dismissed EB-1C Case: Heavy Machinery And Engineering

identifying ddb deleted 
prevent clearly U.IIW-~ 
invasion of personal fivW 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: - Office: CALIFORNIA SERVICE CENTER Date: '0 3 2007 
WAC 97 061 50270 
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. 8 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. 
, c Robert P. Wiemann, Chi 
1 Administrative ~~~eals'bffice 
DISCUSSION: The Director, California Service Center, initially approved the employment-based immigrant 
visa petition, and ultimately revoked the approval of the petition following the issuance of two notices of 
intent to revoke. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1153(b)(l)(C). The petitioner, a California corporation, states that it is engaged in heavy machinery and 
technologies research, development and engineering. The petitioner seeks to employ the beneficiary as its 
president. 
The director approved the employment-based immigrant petition on January 27, 1997. After interviewing the 
beneficiary in connection with his Form 1-485, Application to Register Permanent Resident Status of Adjust 
Status in 1998, and awaiting the results of an overseas investigation, the USCIS Los Angeles District Office 
returned the petition to the California Service Center for further review and action on October 10, 2003. On 
August 4, 2005, the director issued a Notice of Intent to Revoke approval of the petition on the grounds that 
the petitioner had not established: (1) that the beneficiary would be employed in a primarily managerial or 
executive capacity; or (2) that the U.S. petitioner and the beneficiary's previous foreign employer have a 
qualifying relationship. After reviewing the petitioner's timely response, the director issued a second Notice 
of Intent to Revoke on the same grounds on December 23,2005. 
After reviewing the petitioner's response to the second Notice of Intent to Revoke, the director revoked the 
approval of the petition on November 03, 2006. The director concluded that the petitioner had failed to 
establish that the beneficiary would be employed in the United States in a primarily managerial or executive 
capacity. The director noted that the petitioner's description of the beneficiary's duties included a combination 
of vague, non-specific responsibilities and tasks which do not fall under the statutory definitions of 
managerial or executive capacity. The director also acknowledged the petitioner's claimed organizational 
structure as of the date of filing, and concluded that the beneficiary would not be relieved from performing 
routine operational activities associated with the business. 
On appeal, counsel for the petitioner asserts that the director placed undue emphasis on the size of the 
petitioning company, and asserts that the small size of the company does not preclude the beneficiary from 
qualifying as a function manager. Counsel further asserts that the petitioner submitted evidence that the 
beneficiary supervises professional employees. Counsel submits a brief in support of the appeal. 
Section 203(b) of the Act states, in pertinent part: 
(I) 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 
Page 3 
States under this subparagraph, has been employed for at least 1 year by a 
firm or corporation or other legal entity or an affiliate or subsidiary thereof 
and who seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Following approval of an immigrant or nonimmigrant petition, the director may revoke approval of the 
petition in accordance with the statute and regulations. Section 205 of the Act, 8 U.S.C. $ 1155 (2005), 
states: "The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petition approved by him under section 1154 of this title. Such revocation 
shall be effective as of the date of approval of any such petition." 
Regarding "good and sufficient cause" and the revocation of an immigrant petition under section 205 of the 
Act, the Board of Immigration Appeals (BIA) has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). 
By itself, the director's realization that a petition was incorrectly approved is good and sufficient cause for the 
issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 I&N Dec. at 590. 
As a preliminary point, the AAO stresses that, in this proceeding, the petitioner must establish that the 
petitioner and beneficiary were eligible for the benefit sought at the time the instant petition was filed on 
December 27, 1996. 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 (Cornm. 1971). 
The evidence in the record of proceeding dates from 1995 through 2006. Federal regulations affirmatively 
require an alien to establish eligibility for an immigrant visa at the time an application for adjustment of status 
is filed or when the visa is issued by a United States consulate. 8 C.F.R. fj 245.1(a), 22 C.F.R. fj 42.41. The 
petitioner bears the ultimate burden of establishing eligibility for the benefit sought, and that burden is not 
discharged until the immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 
1305 (9th Cir. 1984). 
The petition approval in this matter was ultimately revoked due to the director's realization that the petition 
was erroneously approved in January 1997, rather than based on a conclusion that the beneficiary and 
petitioner became ineligible for the benefit sought subsequent to the approval of the petition. Accordingly, the 
AAO will confine its analysis of the evidence to documentation that is contemporaneous with the 
beneficiary's priority date of December 27, 1996. 
The sole issue addressed in the revocation decision is whether the petitioner established that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. fj 1 10 1 (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 withn the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are 
directly supervised; if no other employee is directly supervised, functions at a senior 
level withn 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. fj 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 organizabon, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-malung; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The immigrant visa petition was filed on December 27, 1996. The petitioner stated on Form 1-140 that the 
beneficiary would serve as president of the two-person U.S. company. In a letter dated November 6, 1996, 
the petitioner described the beneficiary's duties as follows: 
His job description is to direct and participate in the management of global marketing, import 
and export of machinery per customers' specs and requirement, establish the goals, plans and 
policies of the department, set up company regulations and strateges in the competitive 
markets, exercise important decision making relating to all fields of the department, 
coordinate the work among the different groups of the department, in charge of the 
recruitment of staff of which he has the rights to hire and fire, only receive general 
supervision from the chairman of the board. 
In a separate, undated letter, also submitted in support of the initial petition, the petitioner provided the 
following explanation regarding the beneficiary's duties: 
[The beneficiary] . . . oversee[s] our international development with the international units. 
[The beneficiary] managed and delegated responsibility to different managerial executives. 
Each of the management level in turn have technology and/or engineering personnel 
reporting to them. In addition, the group managers and all staffs from our U.S. units report to 
[the beneficiary]. 
In addition, [the beneficiary] has authority to recruit, hire, train, promotion [sic], terminate his 
staff. He also formulated and executed business policies pertaining to product planning and 
standards applied in technical support and service which consist with head office requirement 
for international operations. 
His managerial duties include the complete management of the district, including control of 
supervisory and professional personnel. 
In addition, this position will be responsible for a wide range of executive and managerial 
functions. [The beneficiaw will be responsible for managing and directing all development 
activities of international subsidiaries. This includes communicating the technological and 
development direction of headquarter to our international offices on a regular basis. [The 
beneficiary] will routinely meets [sic] with various technical specialist [sic] from the 
international units and with managers to ensure our corporate philosophy is understood and is 
being delivered accurately. [The beneficiary] will represent the unique concerns and 
requirements of the international operations to headquarters and provide significant 
contributions to the formulation of strategic product plans to ensure that the business and 
strategic policies are effectively incorporated into our international business activities. 
In the area of human resources management, [the beneficiary] will exercise authority in 
regard to employment, termination, training, delegation of assignments according to 
capabilities, preferences and technical goals, discipline, promotions and remuneration. He 
will conduct performance reviews and ensure that his staff follow corporate procedures. [The 
beneficiary] will exercise wide latitude in discretionary decision-making and receives only 
general guidelines fiom the Chairman of the board. 
The petitioner submitted a copy of its California Form DE-6, Quarterly Wage and Withholding Report, for the 
third quarter of 2006, which confirms the U.S. company's employment of the beneficiary and one other 
employee. 
On the basis of this information, the director approved the immigrant petition on January 27, 1997. 
On August 4, 2005, the director issued a notice of intent to revoke approval of the petition. The director 
advised the petitioner that the record at the time of filing contained insufficient evidence to demonstrate that 
the beneficiary would be employed in a managerial or executive capacity. The director noted that there was 
no evidence that the beneficiary would function at a senior level in an organizational hierarchy, or that he 
supervised managerial, professional or supervisory personnel. Rather, the director observed that the 
beneficiary appeared to be acting as a first-line supervisor of one employee who had not been shown to be a 
professional, as the petitioner had not provided the job title, job duties or position requirements for the 
beneficiary's subordinate. 
In a response letter dated August 30, 2005, the petitioner provided the following description of the 
beneficiary's duties: 
[The beneficiary] has been in charge of setting the company's performance objectives and 
establishing the policies for meeting those performance objectives. He is in charge of 
evaluating and developing the company's overall marketing strategy, based on his knowledge 
of US market characteristics, and cost and markup factors, and decides our pricing strategies, 
balancing the company's objectives and need for customer satisfaction. He also uses sales 
forecasting and strategic planning to ensure the sale and profitability of our products, by 
analyzing business developments and monitoring market trends. He has the authority to enter 
into contracts on behalf of [the petitioner] and to establish the company's budget and 
budgetary control systems. 
[The beneficiary] has wide discretion in making these strategic decisions and performs these 
functions with only limited general oversight by the chairman of the Board and the 
management of [the foreign entity]. 
The petitioner further stated that the beneficiary "has made a large number of important strategic decisions 
which have significantly impacted the company's current direction." The petitioner stated that 
oversees two sales engineers (who is also identified as Vice President - Sales) and 
who are responsible for selling OEM components for use in agricultural machinery manufactured in the 
United States, and who are required to possess a bachelor's degree in a technical field. 
In a letter dated August 31, 2005, counsel for the petitioner asserted that the beneficiary is clearly employed 
in an executive capacity based on his responsibility for directing the management of the petitioning company, 
"a major marketing component of the parent company." Counsel stated that the beneficiary "is establishing 
the goals and policies of the US company by setting performance objectives and establishing the policies for 
meeting those objectives," and that he "clearly exercises wide latitude in discretionary decision making." 
Counsel further contended that the beneficiary meets the criteria of a functional manager, noting that he 
"clearly manages an essential function with the organization, since he sets the company's performance 
objectives and establishes the policies for meeting those performance objectives," and "sets the company's 
overall strategy for marketing its products." Counsel further emphasized that the two sales engineers 
managed by the beneficiary are professional level employees. 
The director issued a second Notice of Intent to Revoke on December 23,2005, requesting specific evidence 
in support of the claim that the beneficiary would be employed in a managerial or executive capacity as of 
December 27, 1996 when the immigrant petition was filed. The director instructed the petitioner to submit: 
(1) a more detailed description of the beneficiary's duties in the United States, including a "typical day" 
description for the beneficiary; (2) a copy of the U.S. company's organizational chart depicting its managerial 
hierarchy and staffing levels as of the date of filing the petition; (3) job titles and a brief description of job 
duties and educational qualifications for all employees under the beneficiary's supervision; and (4) copies of 
California Forms DE-6, Quarterly Wages and Withholding Reports, for the last two quarters of 1996 and for 
each quarter of the years 1997 through 2005, submitted in a sealed envelope from the California Employment 
Development Department. 
The petitioner submitted a partial response dated January 19, 2006 and requested additional time to submit 
sealed copies of its Forms DE-6, which were subsequently provided in May 2006. The response included a 
letter from the beneficiary, also dated January 19, 2006, in which he provided the following description of his 
duties as president: 
I am in charge of setting the company's strategic sales goals and overall marketing strategy 
and overseeing the work of our sales engineers in order to implement this strategy. In order to 
do this, I need to make sure that I am constantly receiving the latest and best information 
regarding developments and trends that will affect the market for machine tools and high 
voltage electrical components as well as the price and availability of the raw materials and 
critical components needed to produce these items. 
One example of the kind of information that is necessary to do my job is the metal market. 
The price of almost everything we deal in, including machine tools and high voltage electrical 
components, is highly sensitive to changes in the price of the various metals that are used in 
their production. We are in a highly competitive business in which small price deviations can 
spell the difference between profitable sales and financial disaster. For this reason, I am 
constantly studying trends in the metals market, by reviewing prices and price trends on the 
London Metal Exchange as well as the Wall Street futures market. 
I also need to be constantly aware of business developments and market conditions affecting 
our customers so that I can develop strategies to meet their evolving needs and direct our 
sales engineers in meeting those needs. This requires attention to market conditions and 
technical developments, as well as face to face meetings with representative of our customers 
to inquire about their business developments. 
A typical day for me combines research and analyses of the information needed to do my job 
with time spent overseeing he work of our sales engineers and developing and articulating 
strategies that take advantage. Because routine administrative tasks are not a major part of my 
job, no two days are exactly alike. Nonetheless, here is one description of a fairly typical 
work day for me: 
At 9:00 am, I arrived at my office, sit down at my computer and review my faxes and email. I 
have received several emails from executives in our parent company in China regarding their 
future production goals and I have to review them and see how this affects our current 
marketing strategy. I then log onto the internet to check on the latest prices on the London 
metals market. I then review a number of reports fiom our sales engineers. 
I then drove to the Burbank Airport Hilton for a meeting with the International Sales Manager 
of Cooper Power systems.' The Sales Manager explained that they are considering the 
possibility of setting up a new warehouse in Shanghai, China in order to do business more 
directly with Chinese customers. We discussed a number of issues that would arise through 
this move, including ordering, shipment and payment systems and technical issues arising 
from the move, both in China and the U.S. We continued our discussion over a late lunch. 
I then returned to my office where I informed our sales engineers of the possible development 
and discussed the potential ramifications for our high voltage parts business. After our 
discussion, I did further research on market conditions and began work on a report on the 
meeting and other recent developments for our parent company. 
The petitioner also submitted an organizational chart stated to depict the U.S. company's structure as of the 
date the petition was filed. The chart shows that the beneficiary supervised: (1) a vice presidentlsales 
manager, who plans, manages and sells agricultural supplies and machine tools, provides feedback to the 
beneficiary, and assists the beneficiary with quality and quantity of work performed; (2) a sales manager, who 
sells agricultural supplies and machine tools and "purchases merchandises from factory"; and (3) a "Ningbo 
Representative Officer," who is responsible for the sale of "Ningbo merchandises" and for contacting Ningbo 
factories. The petitioner indicated that the vice presidentlsales manager is on salary, the sales manager 
receives both salary and commission, and the Ningbo representative officer is paid by commission. 
1 
 The record contains an international distributor agreement signed between 
the petitioner, dated September 16, 1998, which appoints the U.S. compa 
products in the Zhejiang province of China. 
The petitioner also submitted copies of its California Forms DE-6 for 1996, which show that the sales 
manager received a monthly salary of $800 for the first four months of the year only and was no longer 
employed at the time the petition was filed. The record contains no evidence of commission payments to the 
sales manager or the Ningbo representative office. The petitioner's 1996 IRS Form 1120, U.S. Corporation 
Income Tax Return, has not been provided for the record. It is noted that the petitioner's 1997 Form 1120 
indicates commission payments of only $1,096. 
The director revoked the approval of the petition on November 3,2006, concluding that the petitioner had not 
established that the beneficiary would be employed in a managerial or executive capacity. The petitioner 
acknowledged the petitioner's description of the beneficiary's "typical day" and concluded that the duties 
performed are not typically managerial or executive as defined by the statute. The director found the duties 
were more indicative of a sales person or marketing employee. The director further observed a discrepancy 
between the petitioner's organizational chart and payroll records, concluding that the petitioner had not 
provided evidence of an organizational structure sufficient to elevate the beneficiary to a position that is 
higher than a first-line supervisor of non-professional employees. 
The director determined that the beneficiary would reasonably be required to assist with the day-to-day 
operational tasks of the petitioner's business. The director also found insufficient evidence to establish that 
the beneficiary would be employed as a function manager. 
On appeal, counsel for the petitioner asserts that USCIS abused its discretion by revoking the approval of the 
petition without good cause. Counsel contends that the director erroneously based his determination on the 
size of the petitioning entity and the number of employees supervised by the beneficiary. Counsel asserts that 
the small size of the company does not preclude the beneficiary from qualifying as a functional manager. 
Counsel references specific U.S.-manufactured systems and equipment that have been sold and exported to 
China by the petitioning company, and states that the beneficiary trained and managed "a professional team of 
supervisors, sales and engineers," to research and develop the equipment for the customer. Counsel further 
states that the beneficiary supervises the work of two sales engineers who are responsible for selling OEM 
components to manufacturers, and asserts that the employees should be considered professionals based on the 
U.S. Department of Labor's Occupational Information Network ("O*NetM) classification system. Counsel 
asserts that the beneficiary is "running a multiple million business with a team of professionals in very 
sophisticated fields." Counsel concludes that USCIS should not judge the petitioning company based on how 
many people it has hired, but must also consider the nature of the business. Counsel cites several unpublished 
decisions in support of these assertions. 
Upon review of the record, the petitioner has not established that the beneficiary would be employed in a 
primarily managerial or executive capacity as of the date the petition was filed. 
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(j)(5). Here, although specifically addressed by 
the director in the notice of revocation, the petitioner has declined to clarify the specific managerial or 
executive job duties to be performed by the beneficiary as president of the U.S. company as of December 
1996 when the petition was filed. 
The regulation at 8 C.F.R. tj 204.5(j)(5) requires the petitioner to submit a clear description of the job duties 
to be performed by the beneficiary in the petitioning entity. At the time of filing, the petitioner indicated in its 
letter dated November 6, 1996 that the beneficiary's duties would include "direct . . . the management of 
global marketing," "establish the goals, plans and policies of the department," "set up company regulations 
and strategies," "exercise important decision making relating to all fields of the department," "coordinate the 
work among the different groups of the department," and "receive general supervision from the chairman of 
the board." These statements merely paraphrase the statutory definition of executive capacity. See section 
10 1 (a)(44)(B) of the Act, 8 U.S.C. tj 1 10 1 (a)(44)(B) of the Act. Conclusory assertions regarding the 
beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1 108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 
188942 at "5 (S.D.N.Y.). 
Furthermore, it is unclear how the beneficiary coordinated activities between and developed strategies for 
"departments," and "different groups within the department, " given that the petitioner employed only a 
president and a vice presidentlsales manager as of the date of filing and does not appear to have been 
organized into departments or other sub-divisions. The position description provided little understanding as 
to what actual duties the beneficiary performed within the context of the petitioner's business. The petitioner 
also stated that the beneficiary's duties include "import and export of machinery per customers' 
[specifications] and requirement[s]," but did not indicate whether the beneficiary was directly responsible for 
import and export-related activities, or whether he managed these duties through a subordinate employee. 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), afjd, 905 F.2d 41 (2d. Cir. 1990). 
The AAO acknowledges that the petitioner's initial submission included a second letter from the petitioner 
with a description of the beneficiary's duties. Although both letters were signed by the same company 
representative, the two letters contain dissimilar position descriptions. The second letter states that the 
beneficiary, as president of the petitioning company, would have executive responsibility for "all 
development activities of international subsidiaries," would delegate responsibility to "different managerial 
executives" who in turn supervise technology and engineering personnel, and would have authority over "the 
group managers and all staffs from our U.S. units." Thus, this description implied that the beneficiary would 
be overseeing more than one U.S. subsidiary, and in fact, all of the foreign entity's international subsidiaries, 
while the concurrently submitted description represented the beneficiary as the manager in charge of a two- 
person import-export company. 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, 59 1-92 (BIA 1988). The AAO notes that subsequent position descriptions submitted 
by the petitioner make no reference to the beneficiary's responsibility for overseeing "international 
subsidiaries" or managing subordinate "group managers." 
Based on the petitioner's submission of two vague and inconsistent position descriptions with the initial 
petition, the AAO concurs that the approval of the petition was in error, contrary to the regulations, which 
require the petitioner to clearly describe the position offered to the beneficiary. See 8 C.F.R. tj 204.5(j)(5). 
The director had sufficient grounds for issuing the notice of intent to revoke the approval of the petition. 
Page 1 I 
The director subsequently provided the petitioner with two opportunities to clarify the nature of the 
beneficiary's duties. However, the petitioner's responses to the director's notices did little to shed light on the 
nature and scope of the beneficiary's duties as of the date the petition was filed. For example, in its letter 
dated August 30, 2005, the petitioner stated that the beneficiary is "in charge of setting the company's 
performance objectives and establishing the policies for meeting those performance objectives," "in charge of 
evaluating and developing the company's overall marketing strategy," "has wide latitude in making these 
strategic decisions," and "performs these functions with only limited general oversight by the chairman of the 
Board." 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 
failed to provide any detail or explanation of the beneficiary's activities in the course of his daily routine. 
Again, the actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Suva, 724 F. Supp. at 1108. 
The petitioner also indicated that the beneficiary analyzes business developments, monitors market trends, 
''uses sales forecasting" . . . "to ensure the sale and profitability of our products," and "has the authority to 
enter into contracts." However, the petitioner did not clearly indicate who on the petitioner's staff researches 
and analyzes market trends and business prospects or prepares sales forecasts, or discuss the nature and scope 
of the contracts entered by the beneficiary. 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 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). The petitioner's response to the first Notice of Intent to Revoke was insufficient to establish that the 
beneficiary would be relieved from performing non-qualifying sales and marketing tasks. 
Finally, although the petitioner eventually provided a description of the beneficiary's "typical day," as noted 
by the director, several of the duties described did not fall within the traditional statutory definitions of 
managerial or executive capacity. For example, the beneficiary stated that he is "constantly studying trends in 
the metals market by reviewing prices and price trends," pays "constant attention to market conditions and 
technical developments" affecting the petitioner's customers, and meets with customers to inquire about their 
business developments. Based on these representations, the beneficiary devotes a significant portion of his 
time to non-managerial research and analysis tasks, rather than delegating these functions to lower-level 
personnel. 
While the AAO does not doubt that the beneficiary exercises discretion over the U.S. company as its 
president and as the senior member of its two-person staff at the time of filing, the definitions of executive 
and managerial capacity have two specific requirements. 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). Based on the current record, the AAO is unable to determine whether the claimed 
managerial and executive duties constitute the majority of the beneficiary's duties, or whether the beneficiary 
primarily performs non-managerial administrative or operational duties. The petitioner's description of the 
beneficiary's job duties does not establish what proportion of the beneficiary's duties is managerial or 
executive in nature, and what proportion is actually non-managerial or non-executive. See Republic of 
Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Furthermore, the petitioner's description of the beneficiary's duties cannot be read or considered in the 
abstract, rather, the AAO must determine based on a totality of the record whether the description of the 
beneficiary's duties represents a credible perspective of the beneficiary's role within the organizational 
hierarchy. The petitioner has repeatedly claimed that the beneficiary supervises two "sales engineers," 
although the record also contains an organizational chart indicating that at the time of filing, the company 
employed a vice presidentlsales manager, a sales manager and a "Ningbo representative officer." 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. The 
documentary evidence submitted confirms that the petitioner's staff as of the date of filing included the 
beneficiary and who is referred to as the vice presidentlsales manager, and said to be acting as a 
"sales engineer." Such evidence is consistent with petitioner's initial statements that the company had two 
employees at the time the petition was filed. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section lOl(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 8 1 101 (a)(44)(A)(i) and (ii). 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." 
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. 8 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. 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 a 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 clearly described the duties performed by the 
beneficiary's subordinate employee at the time of filing. Counsel's indication that the duties are comparable 
to those of a "sales engineer" as described in the U.S. Department of Labor's O*Net occupational 
classification scheme is not persuasive and cannot be accepted in lieu of a detailed description of the duties 
performed by this employee as of December 1996. Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Moreover, even if the petitioner had established that the beneficiary's sole subordinate employee at the time of 
filing was employed in a professional capacity, the record as a whole does not establish that supervision of 
this employee was the beneficiary's primary duty. 
Counsel correctly observes that a company's size alone, without talung into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 5 10 1 (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C). However, 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 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). The AAO acknowledges that in certain 
situations, even a beneficiary who is the sole employee of a company may qualify as a manager or executive. 
However, it is the petitioner's obligation to establish through independent documentary evidence that the day- 
to-day non-managerial and non-executive tasks of the petitioning entity are performed by someone other than 
the beneficiary. 
At the time of filing, the petitioner was a two-year old machinery import and export trading company, with 
sales of approximately $1 38,000 in 1995 and $397,000 in 1997. As such, the petitioner reasonably requires 
employees to research the targeted import and export markets and industry trends, to market the petitioner's 
products to current and potential U.S. and foreign customers, to interact with customers to determine 
requirements and to take orders, to interact with manufacturers to ensure timely fulfillment of orders, to 
arrange for import and export of the goods being traded between the U.S. and China, to provide customer 
service, and to perform the routine financial, administrative and clerical duties associated with operating an 
import/export business. In December 1996, the petitioner employed the beneficiary as president, and one 
vice presidenthales manager whose duties, though only briefly described, appear to be limited to interactions 
with U.S. customers seeking to import equipment from China. 
Accordingly, the petitioner has not established that the beneficiary had subordinate employees to relieve him 
from performing the majority of the non-qualifying tasks associated with operating the petitioner's business at 
the time the petition was filed, including market research, sales and marketing of exports to the Chinese 
markets, making import and export arrangements, and administrative duties. Therefore, the director's 
conclusion that the beneficiary was required to perform a number of these non-managerial duties at the time 
the petition was filed was not based on unfounded speculation, as suggested by counsel. It would be 
unreasonable to reach any other conclusion based on the evidence presented, and neither the petitioner nor 
counsel has submitted any new evidence in this proceeding that would overcome this conclusion. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101 (a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int 'l., 19 I&N Dec. 593, 604 (Comm. 1988). The fact that the beneficiary 
manages a business, regardless of its size, does not necessarily establish eligibility for classification as an 
intracompany transferee in a managerial or executive capacity within the meaning of sections 10 1 (a)( 15)(L) 
of the Act. See 52 Fed. Reg. 5738,5739 (Feb. 26,1987). 
On appeal, counsel correctly asserts that "the small size of the company does not preclude the beneficiary's 
position qualifies [sic] as a 'functional 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)(ii) of the Act, 8 
U.S.C. 5 1101(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. fj 204.56)(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 l(a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Int 'l., 19 I&N Dec. 593,604 (Cornm. 1988). 
In this case, counsel suggests that the beneficiary may be considered a function manager because he "sets the 
company's performance objectives" and "sets the company's overall strategy for marketing its products." 
Counsel provides no clear basis for this claim, and no indication as to what proportion of the beneficiary's 
time is devoted to managing these claimed "functions" of the petitioning organization. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). Furthermore, as discussed above, the record does not establish that the beneficiary 
performed primarily managerial or executive duties as of the date of filing. Counsel's only support for his 
assertion that the beneficiary would be employed as a function manager is an unpublished AAO decision. 
Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to those in 
the unpublished decision. While 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on 
all CIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
Based on the foregoing discussion, the AAO finds that the director's notice of revocation was properly issued 
for "good and sufficient cause," and that the revocation of the petition approval was warranted. See Matter of 
Ho, 19 I&N Dec. at 590. Accordingly, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.