facility for product samples" in addition 
to "office space." The plan projects start-up expenses of $20,800.00 and first year sales of $498,104.00. 
However, the plan does not specifically describe the petitioner's products, pricing, competitors, or marketing 
strategy and is not supported by any objective data. The plan does not include any contracts, purchase orders, 
or other documents corroborating its sales projections, and indicates that it plans to advertise its products in 
newspapers, magazines, the Yellow Pages, online, and in "fliers to be distributed in local neighborhoods." 
In addition, the petitioner submitted evidence that it received $3,967.00 via a wire transfer from abroad on 
April 2,2007 and alleges that the beneficiary brought $8,500.00 in cash with him from Nepal when he arrived 
in the United States in February 2007. 
Finally, the petitioner submitted a copy of a "commercial lease" between it and Rado Investments, Inc. for 
100 square feet of "office space" at While the petitioner submitted 
photographs of a small garage or storage facility, the petitioner did not submit evidence that it has leased this, 
or any, storage space. 
On June 15,2007, the director issued a second Request for Evidence addressing the ownership and control of 
both the foreign employer and the petitioner. The petitioner was directed to respond on or before September 
10, 2007. However, on June 20, 2007, the director denied the petition concluding that the petitioner failed to 
establish that the United States operation will support an executive or managerial position within one year. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval. Counsel further argues that the director's denial of the petition 
was "premature" because the petitioner was not given an opportunity to respond to the June 20, 2007 Request 
for Evidence. Counsel also submits on appeal an "amended" business plan further addressing the proposed 
staffing of the United States operation and the duties of the proposed subordinate employees. 
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 
EAC 07 103 51503 
Page 6 
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. $ 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 and/or 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 market/prospective 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 
would be an actual need for a manager or executive who will primarily perform qualifying duties. The 
petitioner has failed to specifically describe the beneficiary's proposed 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 establish that a sufficient investment has been made in the United States 
operation; and has failed to sufficiently describe the nature, scope, organizational structure, and financial 
goals of the new office. 8 C.F.R. $214.2(1)(3)(v)(C). 
As a threshold issue, counsel's argument that the director's decision was "premature" given the June 15, 2007 
Request for Evidence is without merit. As noted above, the director denied the petition because the petitioner 
failed to establish that it will support a managerial or executive position within one year. The director issued 
this denial after first requesting additional evidence on March 13,2007 on issues directly related to the growth 
and staffing of the United States operation. However, the June 15, 2007 Request for Evidence solely 
concerned deficiencies in the record pertaining to the ownership and control of both the petitioner and the 
EAC 07 103 51503 
Page 7 
foreign employer. As the director did not deny the petition because the petitioner failed to establish that it and 
the foreign employer share common ownership and control, the director was under no obligation to wait to 
deny the petition on other grounds which had already been fully developed through the issuance of, and 
response to, an earlier Request for Evidence. See 8 C.F.R. $ 103.2(b)(8)(iii). Accordingly, the director's 
decision was not "premature." That being said, it must be noted that the petitioner did not address the 
deficiencies noted by the director in the June 15,2007 Request for Evidence in its appeal. The non-existence 
or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. $ 103.2@)(2)(i). 
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@)(14). 
Furthermore, it must also be noted that the petitioner's submission on appeal of an "amended" business plan 
addressing, for the first time, the proposed duties of the petitioner's projected workforce will not be 
considered by the AAO. The regulation states that the petitioner shall submit additional evidence as the 
director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established, as of the time 
the petition is filed. See 8 C.F.R. $9 103.2(b)(8) and (12). As noted above, the 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@)(14). Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time 
on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). 
In this matter, the director specifically requested evidence establishing that, within one year, the beneficiary 
will be relieved from performing the non-quali~ng, day-to-day tasks necessary to the business and position 
descriptions for the beneficiary's proposed subordinates, including breakdowns of the number of hours 
devoted to each of the proposed workers' job duties on a weekly basis. However, the petitioner did not submit 
this evidence.in response to the Request for Evidence. Counsel notes only that job descriptions and duties 
"will be formalized" as the business grows and additional staff become needed. Accordingly, if the petitioner 
had wanted the "amended" business plan to be considered, it should have submitted this evidence in response 
to the director's March 13, 2007 Request for Evidence. Id. Under the circumstances, the AAO need not and 
does not consider the sufficiency of the evidence submitted on appeal, and the appeal will be adjudicated 
based on the record of proceeding before the director. 
In view of the above, and as correctly noted by the director, the record fails to establish that 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. § 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 failed to specifically describe the proposed job duties of both the beneficiary 
and the petitioner's projected workforce even though this evidence was requested by the director in the March 
13,2007 Request for Evidence. Once again, the failure to submit requested evidence that precludes a material 
EAC 07 103 5 1503 
Page 8 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. $ 103.2@)(14). The fact that the petitioner 
has given the beneficiary a managerial or executive title 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 (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). 
For similar reasons, 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-qualifying tasks inherent to the operation of the business 
by a subordinate staff. While the petitioner claims that it will hire seven additional employees during its first 
year in business, the petitioner has failed to establish that it will truly be able to hire these workers and, even 
if it could, that these workers will relieve the beneficiary of the need to primarily perform non-qualifying 
tasks. As noted above, the petitioner failed to specifically describe the proposed duties of the projected 
employees and, thus, it is impossible to discern whether these projected workers will relieve the beneficiary of 
the need to primarily perform non-qualifying tasks. Furthermore, the petitioner's "business plan" vaguely 
describes the proposed United States operation as a wood flooring business which will market, sell, and 
distribute the petitioning organization's products. However, the plan and associated financial projections are 
entirely unsupported by evidence. The record does not specifically describe the operation's marketing 
strategy and does not contain any purchase orders or contracts. The only evidence of the petitioner having 
any funds is an uncorroborated assertion that the beneficiary carried $8,500.00 in cash when he traveled from 
Nepal and a bank document indicating that the petitioner received approximately $4,000.00 by wire transfer 
after the filing of the instant petition. Finally, the business plan does not clearly explain what, exactly, the 
petitioner will import and in what quantities or how the products will be transported. 
Accordingly, the petitioner's claim that its newly formed operation will hire seven or more workers who will 
relieve the beneficiary of the need to primarily perform non-qualifying tasks is not credible and is not 
supported by any evidence. Once again, 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. Simply alleging that the petitioner will hire seven employees who will perform 
all the non-qualifying tasks inherent to the business 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 an 
employee 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 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. 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 (Comm. 1988). 
EAC 07 103 5 1503 
Page 9 
Furthermore, even assuming that the petitioner will have the ability to hire the workforce proposed in the 
petition, the record is not persuasive in establishing that the beneficiary will supervise and control the work of 
other supervisory, managerial, or professional employees. As noted above, the petitioner failed to specifically 
describe the duties of the projected subordinate employees. An employee will not be considered to be a 
supervisor simply because of a job title, because he or she is arbitrarily placed on an organizational chart in a 
position superior to another employee, or even because he or she supervises daily work activities and 
assignments. Rather, the employee must be shown to possess some significant degree of control or authority 
over the employment of subordinates. See generally Browne v. Signal Mountain Nurseiy, L.P., 286 
F.Supp.2d 904, 907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. 
Tex. Jan. 11, 2007)). Given the size and nature of the vaguely described wood flooring business, it is 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 (gth Cir. 2006). 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. A managerial or executive employee 
must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor. 
See 10l(a)(44) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604.' 
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 it failed to establish that a sufficient investment was made in the 
enterprise. 8 C.F.R. $ 214.2(1)(3)(v)(C)(2). In this matter, the petitioner projects start-up expenses of 
$20,800.00. While the petitioner projects first year sales of $498,104.00, the record is devoid of evidence 
supporting this projection. In addition, the petitioner submitted evidence that it received $3,967.00 via a wire 
transfer from abroad on April 2, 2007 and alleges that the beneficiary brought $8,500.00 in cash with him 
from Nepal when he arrived in the United States in February 2007. However, the record is not persuasive in 
establishing that the petitioner has received a sufficient investment to support the start-up of the new office. 
First, the record is devoid of evidence establishing that the petitioner presently has any assets. The record is 
1 
It is noted that, even if the AAO considered the "amended" business plan submitted on appeal, the 
descriptions of the duties of the proposed employees are not persuasive in establishing that the petitioner will 
support a primarily managerial or executive employee within one year. First, as explained above, the record 
does not credibly establish that the petitioner will be able to employ any of the proposed subordinate 
employees. Second, the job descriptions included in the "amended" business plan fail to persuasively 
establish that these employees will relieve the beneficiary of the need to primarily perform non-qualifying 
tasks or that any of these employees will truly be a supervisory, managerial, or professional worker. To the 
contrary, given the size and nature of the proposed United States operation, it is more likely than not that the 
beneficiary and his staff will be performing the non-qualifying tasks inherent to a wood flooring wholesale 
business and that the beneficiary will be, at most, a first-line supervisor of non-professional employees. 
EAC 07 103 5 1503 
Page 10 
devoid of any objective evidence verifying the petitioner's current possession of $8,500.00. Once again, 
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. Moreover, 
the petitioner's receipt of a $3,967.00 investment almost one month after the filing of the instant petition is not 
relevant to the instant matter. 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). 
Second, even if the petitioner established that it received the above investments, it is not credible that 
approximately $12,500.00 would be sufficient to establish the wood flooring enterprise vaguely described in 
the petition. As noted above, the petitioner projects $20,800.00 in start-up expenses alone, and the record is 
devoid of evidence that the petitioner will soon begin generating significant revenues. 
Accordingly, as the petitioner has failed to establish that it has received a sufficient investment, the petition 
may not be approved for this additional reason. 
Third, 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. § 214.2(1)(3)(v)(C)(I). As explained above, the petitioner 
vaguely describes the United States operation as a wood flooring business which will market and sell the 
petitioning organization's products. However, the plan and associated financial projections are entirely 
unsupported by evidence. The record does not specifically describe the operation's marketing strategy, and 
the petitioner fails to submit evidence of having established any business relationships. It is unclear. what, 
exactly, the petitioner will import and in what quantities, where samples will be stored, how the products will 
be transported, and whether Home Depot or Lowes are actually interested in buying the petitioner's products. 
The record does not contain any independent analysis, contracts, or lists of business contacts. Absent a 
detailed, credible description of the petitioner's proposed United States business operation specifically 
addressing the petitioner's proposed products, marketing plan, and customers, it is impossible to conclude that 
the proposed enterprise will likely succeed and rapidly expand as it moves away Erom the developmental 
stage to full operations, where there would be an actual need for a manager or executive who will primarily 
perform qualifLing duties. 
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. 8 214.2(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. 8 214.2(1)(3)(v)(A). 
In support of its petition, the petitioner submitted a letter dated February 21, 2007 in which it asserts that it 
will "acquir[e] an office soon" and lists its address as a post office box. In response to the director's March 
13,2007 Request for Evidence, the petitioner submitted a copy of a document titled "commercial lease" dated 
February 19,2007 for the lease of 100 square feet of "office space" located at :- 
Texas. According to the photographs, the 100 square feet of office space appears to be located inside a 
EAC 07 103 5 1503 
Page 11 
laundromat. The petitioner also claims in its business plan that its operation will need a "storage facility for 
product samples" in addition to "office space." While the petitioner submitted photographs of a small garage 
or storage facility, the petitioner did not submit evidence that it has secured the right to use this, or any, 
storage space in response to the director's Request for Evidence which specifically addressed whether the 
petitioner had secured premises sufficient to accommodate a wood flooring business. On appeal, the 
petitioner submitted a document titled "rental agreement" dated March 15, 2007 which appears to govern the 
lease of a 10 foot by 20 foot storage area in Arlington, Texas. 
Upon review, the petitioner has failed to establish that it has secured sufficient physical premises to house the 
new office for several reasons. First, the record is not persuasive in establishing that the lease dated February 
19,2007 for 100 square feet of "office space" located at -is a bona fide 
lease. As noted above, the petitioner claimed in a letter dated February 21, 2007, which was submitted with 
the initial petition filed on March 1,2007, that it will "acquir[e] an office soon." However, in response to the 
director's Request for Evidence, the petitioner submitted a copy of the 1601 Cooper Street lease which is 
dated prior to both the February 21, 2007 letter and the filing date of the Form 1-129. The petitioner offers no 
explanation for why the existence of this lease was not initially disclosed. 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 Ha, 19 I&N Dec. 582, 591-92 (BIA 1988). Therefore, it does not 
appear that the lease is a valid lease of commercial space. 
Second, even if the February 19, 2007 lease was established to be a bona fide lease, it is not credible that 100 
square feet of "office space" located in a laundromat would be sufficient to permit the proposed United States 
operation, a wood flooring business projected to employ a total of nine people within one year, to 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. 
Third, as noted above, the petitioner claims that its operation will need a "storage facility for product samples" 
in addition to "office space." However, the petitioner failed to submit evidence that it has secured sufficient 
storage space for its samples. Once again, 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. In addition, the "rental agreement" dated March 15,2007, which was submitted 
on appeal, is not persuasive in establishing that the petitioner has secured adequate storage space. This 
agreement is dated two weeks after the filing of the instant petition and was not submitted in response to the 
director's Request for Evidence. 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. The 
AAO will not accept such evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 
764. Regardless, it has not been established that a 10 foot by 20 foot storage garage would adequately house 
the petitioner's wood flooring "samples." 
Accordingly, as the petitioner has failed to establish that it has secured sufficient physical premises to house 
the new office, the petition may not be approved for this additional reason. 
EAC 07 103 5 1503 
Page 12 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been 
"employed" in a primarily managerial or executive capacity with the foreign entity for one year within the 
preceding three years. 8 C.F.R. $5 214.2(1)(3)(iii) and 214.2(1)(3)(v)(B). 
In support of the petition, the petitioner described the beneficiary's duties abroad in a resume as follows: 
Procurement of raw Materials. 
Supervised production and staff on a daily basis 
Human Resource Management which include 35 employees 
Created and enforced the marketing and sale policy of the entire company 
Market research for demand and product design 
Inspected and enforce quality control upon production 
Involved with Daily Accounting 
Responsible for providing documentation to the government 
Responsible for approval of denial sales contract 
Created and successfully established the company from ground up 
The petitioner also submitted an organizational chart for the foreign employer showing the beneficiary at the 
top of the organization supervising directly and indirectly 34 employees. However, the petitioner does not 
describe the duties of any of these subordinate workers in Nepal. 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
primarily managerial or executive capacity. In support of the petition, the petitioner provided a vague and 
non-specific description of the beneficiary's claimed duties abroad which fails to establish what, exactly, the 
beneficiary did on a day-to-day basis. 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, aff'd, 905 F.2d 41. It 
appears that the beneficiary performed non-qualifying tasks, such as procuring raw materials and performing 
market research. Also, the petitioner failed to describe the duties of the beneficiary's subordinate workers 
abroad. Absent detailed descriptions of the duties of both the beneficiary and his purported subordinates, it is 
impossible for CIS to discern whether the beneficiary was "primarily" engaged in performing managerial or 
executive duties abroad. See sections lOl(a)(44)(A) and (B) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary has been employed in a primarily 
managerial or executive capacity for one continuous year in the three years preceding the filing of the 
petition, and the petition may not be approved for this reason. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
.used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. $214.2(1)(3)(vii). 
EAC 07 103 51503 
Page 13 
In this matter, the petitioner claims that it is owned and controlled by the foreign employer which is owned by 
the beneficiary. As a purported owner of the petitioning organization, the petitioner is obligated to establish 
that the beneficiary's services will be used for a temporary period and that he will be transferred to an 
assignment abroad upon completion of the assignment. Id. However, the record is devoid of any evidence 
establishing that the beneficiary's services will be used temporarily. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 1 90). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that the foreign employer is or will be 
"doing business" and, thus, has failed to establish that the foreign employer is a qualifying organization. 
The regulation at 8 C.F.R. $ 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. $ 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing 
business." "Doing business" is defined in part as "the regular, systematic, and continuous provision of goods 
andlor services." 
In this matter, the petitioner asserts that the foreign employer is a sole proprietorship owned and operated by 
the beneficiary. However, the petitioner has not submitted any evidence to establish that the foreign sole 
proprietorship continues to do business, as required at 8 C.F.R. $ 214.2(1)(l)(ii)(G)(2). Unlike a corporation, 
a sole proprietorship does not exist as an entity apart from the individual owner. Matter of United Investment 
Group, 19 I&N Dec. 248 (Comm. 1984). A sole proprietorship is a business in which one person owns all of 
the assets and operates the business in his or her personal capacity. Black's Law Dictionary 1398 (7th 
Edition). As the petitioner claims that the beneficiary is the owner and sole proprietor of the foreign business, 
the presence of the beneficiary in the United States raises the question of whether the foreign business 
continues to do business abroad. The lack of current evidence leads the AAO to conclude that the foreign 
sole proprietorship is no longer doing business and, thus, is not a qualifying organization. 
Furthermore, the petitioner indicates that the beneficiary has been employed by a government industry called 
Biratnagar Jute Mills, Ltd. since July 2006. This further undermines the petitioner's claim that the foreign 
employer is currently doing business. It is not credible that the foreign employer, which is allegedly owned 
and operated by the beneficiary as a sole proprietorship, could continue to do business as defined by the 
regulations while the beneficiary was employed elsewhere for almost nine months prior to his departure for 
the United States. 
Accordingly, as the petitioner has failed to establish that the foreign employer is or will be "doing business," 
EAC 07 103 5 1503 
Page 14 
it has failed to establish that the foreign employer is a qualifying organization, and 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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (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, Inc., 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. 9 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.