dismissed EB-1C Case: Carpet Services

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
prevent ckdy mwmmted 
invasion of pmmd privacy 
Office: VERMONT SERVICE CENTER 
 Date: DEC 1 3 '1Ws 
EAC 04 267 52398 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
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. 
~4z~~ 
+Robert P. lemann, Chief 
I 
 Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Vermont Service Center, denied the employment-based petition. 
 The 
petitioner filed a timely appeal of the director's denial, which the Administrative Appeals Office (AAO) 
remanded to the director for further action and consideration. The director again denied the immigrant visa 
petition. Once more, the matter is before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner filed the immigrant visa petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
9 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of New York that is 
engaged in repairing, remodeling, mending, and cleaning carpets. It seeks to employ the beneficiary as its 
general manager. 
In a January 7, 2005 decision, the director denied the petition concluding that the petitioner had not 
established that the beneficiary had been or would be employed by .the foreign or United States entities in a 
primarily managerial or executive capacity. Upon review of the petitioner's appeal, the AAO remanded the 
matter to the director, noting that the director had not issued a request for evidence, thereby providing the 
petitioner an opportunity within which to address the deficiencies in the record. 
The director again denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
In this timely appeal, counsel for the petitioner claims jhat the beneficiary would be employed by the United 
States organization in both a managerial and executive capacity. Counsel submits an appellate brief and 
documentary evidence challenging the director's findings. 
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 application for classification and admission into the United 
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. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational 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, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, hnctions at a senior level withn the 
organizational hierarchy or with respect to the hnction 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. 9 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; 
(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 immigrant visa petition on September 25, 2004, claiming on the Form 1-140 that the 
beneficiary would be employed as the general manager of the eight-person United States organization. In an 
Page 4 
appended letter, dated August 27, 2004, the petitioner provided the following description for the beneficiary's 
proposed position: 
His duties include planning, formulating, directing, managing, and coordinating activities of 
professional workers engaged in expert repair, remodeling, and mending rugs and carpets, as 
well as overseeing supervisory personnel and other workers engaged in cleaning rugs and 
carpets, and warehouse management; planning, developing, formulating and managing 
advertising, marketing, and promotion of our services to develop new markets, increase share 
of market, and obtain competitive position in industry; allocate operating budget and approve 
supplies and equipment requisition; outline work plan and assign tasks, duties, 
responsibilities, and scope of authority; review quality of work for conformity to overall 
company's standards; adjust customers' complaints; screen and hire job applicants, and 
recommend promotions, transfers or dismis'sals. 
(Emphasis in original). 
Following the director's January 7, 2005 denial and the AAO's remand of the instant matter to the director, the 
director issued a request for additional evidence. In the' November 12, 2005 letter to the petitioner, the 
director noted that the record lacked sufficient evidence to determine the beneficiary's proposed employment 
capacity in the United States entity. The director askkd that the petitioner submit a statement addressing the 
following: (1) the petitioner's staffing levels, including the names and job titles of all employees, their related 
job duties, educational backgrounds, and the manner in which each person is paid; (2) an outline of the 
beneficiary's job duties and the amount of time the beneficiary would spend on each task in a regular 
workweek; (3) the petitioner's 2004 federal income tax return and quarterly tax returns submitted by the 
petitioner since the filing in September 2004; and (4) Internal Revenue Service (IRS) Forms W-2, W-3 and 
1099 issued by the petitioner in 2003 and 2004. 
The petitioner responded in a letter dated December 19, 2005, claiming that the beneficiary would occupy an 
"executivelmanagerial" position in the United States company. 
 The petitioner outlined the statutory 
requirements for "managerial capacity" and "executive capacity," and contended that the beneficiary would 
qualify for the requested immigrant visa under either classification. The petitioner submits the following 
description of the position of general manager: 
[Pllanning, formulating, directing, managing, and coordinating, the overall activities of 
operations of our company, through subordinate supewisoty, professional, or managerial 
employees, directly reporting to him, ensuring optimum efficiency and economy of 
operations and maximum profits [ll hrs/wk]; developing advertising, marketing and 
promotion of our services, to develop new markets, increase share of market, and obtain 
competitive position in the industry [6 hrslwk]; determining funding limitations and allocate 
operating budgets to our various departments, identifying areas in which reductions can be 
made [5 hrslwk]; overseeing the organization, scheduling, and implementation of projects, 
ensuring operational efficiency and economy [2 hrslwk]; outline work plan, assign tasks, 
duties, establishing responsibilities and scope of authority [4 hrslwk]; supervise and control 
the hiring and dismissal of employees [I hr/wk]; review quality of work for conformity to 
overall company standards [2 hrslwk]; evaluate performance of subordinate supervisory, 
professional, or managerial employees and their respective contribution towards meeting 
goals and objectives [3 hrslwk]; adjust customers' complaints [lhrlwk]. 
(Emphasis in original). 
The petitioner stated that with respect to "executive capacity," the beneficiary satisfies the statutory criteria as 
he would "[be] in charge of planning, organizing, budgeting, directing, controlling, and coordinating the 
overall activities of operations of our organization, overseeing the business and financial decisions of our 
entity, and formulating business management policies," as well as evaluating the "performance of subordinate 
supervisory, managerial and professional employees under hls control for compliance with established 
policies and objectives and their respective contribution in attaining objectives," and developing budgets and 
cost controls. (Emphasis in original). The petitioner further stated that the beneficiary would direct the 
organization's management, oversee activities, operations, and major functions, and exercise full decision- 
making authority with respect to the business, staffing, resources, and operations. The petitioner claimed that 
the above-named responsibilities held by the beneficiary demonstrate his proposed employment in a primarily 
executive capacity. 
The petitioner also addressed the beneficiary's purported employment in a primarily managerial capacity, 
stating: 
By managing the function of our organization (expert repairs, remodeling, mending, and 
cleaning of carpets and rugs, including high-end, expansive [sic] rugs, such as Persian, 
Chinese, and Bukhara rugs), developing and implementing a management plan, directing and 
overseeing effective and efficient implementation thereof on an economical basis and within 
time constraints, overseeing its organization, scheduling, and implementation; planning, 
organizing, directing, controlling, and coordinating the overall activities of operations of our 
entity and/or its functions, he also meets the "[mlanagerial capacity" criterion set forth at 8 
C.F.R. [§] 204.56)(2)(A). 
(Emphasis in original) 
The petitioner stated in that in addition to managing six lower-level employees working in the positions of 
expert rug cleaner and rug-carpet cleaner, the beneficiary would supervise a color expert, warehouse manager, 
and rug cleaning supervisor, who the petitioner claimed occupied professional, managerial, and supervisory 
positions. The petitioner claimed that besides managing subordinate professional, managerial and supervisory 
employees, the beneficiary would function at a senior level within the organization and would manage the 
company's "essential" marketing functions. The petitioner contended that the above-named job duties 
demonstrate that the beneficiary would occupy a "seniorkey position" in the organization, rather than being 
employed as a first-line supervisor. 
As authority for the beneficiary's employment in a primarily managerial and executive capacity, the petitioner 
references the Standard Occupational Classification (SOC) User Guide and the Occupational Outlook 
Handbook (OOH), both of which are published by the U.S. Department of Labor and address occupational 
categories and related job information. The petitioner claimed that the SOC acknowledges that, in general, 
the position of general manager requires planning, directing and coordinating a company's operations and 
formulating policies. 
Page 6 
The petitioner also stressed that Citizenship and Immigration Services (CIS) had previously approved two 
L-1A nonimmigrant visa petitions filed by the petitioner on behalf of the beneficiary. 
In a decision dated February 7, 2006, the director concluded that the petitioner had not established that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director stated that the "vague and general" job description offered by the petitioner does not sufficiently 
address his specific job duties or explain "what the beneficiary will be doing on a day-to-day basis for forty 
hours a week." The director also stated that the record was devoid of evidence "establishing that the 
beneficiary has or will have managerial control and authority over a functioning department, subdivision or 
component of the United States entity, or that the beneficiary will operate at a [slenior level within the entity's 
hierarchy or with respect to a function." The director noted that the cumulative amount in salaries paid by the 
petitioner in 2004 did not appear to include compensation paid to the beneficiary, and did not support the 
petitioner's claim of employing subordinate managerial employees. 'The director concluded that the petitioner 
had not established that "the beneficiary will be involved in the supervision and control of the work of other 
supervisory, professional, or managerial employees who will relieve him from performing the services of the 
corporation." Consequently, the director denied the petition. 
Counsel for the petitioner filed a timely appeal. In an attachkd appellate brief, dated February 27, 2006, 
counsel contends that CIS erred in concluding that the beneficiary would not be employed as a manager and 
executive of the United States organization. Counsel challenges the director's finding with respect to the 
"vague and general" job description, stating that the petitioner submitted a "crystal clear, plain and simple, 
detailed, and lucidly characterized" description of the beneficiary's job duties as the general manager of the 
United States company. Counsel references the job description provided in the OOH for "general manager," 
noting that the description offered by the petitioner is analogous to the job duties named in the OOH, and 
therefore, is sufficient to establish the beneficiary's purported employment in a qualifying capacity. 
Counsel contends that CIS failed to explain its finding that the petitioning entity would not support the 
beneficiary in a primarily managerial or executive position. Counsel states that CIS did not take into account 
the reasonable needs of the organization in light of its overall purpose and stage of development, as required 
under section 101(a)(44)(C) of the Act, and incorrectly focused on the size of the petitioner's staffing levels as 
a "determinative factor" in the beneficiary's employment as a manager or executive. Counsel references the 
OOH, which counsel notes as an "authoritative source" of the AAO, stating that it recognizes the reasonable 
need of both large and small organizations to employ a general manager, who would be "responsible for the 
operational success of a company." Counsel also states that the SOC acknowledges the beneficiary's position 
of general manager as a top executive position. 
Counsel further contends that CIS incorrectly concluded that the beneficiary would be performing non- 
managerial and non-executive tasks of the organization. Counsel states: 
A simple review of the description of [the] beneficiary's job duties reveals the beneficiary, in 
fact, is not engaged in any of the [company's] non-managerial day-to-day operations, but 
rather plans, directs, oversees, and coordinates the overall activities of operations to ensure 
that goals or objectives are accomplished within [the] prescribed time frame and budget; 
determining time frame, funding limitations, procedures for accomplishing projects, staffing 
requirements, allotment of available resources, outline work plan and assign duties, 
responsibilities, and scope of authority; supervise and control the hiring and dismissal of 
employees; review status reports and modify schedules or plans as required; planning, 
developing, formulating and managing advertising, marketing, and promotion of the 
company's services to develop new markets, increase share of market, and obtain competitive 
position in [the] industry; allocate operating budget and approve supplies and equipment 
requisition; review quality of work for conformity to overall company's standards; adjust 
customers' complaints, as opposed to first-line supervisors, managers, and professional 
employees under the beneficiary's control, such as, [wlarehouse [mlanager [recognized as 
"Manager" - D.O.T. Code 184.167-1 14 O*NET Code 11-3071.021, [clolor [elxpert 
[recognized as "Professional" - D.O.T. Code 141.051-010, O*NET Code 27-1025.001, and 
[r]ug/[c]arpet [clleaning [slupervisor [recognized as "Supervisor" - D.O.T. Code 369.137- 
014, O*NET Code 51-101 1.001, who supervise other subordinate non-managerial workers 
engaged in the actual performance of expert rug repairs or carpet and rug cleaning. Clearly 
then, the beneficiary does not perform any of the 'non-managerial, day-to-day operations 
involved in producing a product or providing a service.' 
(Emphasis in original). Counsel restates the job descriptions offered by the petitioner in its December 19, 
2005 letter, and further claims that the "extensive, complete and comprehensive" job description establishes 
that the beneficiary would manage supervisory, professional, and managerial employees, as well as an 
essential function of the organization, and demonstrates that the beneficiary would function at a senior level 
of the company as he would manage and direct the organization's operational activities. Counsel notes that 
the "actual cleaning of rugs and carpets is performed by [the] petitioner's [m]achine/[h]and rug cleaners," 
while the rug repairers reweave or tack any damaged areas. Counsel notes that the organizational hierarchy of 
the petitioning entity is further supported by the varying amounts in salary paid to each employee. 
Counsel emphasizes the prior two L-1A nonimmigrant visa petitions approved by CIS for the benefit of the 
beneficiary's employment as general manager in the petitioning entity. Counsel contends that the petitioner 
has demonstrated by a preponderance of the evidence that the beneficiary would be employed by the United 
States entity in a primarily managerial and executive capacity. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
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. 8 204.56)(5). 
While the petitioner and counsel submitted lengthy job descriptions, neither addresses the specific managerial 
or executive job duties to be performed by the beneficiary in the position of general manager. For instance, in 
its December 19, 2005 letter, the petitioner allocates the beneficiary's time among such vague job 
responsibilities as "planning, formulating, directing, managing and coordinating, the overall activities of 
operations" through subordinate managerial, supervisory and professional employees, promoting the 
company, developing new markets, determining operating budgets, "planning, developing, and establishing 
policies, objectives and goals," "overseeing the organization, scheduling and implementation of projects," 
assigning tasks, establishing responsibilities, reviewing the work of subordinates, and handling customer 
complaints. Additionally, significant portions of both job descriptions submitted in response to the director's 
request for evidence and on appeal are mere restatements of the statutory definitions of "managerial capacity" 
and "executive capacity." See $$101(a)(44)(A) and (B) of the Act. For example, the petitioner specifically 
relies on the definition of "executive capacity" in its claim that "[bly virtue of [the beneficiary's] planning, 
developing, formulating and establishing our company policies, developing long range goals and objectives, 
and establishing responsibilities, scope of authority, and procedures for attaining said objectives [the 
beneficiary] also meets the second criteria of '[elxecutive capacity] set forth at 8 C.F.R. [$] 204.5(h)(2)(B)." 
Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating 
the language of the statute or regulations does not satisfy.the petitioner's burden of proof. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afJd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The regulation at 8 C.F.R. $ 204.5(j)(5) requires a 
detailed description of the beneficiary's daily managerial or executive job duties. The petitioner has failed to 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
at 1108. 
The petitioner's failure to address the specific managerial and executive tasks involved in such responsibilities 
as promoting the company, developing new market6 determining operating budgets, or handling customer 
complaints is particularly relevant as these more closely resemble non-qualifying, operational tasks related to 
the organization's marketing, sales, and advertising functions. Based on the petitioner's claims, the 
beneficiary would manage the previously noted tasks; yet, the petitioner has not identified a subordinate staff 
that would develop and implement the company's marketing, advertising, and promotional programs. It is 
reasonable therefore, to conclude that rather than managing these functions, the beneficiary would personally 
perform the related non-managerial and non-executive tasks. 
According to the job descriptions, the beneficiary would also determine the company's budget and spending 
limitations, schedule cleaning or repair projects, and handle customer complaints, responsibilities that are not 
typically deemed to be managerial or executive in nature. See $9 10 1 (a)(44)(A) and (B) of the Act. Based on 
the petitioner's descriptions, these non-managerial and non-executive responsibilities, as well as the marketing 
and advertising responsibilities, would consume approximately 35 percent of the beneficiary's time. The 
AAO notes, however, that the petitioner has not accounted for the performance of such additional day-to-day 
administrative tasks related to its personnel, banking, bookkeeping, and accounting functions. Despite 
counsel's claim that the petitioner's non-managerial and non-executive tasks are performed solely by its 
support staff, the petitioner's non-qualifying day-to-day tasks include not only those related to rug and carpet 
cleaning and repair, but also the administrative and operational tasks noted above. As the petitioner has not 
identified an administrative support staff, it is questionable who, other than the beneficiary, would be 
responsible for assuming the performance of these non-qualifying tasks. The AAO notes that an employee 
who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to 
be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the 
Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter 
of Church Scientology Int 'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
The finding that the beneficiary would not be employed in a primarily managerial or executive capacity is 
further supported by an analysis of the petitioner's reasonable needs. 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 $ 101(a)(44)(C) of the Act, 
8 U.S.C. tj 1101(a)(44)(C). 
In accordance with the above discussion, while the petitioner demonstrated the employment of a staff 
sufficient to execute its offered services, the petitioner's business is comprised of significantly more routine 
business functions, the performance of which the petitioner did not account. Based on the petitioner's 
representations, it does not appear that the reasonable needs of the petitioning company might plausibly be 
met by the services of the beneficiary and the support staff. 
The AAO notes that although counsel identifies on appeal CIS' obligation to consider the petitioner's 
reasonable needs in conjunction with the size of its staff, couns,el does not specifically demonstrate that the 
nine-person staff employed on the filing date would meet the petitioner'saeasonable needs. Rather, counsel 
references the OOH as authority for the suggestion that, in general, all carporations have a "reasonable need" 
to employ a general manager, regardless of its size and staffing levels. The AAO does not question or dispute 
a small company's need for a general manager. However, as suggested in thestatute, the "reasonable needs" 
analysis is specific to the petitioning corporation, and requires a review of the petitioner's staffing levels, 
overall purpose and stage of development. Paraphrasing job descriptions found in the OOH is not sufficient 
to establish a beneficiary's eligibility as a manager or executive. 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. at 1108. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the 
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
sections 101(a)(44)(A) and (B) or the Act. As discussed. above, the petitioner has not established this 
essential element of eligibility. 
As additional evidence of the beneficiary's purported employment as a manager or executive, counsel notes 
the beneficiary's managerial authority over professional, managerial and supervisory employees. The AAO 
questions the petitioner's references to its color expert as a "professional" and to its warehouse manager as a 
managerial employee. The AAO notes that the warehouse manager is not managing or supervising any 
subordinate employees, but appears to be performing all warehouse functions himself. Also, despite counsel's 
claim that the color expert is a professional, counsel has not established that the position of color expert 
requires a baccalaureate degree as a minimum for entry into the field. See Matter of Sea, 19 I&N Dec. 817 
(Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966) 
(finding that 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). Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The record also fails to corroborate counsel's additional claiin that the beneficiary would be employed as a 
function manager. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. tj 1 10 1 (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, 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. 8 
C.F.R. 5 204.56)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather thanpe$orrns the duties related to the function. 
In support of the beneficiary's purported employment as a function manager, counsel states on appeal: 
Since our organization is engaged in expert repairs, remodeling, mending and cleaning of 
carpets and rugs, including expansive Persian, Oriental, and Bukhara rugs, then managing the 
overall activities of operations relating to said function, ensuring optimum efficiency and 
economy of operations and maximizing profits, is an 'essential function' within the meaning 
set forth at 8 C.F.R. [§I 204.56)(2)(B); planning, developing, and establishing advertising, 
marketing and promotion of our services, to develop new markets, increase share of market, 
and obtain competitive position in the industry ds also an essential function - the OOH 
acknowledges marketing as an essential function, stating that '[tlhe fundamental objective of 
any firm is to market its services profitably' (copy attached) - running our business 
successfully and maximizing profits, while ensuring our customers are satisfied, is not only 
essential for our company (or any company, for that matter), but rather crucial; that is indeed 
the essence of our existence). Top managers/executives are essential to the success of any 
organization. 
(Emphasis in original). 
Counsel's blanket claims are not persuasive. 
 Counsel's essentially presents a circular argument that the 
beneficiary should be considered a function manager because he would manage the company's "overall" 
operations and plan its marketing, which are essential functions. The AAO acknowledges that the 
maximization of profits is essential to any operation; yet, this nonspecific claim by counsel is not sufficient to 
meet the requisite specificity to demonstrate the beneficiary as a function manager. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503 (BIA 1980). 
Counsel makes the additional argument that the petitioner established by a preponderance of the evidence that 
the beneficiary would be employed in a primarily managerial or executive capacity. The "preponderance of 
the evidence" standard requires that the evidence demonstrate that the applicant's claim is "probably true," 
where the determination of "truth" is made based on the factual circumstances of each individual case. Matter 
of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence, Matter of E-M- also stated that 
"[tlruth is to be determined not by the quantity of evidence alone but by its quality." Id. Thus, in adjudicating 
the application pursuant to the preponderance of the evidence standard, the director must examine each piece 
of evidence for relevance, probative value, and credibility, both individually and within the context of the 
totality of the evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible 
evidence that leads the director to believe that the claim is "probably true" or "more likely than not," the 
= Page 11 
applicant or petitioner has satisfied the standard of proof. See US. v. Cardozo-Fonseca, 480 U.S. 421 (1987) 
(defining "more likely than not" as a greater 'than 50 percent probability of something occurring). If the 
director can articulate a material doubt, it is appropriate for the director to either request additional evidence 
or, if that doubt leads the director to believe that the claim is probably not true, deny the application or 
petition. 
Here, the submitted evidence is not relevant, probative, and credible. As discussed above, the vague and 
nonspecific job descriptions do not present sufficient detail of the managerial or executive job duties to be 
performed by the beneficiary, and thus cannot be deemed probative of the capacity in which the beneficiary 
would be employed. Additionally, the petitioner's assertions as to the beneficiary's management are not 
credible, as the petitioner did not identify a subordinate staff of employees who would actually perform the 
non-qualifying tasks purportedly managed by the beneficiary. Rather, the record demonstrates that many of 
the non-managerial and non-executive tasks related to the petitioner's marketing and advertising functions, as 
well as such administrative tasks as banking, bookkeeping, and accounting would be performed by the 
beneficiary. As a result, counsel's argument is without merit. The petitioner has not demonstrated by a 
preponderance of the evidence that the beneficiary is fully qualified for the benefit sought. See Matter of 
Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter ofPatel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo 
Hoo, 1 1 I&N Dec. 15 1 (BIA 1965). In visa petition proceedings, the burden is on the petitioner to establish 
eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). 
The AAO recognizes that CIS previously approved two L-1A nonimmigrant visa petitions filed by the 
petitioner on behalf of the beneficiary for employment as its general manager. In general, given the 
permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny by CIS than 
nonimmigrant petitions. As stressed by counsel, the AAO acknowledges that both the immigrant and 
nonimmigrant visa classifications rely on the same definitions of managerial and executive capacity. See $$ 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1101(a)(44). Although the statutory definitions for managerial 
and executive capacity are the same, the question of overall eligibility requires a comprehensive review of all 
of the provisions, not just the definitions of managerial and executive capacity. There are significant 
differences between the nonimmigrant visa classification, which allows an alien to enter the United States 
temporarily for no more than seven years, and an immigrant visa petition, which permits an alien to apply for 
permanent residence in the United States and, if granted, ultimately apply for naturalization as a United States 
citizen. CJ: $9 204 and 214 of the Act, 8 U.S.C. $$ 1154 and 1184; see also $ 316 of the Act, 8 U.S.C. $ 
1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. 5 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
L-1A petition's validity). Because CIS spends less time reviewing L-1 petitions than Form 1-140 immigrant 
petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d 25 (D.D.C. 2003). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proofi each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude CIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Sava, 
724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Due to the lack of required evidence in the 
present record, the AAO finds that the director was justified in departing from the previous nonimmigrant 
approvals by denying the present immigrant petition. 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound $0 follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Notwithstanding the petitioner's failure to demonstrate the beneficiary's eligibility for the requested 
classification, the AAO notes error on the part of the director in her review of the instant matter. Specifically, 
in her February 7, 2006, the director analyzed the petitioner's 2004 federal income tax return and the salaries 
paid by the petitioner in 2004. The director noted that the beneficiary was not compensated by the petitioner 
as an officer of corporation, and further concluded that the separate salary amounts did not establish that any 
of the beneficiary's subordinate employees were employed in a managerial position. The director partially 
based her decision on an improper analysis of the salaries paid by the petitioner. While helpful in 
determining the full-time or part-time status of an employee, and, in turn, whether the beneficiary is 
sufficiently supported in a primarily managerial or executive capacity, an employee's salary is not indicative 
of an organization's managerial hierarchy or staffing levels. Moreover, whether a beneficiary is compensated 
as an "officer" or an "employee" of the petitioning corporation is not material to his employment in a 
primarily managerial or executive capacity. Despite the director's partial reliance on an improper standard, 
the record as presently constituted fails to establish that the beneficiary would be employed as a manager or 
executive. 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
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. § 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.