dismissed EB-1C Case: Construction Consulting

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F'UBlJK3 COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: 
LIN 07 25 1 54846 
Office: NEBRASKA SERVICE CENTER 
 Date: JAN 1 4 2010 
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. $ 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
/ Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a corporation organized in the State of Florida that claims to be in the business of 
providing consulting services to construction developers. It seeks to employ the beneficiary as its 
operation manager. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner had not established that the 
beneficiary was employed by the foreign entity, or will be employed by the United States entity, in a 
primarily managerial or executive capacity. 
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 for the petitioner contends that the 
director's decision is in error. Counsel submits a brief and additional evidence on appeal. 
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 and 
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 that 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. See 8 C.F.R. $ 204.5(j)(5). 
The first issue in the present matter is whether the beneficiary would be employed in a primarily 
managerial or executive capacity in the United States. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. tj 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 
Page 4 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In a letter dated July 26, 2007 submitted with the Form 1-140, Immigrant Petition for Alien Worker, 
the petitioner provided the following description of the beneficiary's responsibilities as the U.S. 
company's operations manager: 
[The beneficiary] has coordinated services with contractors providing equipment 
rentals, construction laborers, concrete providers, lumber providers/installers, 
electrical engineers, plumbers, general engineers, among others. [The beneficiary] 
has overseen all pending projects and has been a key actor in the closing of two new 
large development projects [for] which contracts were signed earlier this year. All 
contractors and/or engineering personnel must report to [the beneficiary] as he 
oversees all aspects of decision making for construction/development projects. [The 
beneficiary] functions autonomously as he is responsible for managing and directing 
all development activities of [the U.S. company] as they pertain to construction 
projects. 
On July 30, 2008, the director issued a request for further evidence (RFE). With respect to the 
beneficiary's U.S. position, the director requested a more detailed description of the beneficiary's 
duties, including a description of what actual day-to-day tasks are involved in the completion of each 
duty, and an estimate of the percentage of time the beneficiary will spend performing each duty. 
The director also noted that the beneficiary appears to be the sole employee of the U.S. company and 
that he "coordinates services" with contractors. The petitioner is asked to explain the beneficiary's 
role with respect to the services offered by the company and to describe the work performed by any 
contract workers employed by the company. The director also requested copies of any IRS Forms 
1099-MISC issued to any contract workers in 2007 and the petitioner's most recent federal tax 
return, with all schedules and attachments. 
In a letter dated September 9, 2008 responding to the RFE, counsel stated the following in 
connection with the beneficiary's U.S. job responsibilities: 
Beneficiary is the person responsible for locating the independent contractors who 
work the company's projects. He oversees all workers and projects from start to 
completion. Beneficiary works closely with the independent contractors in order to 
complete projects and is responsible for the overall completion of projects for 
clientele. As such, Beneficiary is crucial to the sustenance and growth of the 
company. 
The petitioner did not submit a detailed description of the beneficiary's day-to-day tasks, or an 
estimate of time spent per duty, as requested. With respect to independent contractors, the petitioner 
submitted a document entitled "List of Staff and Their Functions" stating the names, tax 
identification numbers, social security numbers, positions, and "functions" of thirty-one individuals 
or organizations that perform work or supply materials for the U.S. company. The petitioner also 
submitted IRS Forms 1099-MISC for the year 2007 for 27 individuals or organizations on the list; 
list of the company's current pending projects in Florida; the petitioner's 2006 and 2007 tax returns; 
and a copy of the beneficiary's 2007 tax return and IRS Form W-2, Wage and Tax Statement. 
On November 25, 2008, the director denied the petition, concluding that the petitioner had not 
established that the beneficiary would be employed by the U.S. entity in a primarily managerial or 
executive capacity. Specifically, the director noted that the petitioner failed to submit the more 
detailed description of job duties and the percentage of time spent on each duty that was requested. 
The director further noted that the total of payments to contractors based on the Forms 1099-MISC 
for 2007 exceeded the company's total revenues as listed on the petitioner's 2007 tax return. The 
director acknowledged that the beneficiary is apparently responsible for supervising the work done 
by various contract staff; however, based on the client contracts that the petitioner had submitted, the 
company has a number of responsibilities that are not carried out by contract staff, such as preparing 
bids and estimates, obtaining permits, and arranging insurance, and without the requested 
information regarding the beneficiary's duties, it cannot be determined whether the beneficiary 
himself is carrying out these duties and, if so, how much of his time is spent on them. The director 
concluded that the petitioner has failed to establish that a majority of the beneficiary's time would be 
spent on qualifying tasks. 
On appeal, counsel reiterates that the beneficiary "manages all independent contractors in the 
completion of construction projects." Counsel also claims that, as the operations manager, the 
beneficiary "is responsible for all decision making including the retention and hiring of independent 
contractors, overseeing the services provided by same, managing the client contracts, selecting 
proposals and projects and determining the objective for the U.S. entity." Counsel maintains that 
"[ilt is difficult to understand how any of the duties listed could be construed as anything other than 
managerial in nature." Counsel contends that the fact that payments to contractors exceed the 
company's total revenues in 2007 is not an indication of whether or not the company is employing 
the beneficiary in a managerial capacity.' Counsel stated that as the company has had minimum 
profits, it has not hired any additional employees. 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to 
establish that the beneficiary would be employed in a primarily executive or managerial capacity in 
the United States. 
1 
 In determining the petitioner's ability to pay the proffered wage, USCIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this evidence will be 
considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In the present matter, the petitioner 
submitted the beneficiary's IRS Form W-2 for 2007, showing that the beneficiary received wages from the U.S. company 
in the amount of $42,822.54. This amount exceeds the beneficiary's proffered annual wages of $41,000, as stated in the 
petitioner's July 2007 letter submitted with the initial petition. Accordingly, the AAO finds that the petitioner has 
satisfactorily established its ability to pay the beneficiary's proffered wages at the time the petition was filed. See 8 
C.F.R. 5 204.5(g)(2). 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. 5 204.50)(5). The petitioner's description 
of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. Beyond the required 
description of the job duties, the U.S. Citizenship and Immigration Services (USCIS) reviews the 
totality of the record when examining the claimed managerial or executive capacity of a beneficiary, 
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. 
Further, it is noted that the definitions of executive and managerial capacity each have two parts. 
First, the petitioner must show that the beneficiary performs the high-level responsibilities that are 
specified in the definitions. Second, the petitioner must prove that the beneficiary primarily 
performs these specified responsibilities and does not spend a majority of his or her time on day-to- 
day hctions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 
30, 1991). Whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of proving that the beneficiary's duties are "primarily" managerial 
or executive. See sections 10 1 (a)(44)(A) and (B) of the Act. 
The AAO agrees with the director's observation that the petitioner has provided a vague and 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary does 
on a day-to-day basis. For example, in the initial petition, the petitioner stated that the beneficiary 
"has coordinated services with contractors," "oversees all aspects of decision making for 
construction/development projects," and "is responsible for managing and directing all development 
activities of [the U.S. company] as they pertain to construction projects." Even though the director 
requested a more detailed job description, counsel for the petitioner responded by restating the same 
generalities. 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 his daily routine. 
 The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 
F.2d 41 (2d. Cir. 1990). 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. Id. 
Further, in addition to failing to provide a more detailed description of the beneficiary's day-to-day 
tasks, the petitioner also failed to provide a breakdown by percentage of time spent per duty, as 
requested in the RFE. 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. 55 103.2(b)(8) and (12). The failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties 
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non- 
managerial administrative or operational duties. Although specifically requested by the director, the 
petitioner's description of the beneficiary's job duties does not establish what proportion of the 
beneficiary's duties is managerial in nature, and what proportion is actually non-managerial. See 
Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
The record indicates that the beneficiary is the sole employee of the U.S. company. The petitioner 
and counsel claim that, although the beneficiary does not supervise any subordinate employees, he 
manages all of the company's independent contractors "in the completion of construction projects." 
The AAO acknowledges that the petitioner has submitted a number of IRS Forms 1999 as evidence 
of the company's use of independent contractors. However, based on the very brief description of 
the "functions" of these individuals or companies, it appears that these contractors perform work 
relating to the construction projects and carry out no duties related to the operations of the U.S. 
company itself. For example, the functions of the contractors are characterized as "design & 
permit," "legal advice regarding contracts," "project completion," "accounting & purchases," in 
addition to various categories of construction, garden design, and maintenance and repair. It is 
unclear who, other than the beneficiary, would be performing the U.S. company's daily 
administrative work, procuring and negotiating the construction contracts, or as the director noted, 
preparing bids and estimates. The "List of Staff' provided by the petitioner does include the 
president of the company, whose function is stated as "administrative manager." However, there is 
no evidence of her employment by the company, or any description of her duties. Thus, the record 
lacks evidence that there are other employees to perform such non-qualifying work, nor did the 
petitioner explain how the services of the contractors obviate the need for the beneficiary to 
primarily conduct these aspects of the petitioner's business. If the beneficiary actually performs 
these non-qualifying tasks himself rather than directs or manages them, he is performing tasks 
necessary to provide a service or product, and as such, time spent on such tasks will not be 
considered time spent functioning in a managerial or executive capacity. 
 An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 
10 1 (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'Z., 19 I&N Dec. 593, 604 (Cornm. 
1988). 
Federal courts have generally agreed that USCIS "may properly consider an organization's small 
size as one factor in assessing whether its operations are substantial enough to support a manager." 
Family Inc. v. US. Citizenship and Immigration Services, 469 F. 3d 13 13, 13 16 (9 Cir. 2006) (citing 
with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel 
Page 8 
size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
As required by section 101 (a)(44)(C) of the 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 development of 
the organization. However, to establish that the reasonable needs of the organization justify the 
beneficiary's job duties, the petitioner must specifically articulate why those needs are reasonable in 
light of its overall purpose and stage of development. In the present matter, the petitioner has not 
explained how the reasonable needs of the U.S. company, particularly its non-managerial, day-to- 
day functions, are met through a single employee. 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. 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 sections 101 (a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 101 (a)(44). The reasonable needs of the 
petitioner may justify a beneficiary who allocates 5 1 percent of his duties to managerial or executive 
tasks as opposed to 90 percent, but those needs will not excuse a beneficiary who spends the 
majority of his time on non-qualifying duties. The petitioner must still establish that the beneficiary 
is to be employed in the United States in a primarily managerial or executive capacity. As discussed 
above, the petitioner has not established this essential element of eligibility. 
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has 
failed to establish that the beneficiary would be employed in the United States in a primarily 
executive or managerial capacity. For that reason, the petition will be denied. 
The second issue in this matter is whether the beneficiary was employed abroad in a primarily 
executive or managerial capacity. 
In the July 26, 2007 letter, the petitioner stated the following with respect to the beneficiary's 
overseas employment: 
[The beneficiary's] career with our parent corporation . . . began in 2002 in the 
position of General Manager. His employment with our parent corporation was 
continuous as of that year through his transfer to our location in Florida in 2006. 
[The foreign company] is dedicated to activities related to construction and other 
residential/commercial development projects. [The beneficiary] led the development 
of many large construction developments for [the foreign company] during his term 
as General Manager of our parent corporation located in Colombia. [The 
beneficiary's] special knowledge in Engineering and work experience in construction 
enabled him to coordinate all the necessary activities to bring to fruition many 
construction development projects in Colombia. [The beneficiary] oversaw execution 
Page 9 
of contractor agreements and completion of services requested, obtained the 
necessary building permits and purchase of land for projects along with the design 
and development of construction projects during his term as General Manager of [the 
foreign entity]. 
In the WE, the director requested a more detailed description of the beneficiary's duties abroad, 
including a description of what actual day-to-day tasks were involved in the completion of each 
duty, and an estimate of the percentage of time the beneficiary spent performing each duty. The 
director also requested a detailed organizational chart for the foreign entity that corresponds with the 
beneficiary's qualifying employment abroad and includes the names of all departments and teams, 
and the names and a detailed description of the job duties of the beneficiary's immediate supervisor 
and subordinates. The petitioner was also asked to provide a description of any contractors used by 
the company and the amount of control the beneficiary held over their work. 
In response to the RFE, counsel stated the following with respect to the beneficiary's job duties 
overseas: 
The Beneficiary completed duties at [the foreign entity] similar to those he is 
responsible for with [the U.S. company]. During his term with [the foreign entity] he 
oversaw all upper management personnel, managed the company's budget, payroll 
and supervised projects from initiation to completion. The main difference is that at 
[the foreign entity] he had professional management personnel to assists him with the 
company projects; [the U.S. company] has not been able to hire additional 
professional staff but intends to do so when possible. Therefore, at this time he 
supervises 100% of all activities of all aspects of the company's projects while before, 
at [the foreign entity], he had other professionals that he supervised in completing 
their assigned tasks. At this time, the main objective is to complete their pending 
contracts and locate new potential projects to secure continued growth and prosperity. 
The petitioner also described the beneficiary's job duties with the foreign entity as follows: 
1. Manage and supervise the business activities of the company: company's 
objective is the contract and execute the construction of construction projects [sic] 
2. Approve proposals of estimates and execution of projects 
3. Managed all client contracts 
4. Managed all independent contractors contracts for services [sic] 
5. Manage payroll 
6. Manage the budget and deal with company banking 
7. Manage and coordinate strategies to locate new clients 
8. Coordinate, manage and supervise the completion of construction projects 
9. Managelcontrol security 
10. Control quality control program IS0 9001 
1 1. Create company projects 
12. Manage and control the company workshops 
13. Manage control of all equipment, heavy machinery, and tools owned by the 
company. 
The petitioner submitted an organizational chart for the foreign entity, which shows the beneficiary 
as general manager, directly supervising a project director, an admin director, and an employee 
involved in "quality system." There are four employees listed under the project director, in "civil 
work", "architecture", "structure" and "machinery". Under the admin director are two employees 
listed as "accounting" and "accounting assistant." The petitioner provided a brief one-line job 
description for each of the employees listed. In addition, the petitioner submitted a list of the 
company's contractors and suppliers. However, no information was provided regarding the dates the 
contractors provided services for the company, or any detail regarding the work they performed. 
In concluding that the petitioner has failed to demonstrate that the beneficiary was employed abroad 
in a primarily executive or managerial capacity, the director noted that the petitioner failed to 
provide the requested estimate of time the beneficiary spent on his duties. The director also found 
that the petitioner only described the beneficiary's job duties in broad terms rather than providing the 
detailed descriptions requested. The director found that the petitioner has failed to meet its burden 
of establishing that the beneficiary "primarily" performed managerial or executive duties in his 
overseas position. 
On appeal, counsel reiterated that in his overseas position, the beneficiary "oversaw the execution of 
contractor agreements and completion of services requested, obtained the necessary building permits 
and purchase of land for projects along with the design and development of construction projects" 
and "managed a team of staff to bring the projects to fruition." Counsel contends that the list of 
duties provided by the petitioner in response to the WE was sufficiently detailed and demonstrated 
that the beneficiary's duties were supervisory in nature. The petitioner submitted no new evidence 
on appeal. 
Upon review, the AAO concurs with the director's finding that the petitioner has failed to establish 
that the beneficiary was employed abroad in an executive or managerial capacity. 
As previously noted, when examining the executive or managerial capacity of the beneficiary, the 
AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 204.5(i)(5). The 
petitioner's description of the job duties must clearly describe the duties to be performed by the 
beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id. 
Contrary to counsel's claim that the petitioner's response to the RFE was sufficiently detailed, the 
description of the beneficiary's overseas position suffers from the same vagueness of language 
previously discussed in connection with the U.S. job description. The petitioner employed such 
phrases as "managed all client contracts," "managed all independent contractors," "manage payroll," 
"manage the budget and deal with company banking, "manage and coordinate strategies to locate 
new clients, "and "coordinate, manage and supervise the completion of construction projects," all 
without elaborating on what tasks were actually performed as part of the "management." Again, the 
petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course 
of his daily routine in his position abroad, and the repeated use of the term "manage" provides no 
insight into what it was that the beneficiary actually did on a day-to-day basis in his job. The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 
F. Supp. at 1108. 
Further, it is noted that the petitioner failed to address the director's request for a complete, detailed 
description of the day-to-day duties performed by the beneficiary abroad, including the percentage of 
time spent on each duty. Again, the regulation states that the petitioner shall submit additional 
evidence as the director, in his or her discretion, may deem necessary. The failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 5 103.2(b)(14). Without a more detailed explanation of his job duties, the AAO is unable to 
determine to what portion of the beneficiary's time in his job abroad was actually spent on duties that 
could be categorized as managerial or executive, and what portion might have been spent performing 
non-qualifying duties. See Republic of Transkei v. INS, 923 F.2d at 177. As previously noted, 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. at 604. 
It is noted that the organization chart for the foreign entity indicates that there are two levels of 
subordinates below the beneficiary. Although the beneficiary 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 5 101 (a)(44)(A)(ii) of the 
Act. Here, the record is insufficient to show that the beneficiary's subordinates overseas indeed were 
supervisory, professional, or managerial personnel. Although the beneficiary's staff included two 
individuals with "director" titles that were placed above other personnel in the corporate hierarchy, it 
is not clear based on the information provided that these employees were "supervisory or 
managerial." The job description of the project director reads, "Ensures that the works were realise 
Refine with all the required technical and control of all its sub-contract required control of work 
Quality and Handling budget [sic]." To the extent that job description could be understood, the 
position does not appear to involve any supervisory or managerial tasks. Similarly, the job of the 
admin director appeared to involve "support in accounting payroll and legal support to the manager" 
rather than any supervision of other employees. Thus, the petitioner has not established that these 
employees had supervisory or managerial roles, despite their titles, nor has the petitioner provided 
any evidence to show that any positions under the beneficiary's supervision in the foreign entity 
required a bachelor's degree, such that the employees in those positions could be classified as 
"professionals."2 As such, the record is insufficient to show that the beneficiary's subordinate 
2 
 In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Section 
10 1 (a)(32) of the Act, 8 U.S.C. 5 1 10 1(a)(32), states that "[tlhe term profession shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 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. 817 (Comm. 
Page 12 
employees are supervisory, professional, or managerial, as required by section 10 1 (a)(44)(A)(ii) of 
the Act. 
The AAO notes that the petitioner submitted a list of contractors purportedly utilized by the foreign 
entity. However, the petitioner has neither presented evidence to document the existence of these 
contractors nor identified the dates or nature of the services they provided. Additionally, the 
petitioner has not explained how the services of the contractors obviated the need for the beneficiary 
to primarily conduct the foreign entity's business. Without documentary evidence to support its 
statements, the petitioner does not meet its burden of proof in these proceedings. Matter ofSofJici, 22 
I&N Dec. at 165. 
In light of these deficiencies in the evidence, the AAO finds that the petitioner has failed to establish 
that the beneficiary was employed abroad in an executive or managerial capacity as required by 
section 203(b)(l)(C) of the Act, 8 U.S.C. 5 1153(b)(l)(C). For this additional reason, the petition 
will be denied. 
Finally, the AAO acknowledges that USCIS has previously approved an L-1A petition filed by the 
petitioner on behalf of the instant beneficiary. It must be noted that many 1-140 immigrant petitions 
are denied after USCIS approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103. Examining the consequences of 
an approved petition, there is a significant difference between a nonimmigrant L-IA visa 
classification, which allows an alien to enter the United States temporarily, and an immigrant E-13 
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: $8 204 and 214 of the Act, 
8 U.S.C. $5 1154 and 1184; see also 5 316 of the Act, 8 U.S.C. 5 1427. Because USCIS spends less 
time reviewing I- 1 29 nonimmigrant petitions than I- 140 immigrant petitions, some nonimmigrant L- 
1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; 
see also 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). Despite the previously approved petition, USCIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a 
subsequent petition. See section 291 of the Act. Based on the lack of required evidence of eligibility 
in the current record, the AAO finds that the director was justified in departing from the previous 
nonimmigrant petition approval by denying the instant petition. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 1 1 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 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. In the instant case, the petitioner has not, 
in fact, established that a bachelor's degree is actually necessary to perform the work of any of the beneficiary's 
subordinates. 
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 director's decision will be affirmed and the petition 
will be denied. 
ORDER: The appeal is dismissed.