dismissed EB-1C Case: Business Development And Consulting

(b)(6)
DATE: 
DEC 0 5 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Departinellt of Homeland Security 
U. S. Citizenship and lnlmlgration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529 ~ 2090 
U.S. Cit~enship 
and. ImnU.gration 
Services · 
OFFICE: TEXAS SERVICE CENTER FILE: 
PETITION: Im.migt~l)t :Petition for Alien Wor~e~; 4:s ~ Ml1ltitul.ti<'>n.al Ex~crutive ot Manager PArSifarit to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § ll53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in. your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor est<l.blish agency 
policy through non"prece<,lent decisions. If you believe the AAO i'ncortectly applied current law or policy to 
YO!Jr case orif you seek to present new facts for consideration, you may file a motion to reconsider or a motion 
to reopen, respectiVely. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 
days of the date of this decision. Please review the Form I-290B instructions at hth!://~w-\V.uscis.gov/forms 
for the latest information ~n fee, filing location, and other requirements. See also 8 C.F.R § 103.5. Do 
not file a motion directly with the AAO. 
thank you, 
A~ 
Chief, Administrative Appeals Office 
nw.u"scis .. gov 
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Page2 
DISCUSSION: The Director, Texas Service Center denied the employment-based immigrant visa 
petition and dismissed the petitioner's subsequent motion to reopen and reconsider. The matter is now 
before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation engaged irt business development and legal consulting services. 
It seeks to employ the bep.eficiary as its Director of U.S. Operations. Accordingly, the petitioner 
endeavors to Classify the beneficiary as an em.ployment-"based immigrant pursuant to section 
203(b)(l)(C) of the Iinmigtation artd Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary's 
proposed U.S. employment would be in a qualifying managerial or executive capacity. The director 
also found that the petitioner failed to establish a qualifying relationship wit}). the foreign employer. 
The director dismissed. the petitioner's subsequent motiorr'to reopen artd reconsider, finding that the 
·· evidence submitted on motion did not overcome his determination that the petitioner failed to 
estabHsb that it will ernploy the beneficiary in a qualifying managerial or executive capacity. 
However, the director determined that the petitioner's evidence submitted on motion, which included 
amended federal income tax returns, was sufficient to establish that it has a qualifying affiliate 
relatiqnship with the beneficiary's foreign employer. 
On appeal, counsel disputes the director's 'fmdings and provides an appellate brief laying out the 
grounds for challenging the denial. · ; 
I. The Law 
Section 203(b) of the Act states in pertinent part: / 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years 
preceding the time of the alien's applicatio11 for class_ification and 
admission into tbe U11ited States under this subparagraph, has 
been employed for at least 1 year by a firm or corporation or 
other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate 
thereof in a capacity 
that is managerial or .executive. 
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Page 3 
The language of the statute is specific in limiting this provision to only those executives and managers 
who have previously worked for the firm, corporation or other legal entity, ot an affiliate ot subsidiary 
of th~Jt entity, a.nd are coming to the United States to work for the same entity, or its affiliate or 
subsidiary. 
A United States employer may file a petition on Form I-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multi_national executive or manager. No labor certification is required for 
this classification. The prospective employer in the United States must furnish a job offer in the form 
of a statement that indicates that the alien is to be employed in the United States in a managerial or 
e._xecut_ive ~_apacity. Such a statement must 9learly describe the duties to be performed by the alien. 
See 8 C.F.R. § 204.5(j)(5). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organi~ation, or a depmment, subdivision, function, or 
component of the organization; 
(i_i) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential furtction 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, functio11s at a senior level Within, the 
organizational hierarchy or with respect to the function managed; and 
(iv) exercises dis~retion over the day-to-day operations of th~ activity or 
function for which the employee has authority. A first-line supervisor is 
not considered to be acting in a m.anageriaJ capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
eiilployee primari_ly--
(i) directs the management of the organization or a major component or 
function of the. organization; 
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NON-PRECEDENT DECISION 
(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. 
II. The Issue on Appeal 
The sole issue addressed by the director is whether the petitioner established that it would employ the 
beneficiary in a qualifying managerial or executive capacity. 
A. Facts 
The petitioner indicated on the Form I-140, Immigrant Petition for Alien Worker, that it is engaged in 
business d,eveloproent ~d legal consulting services with four employees and a gross annt1al income of· 
$381,963. The petitioner states that it wishes to employ the beneficiary as its Director of U.S. 
Operations. In a letter submitted in support of the initial petition, the petitioner explained that, most 
recently, the company focused on "import and representation services'' for the importation of beach · 
pebbles and mosaics l!Sed in private and COmii1erciallandscape projects. The petitioner stated that the 
beijeficiary was granted to authority to "reinvest [profits] and recruit the personnel requited to develop 
a plan of growth." \ 
Specifically, the petitioner stated that the beneficiary will be responsible for the following duties: (1) 
directLng and coordinating the activities of the operations department; (2) formulating administrative 
and operations policies; (3) directing and coordinating operations to obtain optimum use of facilities, 
equipmepJ, and personnel; (4) reviewing and lll.lalyzing expenditures, financial and operations reports 
to detetm:irte policies of increasing profits; (5) making contact and overseeing negotiation of contracts 
with suppliers and buyers of (6) supervising the order process, 
shipment, and compliance with customs both in the U.S. and Peru; and (7) supervising the timely 
delivery of products. 
In support of the petition, the petitioner provided, amollg other evidence, the following: a copy of its 
2010 IRS Form 1120, U.S. Corporation Income Tax Return; its organizational chart; position 
descriptions for its employees; bank statements showing that the beneficiary has control of the 
corporate accounts; copies of invoices and shareholder meeting notes showing the beneficiary's scope 
of authority; its bus~p.ess plan; copies of IRS Form 941, Employee's Quarterly Federal Tax Returns 
for 2009, 2010, and the first thte.e quarters of 2011; and copies of its Florida quarterly wage report 
filings for 2009 to 2011. , 
The petitioner's organizational chart shows the beneficiary as the director of the Miami office 
reporting to the Board of Directors in Pem. Reporting to the beneficiary is an Import Manager. 
Reporting to the Import Manager ate a sales position, an administration position, and an external 
accountant. The only employee identified by name on the chart is the a_ccountant. The chart also 
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Page 5 
depicts two unaffiliated companies -
'' ' and 
_ j as reporting to the beneficiary on a dotted-'line basis. The petitioner 
identified the division manager of each company 3.11d indicated th!it tl).ey supervise Sl!pporting staff 
comprised of accounting, administration, shipping, warehousing, sales and marketing and production 
personnel. . 
The petitioner provided position descriptions for the positions of director, .sales, "management", and 
accountant. The position description for the management position did not clearly r.elate to the import 
manager position as listed on the organizational chart and did not include any supervisory duties. The 
petitioner qid not provide a position description for the "administration" position. · 
The petitioner's Florida quarterly wage reports indiCate that it regularly employed three workers 
through the first seven months of 2011, two employees in August 2011, and four employees as of 
September 2011, 
Finally, the petitioner provided· a description of its agreements with 
The petitioner i11di~ated that processes 
and categorizes the petitioner's stones at its production facilities in Arizona and explained that issues 
related to quality control ate made directly to the beneficiary. The petitioner indicated that 
supplies the petitioner's beach pebbles to the gardening department of stores in Florida, a11d 
also receives and processes the stones at its own facilities. The petitioner stated that carries 
out its work in cootdinatiort with the beneficiary in order to ensure quality. 
The director issued a request for evidence ("RFE"). The director requested that the petitioner provide, 
among other items, evidence that the beneficiary will be employed in a qualifying capacity as a 
multinational manager. SpeCifically, the director requested a statement from the petitioner describing 
the beneficiary's duties including: (1) position title; (2) all specific daily duties; (3) percemage of time 
spent on e!).ch duty; ( 4) -an organizatiomd Ghart showing subordinate employees including job 
description, educational level, full.,.time or part-time statUS; (5) if the petitioner used contract labor, the 
number of contractors and the duties performed by each; and (6) iRS Form W-2s, Wage and Tax 
Statement, for the relevant years for each employee. 
In. response the petitioner proviqed the following documentation: (1) a company statement with a list 
of the beneficiary's duties and the percentage of time spent performing each; (2) organizational chart 
showing all subordinates as well as brief descriptions of their duties; (3) a diploma for a subordinate; 
(4) IRS Forms W-2 for all employees for the past two years; (5) shareholder meeting notes showing 
the scope of the beneficiary's authority; (6) copies of letters from the petitioner's distributor and 
production companies stating the beneficiary is the director for the purposes of all business dealing; 
and (7) copies of tax returns signed by the beneficiary as director of the company. 
The petitioner's letter stated that the beneficiary performs the following duties as Director of U.S. 
Operations: 
Direct and supervise the employee's performance.- 50% 
(b)(6)
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Direct the company's finances.- 20% 
Project the company growth, pointing out their goals and aims . .,. 5% 
Plan and program the company activities, according to projections for growth. - 10% 
Approve and sign: financial statements, annual income tax, etc. - 5% · 
Report periodically to the headquarters in Peru . ., 5% 
Other duties - 5% 
Tb~ petitioner also provided the requested organizational chart. The chart showed the beneficiary as 
director of the Miami office reporting to the board of directors in Peru. Four positions were shown 
reporting directly to the beneficiary: import, administration, sales, and accountant. The positions of .. 
import and account were listed as ;'Professional Level'' and the position,s of administration and sales 
were listed as "Technical LeveL" I The position of accountant was shown reporting With a dotted line, 
suggesting that this is a c.ontracted employee. 
The petitioner not~<J. th;it a.H positions were full time, I but added a footnote that the positions of import, 
administration, and sales may be part time due to "market fluctuations'' occurring from January to 
June. The petitioner did not provide the names of 'the employees filling each of the positions as 
requested. The petitioner provided a copy of a diplo111a for ® employee, · bu,t did not specify which 
position the employee fills. 
The petitioner provided position descriptions for all of the subordinate positions. The duties for the 
"professional level" import position were as follows: (1) coordinate with the sales area any purchase 
orders placed by the company's clients; (2) place purchase orders; (3) make cargo reservations wi_th 
shipping companies and coordinate payment of ocean freights; (4)coordro~;J.te with suppliers the types 
of pl;lCkl;lging as well as Shipping dateS; (5) gather docUmentation tequited fOt importation and hire a 
customhouse broker; (6) coordinate the delivery of goods; (7) inform management about the imports 
on a regular basis. The duties for the ''professional level'' accountant position include4 the follO\vipg: 
(1) record all the company's transactions; (2) file aU q~l;lrtedy tax returns and reports.; (3) prepare ·the 
anp:g1;1l co_rporate income t1;1x return; (4) prepare the company's finanCial statements; (5) answer any 
qu~ties from the company regarding accounting and tax matters. 
The petitioner's IRS Form 941 for the fourth quarter of 2011, which includes the month in which the 
petition was filed, shows a total of seven employees, The State of Florid~;J. quarterly report for the 
same quarter ,refiects that only four of those employees were actually paid Wages dUring this quarter. 
T.b.e beneficiary 311d three other employees were paid; however, the only other named employee for 
whom the petitioner included a diploma did not re.ceive wages during the quarter in which the petition 
was filed. The petitioner employed the beneficiary, · 
at the time of filing in December 2011, but tbe evidence reflects that none of the subordinate 
.. employees . remained -With the company -in January 2012. The petitioner's Florida qul;lrterly wage 
· report for the first two quarters of 2012, reflect that tbe petitioner employed the beneficiary, 
The director ultimately denied the petition, concluding that the petitioner failed to establish that the 
_beneficiary would be employed in a qualifying managerial or executive capacity. In denying th.e. 
(b)(6)
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Page 7 
petitiOn, the director found that the petitioner failed to establish that the beneficiary would, be 
perfoll1J.itlg duties that are executive or managerial in nature. The director further noted that the 
petitioner did not provide evidence th.at the beneficiary WOl!ld be directing managerial or professional 
level personnel. Finally, the director concluded that the beneficiary appears to be the only full-time or 
professional level employee working for the petitioning company. 
On appeal, colihsel asserts that evidence of record is sufficient to establish that the beneficiary will be 
acting in a primarily managerial or executive position, .Specifically, counsel states that the beneficiary 
Sl!pervises a. professional-level employee who runs the petitioner's sales department. Counsel further 
asserts that the director improperly relied on staffing levels and failed to consider that the reasonable 
needs of _the company are being met by the current organizational Structure. hi addition, counsel 
ernphasi~es that the director failed to consider the two companies that distribute the . petitioner's 
product when evaluating the totality of the evidence and the extent of the company's hierarchy. 
Counsel contends that the evidence submitted supports a fmding that the beneficiary will be employed 
in an executive capacity. 
B. Analysis 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would 
be employed in a managerial or.executive capacity. 
In examining the executive or managerial capacity of the beneficiary, VSCIS will look first to the 
petittoner's description of the job duties. See 8 C.F.R. § 204.5(j)(5}. }1Jblished ca.se law clea..rly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal the 
true nature of the,einployinent. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). Tha.t being said, however, 
USCIS reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the petitioner's business, the employment and remuneration of 
employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any o~her factso 
contributing to a complete understanding of a beneficiary's actual role within a given entity. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show 
that the beneficiary perfotins the high-level responsibilities that are specified in the definitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). . 
The beneficiary's job descriptions submitted in support of the initial petition and in response to the 
R.FE were overly general and vague, and therefore do not ~onvey a meaningful understanding of how 
much time the beneficiary will spend performing qualifying tasks versus those that would be deemed 
non-qualifying. For instance, the petitioner stated that the beneficiary will direct and supervise 
employee performance, direct t:he company's finances, plan and program the company activities, 
approve and sigh financial statements, and other duties. These duties provided little or no insight i11to 
what the beneficiary primarily does on a day-to-day basis or how he carries out his objectives as 
/ 
(b)(6)
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Page 8 
Director of {).S. Operations. Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's 
daily job duties. The petitioner has failed to provide any detail or explanation of the beneficiary's 
activities in the course of her daily routine. The ~ctual <J1.1ties themselves wjll reveal the true nature of 
th'e employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 
F.2d 41 (2d. Cir. 1990). 
The director advised the petitioner that its initi_al qescription of the beneficiary:s duties, which 
described seven broad areas of responsibility, was insufficient to establish eligibility and specifically 
requested a definitive statement listing all specific daily duties the beneficiary performs, as opposed to 
categories of duties, as well as the percentage 1of time allocated to specific tasks. The position 
description submitted in response to the RFE 
included a list of seven even broader responsibilities and 
was not responsive to the director's request fot a definitive statement of the beneficiary's actual daily 
activities. Furthermore, the petitioner initially stated that the beneficiary would directly make contact 
with suppliers and buyers, supervise the order, shipment and customers processes, and· supervise the 
delivery of products, duties that Were absent from the job description provided in response to the RFE. 
The purpose of the request for evidence is to elicit further infonnation that clarifies whether eligibility 
fot the benefit sought has been established. 8 C.P.R. § 103.2(b)(8). When responding to a request for 
evidence, a petitioner 
cannot offer a new position to the beneficiary, or materially change a position's 
title, its level of aut:hor.ity within the organization~! hierarchy, or its associated job responsibilities. 
The petitioner must establish that the position offered to the beneficiary when the petition was filed 
merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg. Comm'r 1978). The information provided by the petitioner in its response to the 
qirector's request for further evidence dici not clarify or provide more specificity to the original duties 
of .the position, but rather added new generic duties to the job description. The failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.P.R.§ 103.2(b)(14). .. .. ' 
While the evidence establishes that the beneficiary is the senior employee in the U.S. company and 
that he possesses the requisite level of decision-making authority with respect to its operations, the 
inconsistencies and lack .of specificity in the provided position descriptions raises questions as to tbe 
beneficiary's actual day-to day responsibilities. Regardless, the position d,escription alone is 
in.sufficient to establish that the beneficiary's duties would be primarily in a managerial or executive 
capacity. Beyond the required description of the job duties, USCIS reviews the totality of the record 
when examining the beneficiary's claimed managerial or executive capacity, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's 
actual duties and role in a business. 
Here, it is not clear who will be performing the actual work of the company. In response to the RFE, 
the petitioner provided an organizational chart stating that a number of the employees move from a 
full to part-time basis depending on the season. Additionally, the petitioner failed to provide the 
(b)(6)
NON-PRECEDENT DECISION 
Pa..ge9 
names of the employees un<Jer the beneficiary's supervision and thus it cannot be determined which 
positions were occupied at the time the petition was filed. Withol!t this information, the 
record does 
I)ot support a finding that the. beneficiary has sufficient staffmg levels to relieve him of perforrni.ng the 
non-qualifying day · to day duties of the organization. Going on re.cord without supporting 
docu.mentaty evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. · Matter of Soffici, 22 I&N Dec. 158, 165 (Coirull'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Again, the failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 
io3.2(b)(14). 
Although the benefici~y is not required to supervise personnel, if it is· claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See§ 101(a)(44)(A)(ii) of the Act. 
The petitioner failed to · provide . a con~ is tent and credible de~cription of the employees under the 
beneficiary's supervision; the petitioner's initial organization chart shows a three tiered management 
system, with the sales, administration, and accountant positions reporting to the import manager. The 
petitioner's org~izatiom~l chart in response to the RFE showsthe beneficiary as a first-line supervisor 
with all positions reporting directly to him. It is incumbent upon the petitiom~r to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsJstencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Pee. 582, 591-94 (8IA 1988). 
In eva.lllati,ng whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalau,reate degree as a minimum for entry into the field 
of endeavor. Section l01(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he• term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary scP,ools, colleges, academies, or seminaries." · The term "profession" 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field .gained by a 
prolonged course of specialized instruction and study of at least baccalaureate level, which is a 
realistic prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. ~17 
(Col1ll1l'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 
1966), . 
Therefore, the AAO must focus on the level of education required by the position, rather than the 
degree held by the subordinate employee. The possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a 
professional capacity as that term is defined above. I.n the instant case, the petitioner has not, in fact, 
established that a bachelor's degree is actually necessary, for example, to perform the work of the 
sa.les manager, wbo is among the beneficiary's subordinates. 
In the initial petition and in response to the RFE, the petitioner states that the positions of import and 
account were listed as "Professiona1 Level'' and the positions of administration and sales were listed as 
. ';Technical .Level." The petitioner submits a copy of a diploma for an employee, but does rtot state 
(b)(6)
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Page 10 
which position that person holds. On appeal, however, c.ounsel for the petitioner claims that the 
professional level position is that of the sales manager position. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by indepen.den~ objective evidence. Any attempt to explain or 
reconcile such inconsist~ncies will not suffice lillless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582; 591-92 (BIA 1988). 
On appeal, colinsel claims that the sales manager position is professionall{wel due to the fact that the 
person holding that position has a degree. As stated above, the determination is made ~y the level of 
educatio11 required by the position, rather than the degree heJd by th~ subordinate employee. 
Ultimately, neither the import manager 110r sales manager position is a professional level or 
managerial position based on the position descriptions· submitted in response to the RFE. In addition, 
there is no evidence that the employee holding the professional-level degree was not paid during the 
quartet in which the petition wa.s filed. A petitioner must establish eligibility at the time of filing; a 
petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a 
new set of facts. Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
The petitioner also stated that the position. of accountan_t is a professional level position, On the 
organization chart, however, the beneficiary was depicted as having "dotted-line" authority over the 
accountant, and the accountant does not appear on the petitioner's quarterly wage tax filings. If the 
accountant was a contract employee, the petitioner failed to provide a copy of the contract or other 
evidence that the position of accountant is under the beneficiary's supervision. Furthermore, the 
· petitioner failed to show the amount of time that the beneficiary will spend supervising the 
accountant. Failure to submit requested evidence that precludes a material line of inquiry shall be 
1 grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). 
·counsel further claims that the beneficiary "directs business dealings" with other companies that serve 
as tbe petitioner's distributors. The petitioner states that the beneficiary coordinates with these 
companies for "quality control" purposes. The petitioner, however, fails to evidence how the 
beneficiary supervises 
these companies or specify what employees the beneficiary oversees. Going 
on record . without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (ciHng 
MattetofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
The proposed position of the beneficiary is a Director of U.S. Operations of an import and consulting 
business comprised of three , employees other than the beneficiary. The petitioner has not 
demonstrated that tlie beneficiary, as a personnel manager, will be primarily supervising a subordinate 
staff of· professional; managerial, or supervisory personnel. See section 101 ( a)(44 )(A)(ii) of. the Act. 
Furthermore, the petitioner has not established that it will employ a staff that will relieve the 
beneficiary from performing non-qualifying duties so that the beneficiary ma.y primarily engage in 
managerial duties. Further, regardless of the beneficiary's position title, the record is not persuasive 
that the beneficiary will function at a senior level within an organizational hierarchy. 
On appeal, colillsel for the petitioner claims that the beneficiary's position is executive in nature. the 
statutory definition ·Of the term "executive capacity'' focuses on a person's elevated position within a 
(b)(6)
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Page 11 
complex organizational hierarchy, including major components or functions of the organization, and 
that person;s authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to ''direct the management" and 
''establish the goals and policies" of that organization. Inherent to the definition, the organization 
must h~ve a subordinate level of managerial employees for the beneficiary to direct and the 
b~neficiary must prim~l y focus Qll the broad goals and policies of the organization rather than the. 
day-to-day operations of the enterprise. An individu~J will not be deemed an executive under the 
statute simply because they have an executive title ot because they "direct" tbe enterprise as th~ owner 
or sole managerial employee. The henefic;iary must also exercise "wide latitude in discretionary 
decision making" and receive only "general su.pervision or direction from higher level' executives, the 
hoard of direCtors, or stockholders of the organization," /(L 
Given the conflicting ~d incomplete information in the record regarding the beneficiary's duties and 
the petitioner's organizational structu.re <llld sUdfing levels, the petitioner has not established how the 
beneficiary is relieved from involvement in the day-to-'day operations of the petitioning enterprise a.s 
the senior employee in a four-person company, or how the company's ctirrent organizational structure 
can support an execlltive position. The record establishes that the beneficiary exercises the 
appropriate level of discretionary authority over the comp<llly as its director of U.S. operations, bl!t 
fails to establish that his actual duties would be primarily executive or managerial in nature. 
Counsel further refers to an unpublisQ.ed decision in which the MO determ_ined that the beneficia_ry 
met the requirements of serving in a managerial and executive capacity for L., 1 classification even 
thougb be was tbe sole employee or supervises only one other employee. Counsel has furnished no 
evidence to establish that the facts of the instant petiti<:>n are analogous to those in the unpublished 
decision. While 8 C.F.R. § 103.3(c) provides tha:t AAO precedent dec"isions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Furthermore, counsel claims that the petitioner's c:urrent staffmg level meet~ the reasonable needs of the 
organization. As requited by section 101(a)(44)(C) ofthe Act, if staffing levels are used as a factOr in 
determining whether an individual is acting in a managerial or executive capacity, USCIS must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
deve_lpplllertt of the organization. To establish that the reasonable needs of the organization justify the 
beneficiary's job duties_, the petitioner mu_st specifically articul;ite why those neeqs are reasonable i.n 
light of its, overall purpose and stage of development. In the present matter; the petitioner has not 
explained how the reasonable needs of the petitioning enterprise justify the beneficiary's performance 
of non-managerial or non-executive duties. Going on record without supporting documentary 
evidence is not sufficient f9r purposes of meeting the burden of proof in tbese proceediugs. Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comtn'r 1998). 
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 ~ections 10li(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). Tbe reasonl,lble needs of the 
petitioner may 
justify a beneficiary who allocates 51 percent of his duties to managerial ot executive 
(b)(6)
1 . • 
NON-PRECEDENT DECISION 
Page 12 
t~s~s as opposed to 90 percent, but those needs will not excuse a beneficiary who spends the majority 
of his Of her time on Q.OQ.~q\lalifying duties. . 
h) sunu:mrry, the petitioner has failed to provide sUfficient evidence to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity and the 
petition caiiilot be approved. 
J 
Tbe app~al will be dismissed for the above stated reasons. In visa petition proceedings, it is· the 
. petitioner's burden 
to establish eligibility for the iii1Il)igration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has Q.Ot 
beenm.et. 
ORDER: the appeal is dismissed.