dismissed EB-1C Case: Food Product Distribution

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prevent clt~:., --!vtam3nted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
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 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. 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. 5 103.5(a)(l)(i). 
L&@L 
&Perry Rhew 
' 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 California that engages in the marketing and 
distribution of food products. The petitioner claims to be a wholly-owned subsidiary of - 
., a Korean company. It seeks to employ the beneficiary as its sales administration 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. 
§ 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner had not established that the 
beneficiary has been or will be employed 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. tj 204.5Cj)(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. 5 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 10 1 (a)(44)(B) of the Act, 8 U. S.C. tj' I 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. 
In a letter dated July 25, 2007 submitted with the Form 1-140, Immigrant Petition for Alien Worker, 
the petitioner stated that the beneficiary would be acting as the U.S. coinpany's "top managerial sales 
officer" with the following job duties: 
Develops and reviews standards, policies and procedures for all functions 
involved with or related to sales activities in the U.S., Canada and Mexico; 
Communicates to the sales staffs in the company, the company's goals for market 
leadership, superior customer loyalty, and returns on investment [sic]. 
Supervises sales activities and staffs of the company's branch offices in the U.S., 
Canada and Mexico - plans, analyzes and implements the advertisements and 
promotions in the same region to increase sales volume; 
Manages the company's product distribution lines, transportation of products and 
exports to the third countries; 
Maintains inventory and other assets related to the company's sales functions. 
Assures that all sales agreements and other documents necessary to the sale of the 
company products are completed accurately and in full compliance with all local, 
state, and federal laws, and submitted to the accounting office in a proper and 
timely fashion. 
Assures that the sales employees are staffed with individuals who are competent, 
trustworthy and adequately trained for their positions. 
Develops and manages the company's internet home page, other internet systems 
and ERP (SAP) System; 
Receives and reviews all customer satisfaction surveys and customer complaints 
and trends, and performs sales service failure analysis and corrective actions with 
appropriate personnel; 
Collects data about competitors and analyzes their prices, sales and strategies of 
marketing; and 
Provides the company with information and suggestions regarding the promotion, 
advertisement and pricing of the products. 
The petitioner indicated on the Form 1-140 that it has 35 employees. The petitioner submitted its 
organizational chart, which shows the beneficiary reporting to the "VP Sales Executive" and 
overseeing eight employees in the areas of planning, marketing, purchasing & trading, logistics, and 
design & MIS. The petitioner also submitted California Forms DE-6 for the second quarter of 2005 
through the first quarter of 2007, the latest of which lists seven employees, only four of whom 
correspond to the employees listed on the organizational chart.' 
' The AAO notes that the petitioner may have submitted an incomplete copy of the Form DE-6 for 
the first quarter of 2007, as the single page of that document in the record indicates that it was "page 
1 of 3." It is noted that the Form DE-6 for the last quarter of 2006 is three pages long and lists 19 
employees. 
On August 21,2008, the director issued a request for further evidence (RFE), in which he instructed 
the petitioner to submit the following evidence relating to the beneficiary's position with the U.S. 
company: 
1. A more detailed description of the duties to be performed by the beneficiary, 
including the day-to-day tasks involved in the completion of each duty and an 
estimate of the percentage of time the beneficiary would dedicate to each duty. 
2. Clarification as to why the employees listed on the U.S. organizational chart do 
not match those on the company's Form DE-6 in 2007. 
3. A detailed organizational chart showing the beneficiary's position in the U.S. in 
relations to others in the company, and including the names of all departments and 
teams and the names and detailed description of the job duties for the 
beneficiary's immediate supervisors and subordinate employees. 
4. For any claimed professional, the petitioner is asked to provide the name, 
profession, minimum educational requirements and field of studies, and 
documentation that the individual has met those requirements. 
In response to the RFE, the petitioner provided a description of the beneficiary's job duties in the 
U.S. which includes the following categories and percentages of time attributable to each category: 
Establish the company's mid- and long-term (3- and 5-year terms) goal for the 
operation of the company (I 5%) 
Set up detailed yearly sales and export goals (1 5%) 
Pricing and managing (1 5%) 
Development of new products (1 0%) 
Budget planning (1 0%) 
Advertisement planning and assessment 1 0%) 
Making contracts with logistics-related companies (1 0%) 
Resolve media-related issues (5%) 
Development of new market (5%) 
Employee trainingleducation and performance assessment 5%) 
The tasks involved in each of the above categories are described in some detail. With respect to the 
beneficiary's subordinates, the petitioner explained that the names listed on the original 
organizational chart did not match those on the DE-6 Forms because the chart listed them by their 
nicknames rather than their legal full names. The petitioner noted that two of the individuals on the 
original chart were no longer employed by the company. The petitioner submitted a revised U.S. 
organizational chart, dated September 23, 2008 which shows the beneficiary reporting to the 
company's president and supervising six employees, including two each in "Marketing and 
Planning" and "Purchasing and Trading," and one each in "Design and Management Information 
Page 6 
System" and "Logistics." The petitioner also submitted job descriptions for the company's president 
and the beneficiary's subordinate employees, including (1) a manager and an assistant manager in 
"Marketing and Planning"; (2) an assistant manager in "Design and Management Information 
System"; (3) two assistants in "Purchasing and Trading"; and (4) a manager, an assistant manager, 
and an assistant in "Logistics." The subordinate employees' duties were described per group rather 
than per individual employee. 
On October 27, 2008, the director denied the petition, concluding that the petitioner had not 
established that the beneficiary "has been or will be employed in a primarily managerial or executive 
capacity." Specifically, the director found that the record does not demonstrate that the majority of 
the beneficiary's duties have been or will be primarily directing the management of the organization, 
or that the beneficiary will be primarily supervising a subordinate staff of professional, managerial, 
or supervisory personnel who would relieve him from performing non-qualifying duties. Further, 
the director found, the petitioner has not demonstrated that it has reached a level of organizational 
complexity wherein the hiringlfiring of personnel, discretionary making, and setting company goals 
and policies constitute significant components of the duties performed on a day-to-day basis, nor has 
it been shown that the beneficiary manages an essential function of the organization or that he 
operates at a senior level within an organizational hierarchy. 
On appeal, counsel contends that the director's decision is in error, and that the beneficiary indeed 
qualifies as a manager for purposes of the benefit sought. Specifically, counsel asserts that the 
beneficiary manages an essential function of the company. Counsel claims that the beneficiary's 
function is "sales administration," to be distinguished from the sales function, and describes it as 
"market research and analysis, and utilizing the results of such research and analysis to plan and 
implement marketing campaigns, identify and target appropriate demographics" and "package, 
warehouse and ship the products that are sold; and arrange all aspects of product import and export 
necessary to provide the products to be sold." Counsel cites to, and draws comparison with, several 
unpublished AAO decisions in support of the claim that the beneficiary qualifies as a function 
manager. 
In addition, counsel contends that, despite the small number of employees under his supervision, the 
beneficiary's job does not involve "first line supervision," and even if it does, a substantial portion of 
the beneficiary's supervisory duties would involve the supervision of professional employees. 
Counsel asserts that the "Marketing and Planning subfunction clearly involve the professional 
occupation duty set of Market Research Analyst or Economist," which counsel claims is among 
those occupations described in the Department of Labor's O*NET as requiring a minimum of a 
bachelor's degree or equivalent. Counsel points out that the individuals with the titles of manager 
and assistant manager of Marketing and Planning both possess bachelor's degrees and therefore 
qualify as professionals. 
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. 
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 
functions. 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. 
In considering whether the beneficiary would function in a managerial capacity, the AAO notes that 
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 1 10 1 (a)(44)(A)(i) and (ii). 
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)(ii) of the Act, 8 U.S.C. 5 1 101 (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 in managing the essential function, 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. See 8 C.F.R. 
204.5(j)(5). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate 
that the beneficiary manages the function rather than performs the duties related to the function. 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 Intn'l., 19 I&N Dec. 593, 604 (Comrn. 
1988). In this matter, the petitioner has not provided evidence that the beneficiary manages an 
essential function. 
Here, counsel claims on appeal that the beneficiary manages an essential function, namely "sales 
administration," which is different from the sales function. Counsel characterizes "sales 
administration" as a function that involves marketing, on the one hand, and packaging, warehousing, 
and other product delivery responsibilities, on the other hand. Counsel claims that as the beneficiary 
Page 8 
reports directly to the company's president, he and his team are separate from the chain of command 
under the vice president of sales. 
Upon review, the AAO finds that the record contains inconsistent information regarding the 
corporate chain of command of the company as well as the beneficiary's duties and function within 
the company. With respect to the chain of command, the organizational chart submitted with the 
initial petition places the beneficiary and the "sales administration" staff under the vice president of 
sales, while the chart submitted in response to the WE shows that the beneficiary reports directly to 
the president of the company. The petitioner has not accounted for these different representations of 
the beneficiary's place within the corporate hierarchy. It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
With respect to the beneficiary's function, the record contains disparate accounts of the beneficiary's 
job duties that do not consistently support counsel's claim that the beneficiary is involved in a 
separate function from the sales function. In the July 25, 2007 letter, the petitioner identified the 
beneficiary as "the U.S. subsidiary's top managerial sales officer" and listed responsibilities that 
would appear to fall squarely within the area of sales, such as "[s]upervises sales activities and staffs 
of the company's branch offices in the U.S., Canada and Mexico"; "maintains inventory and other 
assets related to the company's sales functions"; "[alssures that the sales employees are staffed with 
individuals who are competent, trustworthy and adequately trained for their positions"; and 
"[rleceives and reviews all customer satisfaction surveys and customer complaints and trends, and 
performs sales service failure analysis and corrective actions with appropriate personnel." These job 
duties would suggest that the beneficiary's role falls within the sales department. 
However, the beneficiary's job description that was provided in response to the RFE presents a 
different set of duties, which appears to indicate that the beneficiary is more involved in marketing 
and market research. For example, the beneficiary is said to spend 15% of his time "establish[ing] 
the company's mid- and long-term (3- and 5-year terms) goal for the operation of the company." 
This involves the beneficiary "collecting data about competitors [of the company], analyzing them 
and making reports on benchmarking their meritorious sales strategies and techniques." In addition, 
spending 10% of his time on the "development of new products," the beneficiary, working with the 
sales and R&D staff, "performs customer survey" and "determines [the specific] nature of the new 
product and which markets would be appropriate for the product." The beneficiary also spends 10% 
of his time on "advertising planning and assessment," 5% on "resolv[ing] media-related issues," and 
5% on "development of new market," where the beneficiary "collects data about potential markets" 
and "analyzes the collected data to obtain forecasts about possibility of developing the particular 
market. " 
In addition, the job description for the company's president (whom the petitioner identifies as the 
beneficiary's direct supervisor in its response to the WE), while not incompatible with the 
description of the beneficiary's job submitted at the same time, again highlights the issue of whether 
the beneficiary's duties qualify as primarily managerial in nature. Among other things, the president 
is said to "direct the beneficiary to collect related data, prepare and report to him the draft of [the 
company's mid- and long-term plan]"; "direct the beneficiary to analyze relevant data for pricing and 
report to him"; "receive reports from the beneficiary about the development of new products" and 
"plans for advertisements and promotions"; and "to develop or expand market in North, Central and 
South America, direct the beneficiary to collect related data [and] prepare for a plan." Thus, the 
beneficiary's tasks as framed by the requirements of his immediate supervisor would appear to 
involve collecting and analyzing data and preparing reports. As such, the beneficiary would be 
performing tasks that do not fall directly under traditional managerial duties as defined in the statute. 
Again, 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 ofchurch Scientology Intn 'l., 19 I&N Dec. at 604. 
As discussed above, the record contains three different depictions of the beneficiary's functions that 
portray the beneficiary as engaging in a supervisory role in sales in one instance, involved primarily 
in marketing in another, and performing non-qualifying tasks in data collection and analysis in the 
third. Again, it is incumbent upon the petitioner to resolve any inconsistencies in. the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. at 591-92. Further, the inconsistent accounts of the beneficiary's job 
responsibilities fail to demonstrate conclusively that the beneficiary manages an essential function 
rather than performs the duties related to the function. Thus, the AAO cannot find based on the 
record that the beneficiary qualifies as a "function manager," as counsel claims. 
The record is also insufficient to support a conclusion that the beneficiary qualifies as a "personnel 
manager." Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. Contrary to the common understanding of the 
word "manager," the statute plainly states that 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)(A)(iv) of the Act; 8 C.F.R. $ 204.56)(2). If a 
beneficiary directly supervises other employees, the beneficiary must also have the authority to hire 
and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. $ 
204.56)(2). 
Based on the information provided in response to the WE, the beneficiary has under his supervision 
six employees - a manager and an assistant manager in Marketing and Planning; an assistant 
manager in Design and Management Information System; two assistants in Purchasing and Trading; 
and a manager, an assistant manager, and an assistant in Logistics. The petitioner did not provide 
job descriptions for each of the subordinate employee listed; rather, a list of job responsibilities was 
provided per group. Based on the information provided, it cannot be determined whether those 
employees bearing "manager" and "assistant manager" titles actually supervised or managed other 
employees, or if the job responsibilities were simply shared among the individuals in each group. 
An employee will not be considered to be a supervisor simply because of a job title, because he or 
she is arbitrarily placed on an organizational chart in a position superior to another employee, or 
even because he or she supervises daily work activities and assignments. Rather, the employee must 
be shown to possess some significant degree of control or authority over the employment of 
subordinates. See generally Browne v. Signal Mountain Nursery, L.P., 286 F. Supp. 2d. 904, 907 
(E.D. Tenn 2003) (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at * 16 (E.D. Tex. Jan. 1 1, 
2007)). 
The record also does not establish that any of the beneficiary's subordinate employees are 
"professionals." 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 101(a)(32) of the Act, 8 U.S.C. 5 1 101(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. 8 17 (Comm. 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. It is noted that the petitioner provided evidence that one of 
the beneficiary's subordinate employees, the manager in marketing and planning, holds a bachelor's 
degree in economics. On appeal, counsel added documentation showing that the assistant manager in 
marketing and planning also holds a bachelor's degree. However, 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. The petitioner has not provided 
evidence that the positions of assistant manager and manager in marketing and planning actually 
require a bachelor's degree.2 As noted above, the petitioner has not provided specific, individual 
position descriptions for these individuals. 
Accordingly, the petitioner has not adequately demonstrated that the beneficiary manages 
supervisory, managerial or professional employees, such that he could be considered a "personnel 
manager." 
The AAO notes counsel's assertion that the "Marketing and Planning subfunction clearly involve 
the professional occupation duty set of Market Research Analyst or Economist," which counsel 
claims is among those occupations described in the Department of Labor's O*NET as requiring a 
minimum of a bachelor's degree or equivalent. Counsel has not provided any evidence to 
demonstrate that the job responsibilities of those generic positions are in fact comparable to the 
actual duties of the beneficiary's subordinates . The employee's actual job duties themselves reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). Further, an employee will not be considered a manager 
simply because of his job title. 
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 25, 2007 letter, the etitioner indicated that the beneficiary served as International 
Marketing Manager of the petitioner's parent company located in Korea, "for 
more than one year immediately prior to entering the U.S. under E-2 status in 1999." Specifically, 
the petitioner stated the following with respect to that position: 
In 1998, [the beneficiary] was made Manager at International Marketing Department 
of the company. As Manager, [the beneficiary] established and implemented the 
company's sales goals and strategies. He was responsible for projects and day-to-day 
tasks that were strategic to the company's international marketing plan in accordance 
with established time lines, goals, and expectations of quality, integrity and service. 
[The beneficiary] also evaluated customer research, international market conditions, 
competitor data, and implemented marketing plan changes as needed, overseeing all 
international marketing advertising and promotional staff and activities. 
The petitioner indicated that the beneficiary had worked for the foreign entity since 1991, became a 
Production Plan Clerk in 1994, an Assistant Manager for the Export Team in 1995, and the 
"Coordinator at Nice Team" in 1997, prior to becoming the International Marketing Manager. 
In the RFE, the director requested the following evidence relating to the beneficiary's position 
abroad: 
A more detailed description of the duties performed by the beneficiary, including the 
day-to-day tasks involved in the completion of each duty and an estimate of the 
percentage of time the beneficiary dedicated to each duty. 
A detailed organizational chart showing the beneficiary's position abroad, including 
the names of all departments and teams and the names and detailed description of the 
job duties for the beneficiary's immediate supervisors and subordinate employees. 
For any claimed professional, the petitioner is asked to provide the name, profession, 
minimum educational requirements and field of studies, and documentation that the 
individual has met those requirements. 
In response to the RFE, the petitioner stated that in 1998, the beneficiary was made "Manager in 
Export Administration at the International Department" of the foreign entity and remained in that 
position until he transferred to the United States in 1999. The petitioner submitted a lengthy 
description of the beneficiary's duties in that position, along with the time allocated to each category 
duties. 
The petitioner submitted an organizational chart for the foreign entity "as of 1998 -1999," which 
shows the International Department as one of five departments under the direction of the president, 
who in turn served under the chairman and vice chairman of the company. The International 
Department, head by a director, is subdivided into three "centers" - Export, Business Development, 
and Import. The Export Center, headed by a general manager, is divided into a sales team and an 
administration team. At the top of the administration team is a senior manager, followed by the 
beneficiary with the title of "manager." On the chart, the "team" under the beneficiary included two 
assistant managers, two supervisors and two assistants. 
The petitioner also submitted job descriptions for the beneficiary's direct supervisor, the senior 
manager, and subordinates, which in this case were identified as two assistant managers, two 
"clerks," and two assistants. No evidence relating to the subordinate employee's educational 
background or the educational requirements of their positions was provided. 
In his decision, the director noted the names of the beneficiary's subordinates overseas and found 
that evidence was not "submitted to establish that the beneficiary supervises or manages other 
supervisory, professional or managerial employees." The director also found that "the record does 
not establish that a majority of the beneficiary's duties have been or will be primarily directing the 
management of the organization." The director concluded that "[blased on the evidence fwnished, it 
cannot be found that the beneficiary has been or will be employed primarily in a qualifying 
managerial or executive capacity. " 
On appeal, with respect to the beneficiary's qualifiing employment abroad, counsel stated only that 
"the detailed description of [the beneficiary's] job duties while he was a Manager at the overseas 
parent company, and the Organizational Chart for the foreign parent, also establish that that job was 
managerial. Whether or not the employees who reported to him were 'professional,' it is clear that he 
was in charge of managing employees who were themselves 'managerial' andlor 'supervisory."' 
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 
MO will look first to the petitioner's description of the job duties. See 8 C.F.R. § 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. 
First, the AAO notes that there appears to be significant differences between the characterization of 
the beneficiary's overseas position and duties in the petitioner's July 2007 letter and the description 
provided in response to the RFE. In the initial letter, the beneficiary's title overseas was stated 
alternatively as "International Marketing Manager" and "Manager at [sic] International Marketing 
Department." In describing the beneficiary's duties, the petitioner used phrases such as "established 
and implemented the company's sales goals and strategies" and "overseeing all international 
marketing, advertising and promotional staff and activities." Both the title and the characterization 
of the beneficiary's duties in this instance suggested that the beneficiary held a senior, possibly the 
lead, role, within the foreign entity's international marketing department. In contrast, the 
submissions in response to the RFE indicated that while the beneficiary did hold the title "manager," 
there are three levels of managerial personnel above him within the international marketing 
department, and in fact, the beneficiary appeared to be a supervisor of a non-managerial, non- 
professional team within the department (as will be discussed further below). It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
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. Id. 
Moreover, the description of the beneficiary's duties provided in response to the RFE suggests that 
the beneficiary did not "oversee" staff and activities as the petitioner initially stated. Rather, it 
appears the beneficiary spent a significant portion in his position abroad performing a number of 
research and data collection and analysis tasks that appear to be non-managerial in nature. For 
example, the beneficiary is said to have "perform[ed] comparison analysis of . . . export data, 
analyzeld] information about the competing companies and the export activities of the leading 
companies in the industries" from which he derived benchmark reports to be submitted to his 
supervisor and eventually to higher management for approval. The beneficiary also "conduct[ed] 
researches on work environment," "review[ed] and analyz[ed] process of the company's production, 
logistics, sales and R &D" and provided the results to the company's computer information systems 
staff for their program and systems development. The beneficiary apparently also "analyze[d] 
demands from customers and markets"; "perform[ed] researches on products that the company does 
not produce" but may want to develop; "perform[ed] analysis for export sales volumes for each 
country"; "perform[ed] analysis of the monthly sales amount and profits" and provided the results to 
the relevant teams; and "collect[ed] data about importing companies located in foreign countries," 
reviewed their import and distribution capabilities, and reported the results to his supervisor. These 
research and data collection and analysis tasks do not fall directly under traditional managerial duties 
as defined in the statute. While the petitioner did provide an allocation of time to the different 
categories of duties set forth in the beneficiary's job descriptions, the above tasks are found 
throughout the job description and, as such, it is not possible to deduce how much of the 
beneficiary's time those non-qualifying tasks consumed. 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. 
Counsel contends on appeal that the beneficiary qualified as a manager in his overseas position since 
"[wlhether or not the employees who reported to him were 'professional,' it is clear that he was in 
charge of managing employees who were themselves 'managerial' andlor 'supervisory'." Although 
the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See $ 10 1 (a)(44)(A)(ii) of the Act. 
Though requested by the director, the petitioner did not provide any information regarding the level 
of education of any of the beneficiary's overseas subordinates, or the educational requirements of 
any of their positions. Any failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). Alternatively, the lack of 
such evidence suggests that the petitioner is not claiming that any of those employees qualify as 
professionals. In any event, absent the requested information, the petitioner has not established that 
the positions occupied by any of the beneficiary's subordinate employees required at least a 
bachelor's degree, such that they could be classified as professionals. Nor has the petitioner shown 
that any of these employees could be classified as managers or supervisors. While two of the 
employees under the beneficiary bore the title of "assistant managers,"3 nothing in their job 
descriptions indicate that they in fact managed or supervised other employees. Thus, the petitioner 
has not shown that the beneficiary's subordinate employees are supervisory, professional, or 
managerial, as required by section 10 1 (a)(44)(A)(ii) of the Act. Nor has the petitioner demonstrated 
that the beneficiary has the authority to hire and fire those employees, or recommend those actions, 
and take other personnel actions, as required by the regulations. See 8 C.F.R. $ 204.50)(2). 
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. 
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 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 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. 
It is noted that the organizational chart indicates that two other employees on the beneficiary's 
team were listed as "supervisors," they were described as "clerks" in the job descriptions. Again, it 
is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. at 591. Further, there is no indication that their job duties entailed the supervision of 
any other employee.