dismissed EB-1C Case: Event Management

U.S. Department of Homeland Security 
Identifying data deleted to 
prevent clzc-'p unwarranted 
invasion of p~sonal privacy 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: NOV 0 3 20051 
LIN 07 140 53082 
IN RE: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(l)(i). 
r/ 
' 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 claims to be a corporation organized in the State of California that engages in the 
business of event management, production and design. The petitioner seeks to employ the beneficiary 
as its chief executive officer. 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 (Act), 8 U.S.C. 5 1 153(b)(l)(C), as a multinational executive or manager. 
On June 13, 2008, the director denied the petition determining that the petitioner failed to establish 
that the beneficiary was employed abroad, or would be employed in the United States, in a qualifying 
managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the director's denial of the petition is in error. 
Counsel asserts that the director failed to take into account the petitioner's "explanation that the daily 
operational tasks of the business are carried out by third-party vendors." Counsel submits a brief and 
additional documentation in support of these assertions. 
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. 8 204.50')(5). 
The first issue in this matter is whether the beneficiary was employed abroad in a primarily executive 
or managerial capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 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. 8 1 101 (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. 
In a letter dated March 27,2007, accompanying the Form 1-140, Immigrant Petition for Alien Worker, 
the director of 20120 Productions Europe Ltd., the petitioner's affiliate in Scotland, stated that the 
beneficiary was Director and Corporate Secretary of the foreign company from 1990 to August 2002. 
The letter contains the following statement regarding the beneficiary's position abroad: 
As a co-Founder and co-Director of the UK company, [the beneficiary] has played a 
key executive and managerial role within the organization. While in the U.K., he co- 
directed and managed the company's operations, finances, administration, and 
marketing. He also managed major company projects, including event and video 
productions, multimedia and graphic design. In addition, he recruited and trained 
employees for the Production, Design, and Administration departments. [The 
beneficiary's] training and personnel management was a key factor in the U.K. 
company's receipt of the "Investor in People" status (recognition of excellent Employee 
Training and Personnel Management standards). 
The petitioner also submitted an organizational chart labeled "20120 Productions Europe Ltd. 
Organisational Chart," which lists the beneficiary as "C.E.O. USNDirector Europe," with direct 
supervision of a "Production" employee and indirect supervision of employees in the Europe entity. 
On March 13, 2008, the director issued a request for further evidence (RFE). In connection with the 
beneficiary's position abroad, the director requested a more detailed description of the beneficiary's 
duties along with an estimate of the percentage of time the beneficiary dedicated to each specific duty, 
and an organizational chart that corresponds with the beneficiary's period of qualifying employment 
abroad. The petitioner was instructed to include on the chart all departments and teams and the names 
and detailed descriptions of the job duties of the beneficiary's immediate supervisor and subordinate 
employees. 
In response to the RFE, the petitioner submitted a more detailed description of the beneficiary's 
position in the foreign entity, grouping the beneficiary's responsibilities into the following categories 
and assigning a percentage of time spent on each category: 
Organizational Goals and Policies -- 15% 
Marketing Strategy -- 25% 
Client Development -- 25% 
Project Management -- 1 5% 
Personnel Management -- 15% 
Business Management -- 5% 
The tasks listed under these categories include, among other duties: developing and planning overall 
business strategy; financial planning; ensuring legal compliance; formulating and executing marketing 
strategy; functioning as primary client liaison; presenting company to potential clients; management 
and coordination of event production staff on-site; directing video program production; set and 
evaluate goals for company staff; assign specific projects to staff and supervise workload; and 
supervise, train, evaluate, hire and terminate staff. The petitioner indicated that all of the beneficiary's 
executive and managerial duties were shared with his co-director in the foreign entity. 
The petitioner also submitted an organizational chart entitled "20120 Production Europe Ltd - 
Employees from 1990-2002." The chart shows the beneficiary and his co-director at the top of the 
organizational hierarchy with employees listed in four different departments below them. Based on 
their stated dates of employment, the following staff appeared to have been in place during the year 
preceding the beneficiary's transfer to the United States: a marketing manager in the marketing 
department; in the administrative department, one office manager and three admin assistants; in the 
production department, five producers and one production assistant; and in the DesigdIT Department, 
one senior designer, two designers, and one IT coordinator. The directors' direct reports during that 
time included the marketing manager, the office manager, and the senior designer. The petitioner also 
provided a brief description of the duties of each of the beneficiary's subordinates in the foreign entity. 
The responsibilities of the directors' direct reports are described as follow: 
Marketing Manager 
Formulate marketing communications strategy 
Implement communications strategy 
Build awareness of company 
Initial contact with potential Clients 
Assist Directors in creating Client relationships 
Public relations coordinator for company 
Office Manager 
Responsible for administrative needs of company 
Deal with Director's correspondence 
Deal with building matters 
Supervise Admin Assistant(s) 
Assist revenue-generating departments with project requirements (Design and 
Production) 
Organize logistics for company personnel (flights, hotels, subsistence) 
Responsible for day-to-day financial accounts compilation 
Senior Designer 
Responsible for successful completion of all design-related projects 
Supervise Design Dept staff 
Instruct and train Designers 
Ensures consistency of design elements 
Control department costs and project budgets 
In his decision denying the petition, the director noted that the description of duties for the 
beneficiary's position abroad and that in the United States were identical except for several tasks under 
"personnel management." The director further observed that, of the beneficiary's total time, "65% was 
devoted to marketing client development and functioning as the main liaison with clients for projects" 
and "responding to correspondence fiom clients, vendors, and others, and maintaining business 
requirements" filled 5% of the beneficiary's time.' These tasks, the director found, were daily 
operational tasks necessary to ensure the operation of the petitioner's business and therefore cannot be 
deemed qualifying. The director concluded that "the petitioner has failed to establish that the 
beneficiary supervised and controlled the work of other supervisory, managerial, or professional 
employees, or managed an essential function for either the U.S. position or the position abroad." 
On appeal, counsel asserts that the beneficiary and his co-director equally shared executive 
responsibilities for the foreign company fiom the time the company was founded in 1990 until 2002. 
Counsel maintains that the beneficiary's standing as an executive in the United Kingdom was 
recognized by others in the business community, as evidenced by his membership in an executive- 
level network and invitations to events reserved for executives in the creative industries. Counsel 
further asserts that, in his capacity as co-director of the U.K. company, the beneficiary supervised 
multiple employees in supervisory and managerial capacities. Counsel further emphasized that the 
beneficiary had the authority to hire and fire such employees and exercised discretion over the day-to- 
day operations of the U.K. organization. Therefore, counsel concluded, there is no basis for the 
director's conclusion that the beneficiary did not serve in a managerial capacity abroad. 
Counsel submits a letter dated July 2, 2008 fiom the beneficiary's co-director in the foreign entity. In 
response to the director's determination that the beneficiary spent the majority of his time providing 
direct services to clients, the beneficiary's co-director stated that the nature of the corporate 
communications industry is such that corporate clients rely on the top executives of communications 
firms to be present and involved in the initial client contact, creative development, negotiations and 
the making of initial strategic decisions. He further explained: 
[Mleeting with top executives of corporate clients and fostering business relationships 
with those clients are at the ven, core of successful direction and management of our 
organization. Our whole business turns on identifying clients and meeting their 
creative design or event needs. Without [the beneficiary's] constant attention to 
cultivating new and existing client relationships, there would be no corporate clients, 
and therefore no need for provision of our services. 
With respect to the beneficiary's responsibilities in the foreign company, he stated: 
I 
 It is unclear whether the director's analysis of the apportionment of the beneficiary's time applied to the beneficiary's 
position in the U.S. or abroad, or both. 
We both directed the organization and made key decisions together. We also both 
supervised other professional employees in the production, design, and marketing 
departments - including a Marketing Manager and an Office Manager, as well as 
Producers and Designers. In addition, we both continued to work on client 
development and project management at the highest level - maintaining continuing 
communication with corporate clients; overseeing creative direction on client projects; 
managing the creative team working on the projects; and providing on-site management 
for events for our most important clients. Just prior to establishing the U.S. company in 
2002, we had a total of 11 employees who assisted us in the provision of design, 
production and event management services for our clients. 
The petitioner submitted on appeal letters from the foreign entity's bank, attorneys and accountants, 
attesting that during the years of 1999-2002, the beneficiary "has been involved in all executive 
decision making" and "has taken full financial responsibility" for the company. 
Upon review, the AAO finds that the evidence of record is sufficient to demonstrate that the 
beneficiary was employed abroad in a primarily executive or managerial capacity. The director's 
decision with respect to that issue will be withdrawn. 
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. 8 204.5(j)(5). However, beyond the 
required description of the beneficiary's job duties, 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. In this 
matter, the AAO finds that the petitioner has sufficiently demonstrated that the beneficiary was 
employed abroad in a primarily executive and managerial capacity. While some of the tasks listed on 
the beneficiary's job description may be characterized as non-qualifying tasks, the AAO finds the 
evidence does not indicate that these comprised the majority of the beneficiary's job duties abroad. 
The AAO further notes the evidence shows that, during the last years of his employment in the foreign 
entity prior to his transfer to the United States, together with his co-director, the beneficiary directed 
and managed a staff of eleven employees in the foreign company, including at least two managerial 
employees. 
The AAO is satisfied that the evidence of record sufficiently demonstrates that as one of two directors 
of the foreign company, the beneficiary directed the management of the organization; established the 
goals and policies of the organization; and exercised wide latitude in discretionary decision-making as 
one of the two directors and owners of the company. The record also sufficiently demonstrates that 
the beneficiary was responsible for managing the organization; supervised and controlled the work of 
managerial employees over whom he had the authority to hire, fire or take other personnel actions; 
and had the authority to exercise discretion over the day-to-day operations of the company. Based on 
the evidence of subordinate staffing available to the beneficiary in the foreign company and the duties 
of the beneficiary and his subordinates, the AAO is satisfied that the beneficiary primarily performed 
the high-level duties associated with the statutory definition of managerial capacity. The petitioner 
has adequately demonstrated that that the majority of the day-to-day, non-managerial functions of the 
foreign company was performed by the beneficiary's subordinate managers and employees. 
Based on the foregoing, the AAO finds that the petitioner has established that the beneficiary was 
employed by the company abroad in a primarily executive or managerial capacity. Accordingly, the 
director's decision with respect to the beneficiary's qualifying employment abroad will be withdrawn. 
The second issue in this matter is whether the beneficiary would be employed by the U.S. company in 
a primarily executive or managerial capacity. 
In his March 27, 2007 letter submitted with the Form 1-140, the beneficiary's co-director in the foreign 
entity described the beneficiary's duties in the U.S. company as follow: 
Executive duties 
As CEO of [the petitioner], [the beneficiary] directs the overall management of the U.S. 
organization. He is responsible for setting the financial goals and policies of the 
company. He makes key decisions regarding the company's marketing strategy, client 
development, project management, and organizational goals. As CEO, he is the highest 
level executive of the U.S. organization, reporting only to the other co-Director. 
Since August 2002, [the beneficiary] has been solely responsible for establishing and 
overseeing the U.S. office and clientele. [The beneficiary] meets with the targeted U.S. 
companies to market the [U.S. company's] services; negotiate business with new and 
existing clients; and maintains relationships with third party vendors to supply 
equipment and personnel for major client events. In addition, [the beneficiary] has 
recruited, hired and trained a Production and Marketing Associate . . . to assist with 
client development and client projects. This appointment has proven invaluable in 
developing the US company's capabilities and self-sufficiency in the US market. The 
position is fully funded from US-generated revenues. 
Managerial duties 
[The beneficiary's] role as CEO includes significant managerial responsibility. He is 
the main contact for clients, from the initial stage of negotiating prices for services, to 
ensuring that the client's ultimate objectives are achieved. For design projects, [the 
beneficiary] delegates work to the U.K. design team, and ensures that clients' deadlines 
are met. For event production and management, [the beneficiary] is responsible for 
providing business proposal and determining overall cost. He manages the hiring of 
third-party vendors for needed supplies, equipment, and services. If required, he 
provides on-site supervision at the scheduled event location to ensure that the event 
runs smoothly. He also directly supervises a professional employee, as described 
above. 
The letter stated that a vendor list and project proposal details were attached; however, such 
documents were not found in the record. Copies of the beneficiary's and the production and marketing 
associate's resumes were submitted with the original petition. 
In the RFE, the director requested a more detailed description of the beneficiary's duties in the U.S. 
entity, along with an estimate of the percentage of time the beneficiary would dedicate to each specific 
duty. The director also requested a detailed description of the job duties for the beneficiary's 
subordinate employee in the United States. 
In response, the petitioner submitted a description of the beneficiary's U.S. duties that was identical to 
that of his duties in the foreign company, with the exception of the "personnel management" section, 
where the beneficiary's supervisory responsibilities pertain only to the Production and Marketing 
Associate rather than to a multi-person staff. 
The petitioner also submitted a description of a "typical day" for the beneficiary; a description of 
"client project-related managerial responsibilities" relating to a sample project in March 2008; IRS 
Forms W-2 for 2006 and 2007 for the beneficiary and his U.S. subordinate; and proposal outlines and 
invoices relating to three separate projects in March and June 2008. 
The petitioner provided a description of the responsibilities of the beneficiary's sole subordinate in the 
United States, the production and marketing associate, which include administrative and secretarial 
tasks such as dealing with correspondence, filing, answering the phone, inputting account information; 
marketing tasks such as researching potential clients and assisting in creating presentations and 
promotion materials; and a number of project-related duties in design, video production and onsite 
event production. 
In denying the petition, the director found that the petitioner failed to establish that the beneficiary 
would be employed in the United States in a primarily executive or managerial capacity. As 
previously noted, the director observed that, of the beneficiary's total time, "65% was devoted to 
marketing client development and functioning as the main liaison with clients for projects," and 5% to 
"responding to correspondence from clients, vendors, and others, and maintaining business 
requirements," which the director found to be non-qualifying tasks. The director further determined 
that, although the petitioner asserted that the beneficiary supervises professional employees in the U.S. 
company, the record lacks evidence demonstrating that the beneficiary's sole subordinate is in fact 
employed in a professional capacity. The director concluded that the petitioner has failed to establish 
that the beneficiary supervised and controlled the work of other supervisory, managerial, or 
professional employees, or managed an essential function for the U.S. company. The director further 
noted that the company's size, by itself, is not a determining factor, but the petitioner still has the 
burden of proving that it has the necessary staff to ensure that the beneficiary can devote the majority 
of his time to executing managerial or executive functions. The director concluded that, based on the 
record, the petitioner has not established that the beneficiary would be employed in the United States 
in a primarily executive or managerial capacity. 
On appeal, counsel contends that the beneficiary's position in the United States is both executive and 
managerial in nature. Referring to the letter of July 2, 2008 from the co-director of the foreign entity, 
counsel asserts that the beneficiary directs the management of the U.S. organization and establishes its 
goals and policies with respect to business development, strategy, and long-term goals; that his duties 
necessarily include oversight and supervision of the company's essential functions of client 
development and project management; and that the beneficiary makes all discretionary decisions for 
the U.S. company and does not receive any supervision fi-om the U.K. company. 
Counsel further claims that the beneficiary does not engage in the direct provision of services, and that 
"the company relies mainly on the services of third-party vendors to carry out operational tasks 
associated with the creation and execution of client materials and events." In support of this assertion, 
counsel refers to the company's tax returns for 2005 and 2006, which counsel claims indicate that 
third-party vendors constitute 60% of expenses needed to keep the business running. 
Counsel further claims that the beneficiary satisfies the definition of a "managerial employee" both as 
a manager of other employees and as a manager of a function. Counsel contends that the sole 
employee under the beneficiary's supervision in the United States qualifies as a professional employee. 
Counsel asserts that the beneficiary also qualifies as a function manager, since "the essential purpose 
of the U.S. company is to obtain clients and provide them with event management and design services, 
and as CEO, [the beneficiary] manages both client development and project oversight for all U.S. 
clients and client projects." Alternatively, counsel suggests that "the U.S. company may be viewed as 
a department or sub-division of the U.K. organization, with [the beneficiary] as the highest-level 
managerial company." Counsel asserts that the beneficiary is able to delegate operational tasks to 
third-party vendors, to the marketing and production associate, and a contract sales associate, and 
consequently is able to spend the majority of his time on managerial duties. 
The petitioner submitted additional evidence on March 29,2009. The new evidence includes the U.S. 
and foreign companies' financial and tax information for the year 2008; an updated organizational 
chart and appendix; and employment information pertaining to a new employee who replaced the 
previous Production and Marketing Associate as of September 2008. The new organizational chart, 
which appears to reflect the staff after September 2008, places below the production and marketing 
associate a sales associate who purportedly works on a commission basis, four individuals listed as 
"third-party vendors," and five individuals listed as "production fi-eelancers." The appendix sets forth 
brief descriptions of the duties of the production and marketing associates, sales associates, vendors 
and freelancers on the chart, as well as the remuneration rates and total amounts paid in 2008 and 2009 
for the vendors and freelancers. 
Page 1 I 
Upon review, 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. 
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. § 204.5(j)(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. However, as previously 
noted, the AAO must also examine the claimed managerial or executive capacity of a beneficiary 
based on the totality of the record, 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. 
Counsel's contentions on appeal are primarily premised on the claim that the company relies mainly 
on the services of third-party vendors to carry out the operational tasks of the company so that the 
beneficiary does not have to be involved in directly providing the company's services. However, the 
petitioner has not presented sufficient evidence to document the existence of these third-party 
vendors, or the extent of the services they provide to the company. On appeal, the petitioner 
submitted a document entitled "Preferred Vendor List and Approximate Vendor Spend" which lists 14 
separate companies and individuals that purportedly provide services at an approximate annual cost to 
the company of $147,000. Counsel claims that this amount constitutes 60% of expenses needed to 
keep the business running, as stated under "Cost of Goods Sold" in the company's tax returns for 2005 
and 2006. While the 2005 Form 1120 states the total cost of good sold as $151,484, and the 2006 
Form 1120 states the cost of goods sold for the year as $95,215, there is insufficient information on 
the tax returns to illustrate how these amounts may have been allocated to vendors and independent 
contractors. Further, aside from the "Preferred Vendor List" and a sample contract with a single 
independent contractor, the petitioner has provided no evidence of contractual agreements with 
outside vendors or contractors for services, or any evidence of payment made to and received by any 
such contractors. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 
165 (Comm. 1998) (citing Matter of Treasure Cvaft of California, 14 I&N Dec. 190 (Reg. Comrn. 
1972)). 
The AAO acknowledges the evidence submitted by the petitioner in March 2009, including the 
organizational chart depicting the U.S. staff of the beneficiary as including a commission-based sales 
associate and a number of third-party vendors and freelancers. However, the AAO notes that the 
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 of Katigbak, 14 
I&N Dec. 45, 49 (Comm. 1971). To the extent the additional evidence pertains to the staffing of the 
U.S. company during the 2008-2009 period, it will not be considered in the determination of the 
beneficiary's executive or managerial capacity at the time the petition was filed in 2007. It is noted 
that, on appeal, the petitioner submitted a copy of an "Engagement Agreement with Independent 
Contractor" dated in March 2007 between itself and Adscholars LLC for commission-based sales 
services. However, there is no evidence in the record of commissions paid at any point in time to 
or to 
 the named sales associate in the contract. 
 Further, although the 
petitioner claimed that it has been utilizing other contractors and freelancers since before 2007, the 
petitioner has submitted no evidence, such as contracts of service or proof of payment to theses 
individuals by the company, to support this claim. Again, 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. at 165. 
Accordingly, the AAO must conclude that the petitioner has not shown that it employs any staff or 
utilizes any contractors other than the beneficiary and one subordinate employee, the production and 
marketing associate, whose employment by the petitioner is corroborated by the Forms W-2 in her 
name. 
With respect to the beneficiary's responsibilities within the company, the petitioner has submitted job 
descriptions for the beneficiary that list the same duties, with the same allocation of time to different 
categories of duties, in his positions in both the foreign and U.S. companies. Given that the 
beneficiary co-directed a subordinate staff of eleven persons in four departments in the foreign entity, 
and is assisted by a single employee in the United States, the AAO finds it reasonable to question the 
accuracy of the petitioner's claim that the beneficiary's duties in the United States are exactly the same 
as his duties overseas. Under the circumstances, it is reasonable to question whether a single 
employee could provide the same support as eleven employees, so that the beneficiary would be 
sufficiently relieved of non-qualifying duties so that he could perform primarily executive andlor 
managerial duties in the United States to the same extent he did in his position abroad. Doubt cast on 
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N 
Dec. 582,591 (BIA 1988). 
Even assuming that the disparity in staffing need between the two companies can be attributed to the 
difference in the level of activity and volume of business of the two companies, the AAO finds the 
evidence of record does not sufficiently demonstrate that the beneficiary functions in a primarily 
executive or managerial capacity in the U.S. company. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(i) and (ii). 
Personnel managers are required to primarily supervise and control the work of other supervisory, 
professional, or managerial employees. As previously noted, the evidence is insufficient to show that 
there are other employees or contractors under the supervision of the marketing and production 
associate, the beneficiary's sole subordinate employee in the United States, thus she could not be 
considered a "supervisory" or "managerial" employee. She also does not qualify as a professional 
employee, contrary to counsel's contention on appeal. In evaluating whether the beneficiary manages 
professionaI employees, the AAO must evaluate whether the subordinate positions require a 
baccalaureate degree as a minimum for entry into the field of endeavor. Section 101(a)(32) of the 
Act, 8 U.S.C. 5 1101(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. 81 7 (Comm. 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 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, while the petitioner claimed 
that the beneficiary's subordinate employee has a bachelor's degree and that the degree is required for 
her position, there is no evidence to support the claim that a bachelor's degree is actually necessary to 
perform the work she purportedly performs. Thus, the petitioner has not shown that the beneficiary 
manages any supervisory, professional, or managerial employee, as required by section 
101 (a)(44)(A)(ii) of the Act. 
The record also does not support counsel's claim that the beneficiary primarily functions in a 
managerial capacity 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 101 (a)(44)(A) 
of the Act, 8 U.S.C. § 1 101 (a)(44)(A). In such a situation, the assumption would be that there are 
other employees who would carry out the functions of the organization, even though those employees 
may not be directly under the function manager's supervision. As such, it remains the petitioner's 
obligation to establish that the day-to-day non-managerial tasks of the function managed are 
performed by someone other than the beneficiary. As discussed above, the petitioner has failed to 
provide evidence to substantiate its claim that the beneficiary has sufficient staff or contractual service 
providers to relieve him from having to primarily perform the non-qualifying tasks of the company. 
Similarly, counsel's claim that the beneficiary functions in a primarily executive capacity in the United 
States is not persuasive. The statutory definition of the term "executive capacity" focuses on a 
person's elevated position within a 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. 5 1 101(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 have a subordinate level of managerial employees for the 
beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the 
organization rather than the day-to-day operations of the enterprise. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. Again, the petitioner has failed to show that 
there is a subordinate level of managerial employees for the beneficiary to direct, or indeed, that there 
is sufficient staffing to relieve the beneficiary from having to focus primarily on the day-to-day 
operations of the company rather than on its broader goals and policies. 
The AAO notes that, 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. At the time of filing, the petitioner was a five-year-old 
company that claimed to have a gross annual income of $220,000. As discussed, the petitioner did not 
submit sufficient evidence to demonstrate that it employed more than one single subordinate 
employee who would relieve the beneficiary from perform the actual day-to-day, non-managerial 
operations of the company. 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 
as chief executive officer and one other employee. The AAO acknowledges that, as the petitioner 
asserted, the beneficiary "is not the person who is designing a client's corporate logo" or "the person 
who is pointing the spotlight on a keynote speaker at a corporate event." However, the petitioner has 
not sufficiently demonstrated that there is sufficient staff to relieve the beneficiary from primarily 
performing the coordinating and administrative tasks associated with the design projects and corporate 
events that constitute the services and products provided by the company. 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 Intn 'Z., 19 I&N Dec. 593, 604 (Comm. 1988). 
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. 
In light of the above, the AAO finds that the evidence is insufficient to establish that the beneficiary 
would be employed by the United States company in a primarily executive or managerial capacity. 
For that reason, the petition wiI1 be denied. 
Finally, the AAO acknowledges that USCIS has previously approved multiple L-1A petitions 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. 1 103. Examining the consequences of an 
approved petition, there is a significant difference between a nonimmigrant L-1A 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: §§ 204 and 214 of the Act, 8 U.S.C. 
$5 1154 and 11 84; see also 5 3 16 of the Act, 8 U.S.C. 5 1427. Because USCIS spends less time 
reviewing I- 129 nonimmigrant petitions than I- 140 immigrant petitions, some nonimmigrant L- 1 A 
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. 8 2 14.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L- 
1A petition's validity). Despite the previously approved petitions, USCZS 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 
nonimrnigrant petition approval by denying the instant petition. 
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. 8 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.