dismissed EB-1C Case: Industrial Equipment Sales

(b)(6)
DATE: JUl 2 9 2013 OFFICE: TEXAS SERVICE CENTER 
INRE : Petitioner: 
Beneficiary : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Admini strative Appeal s Office (AAO) 
20 Massachusett s Ave. N.W., MS 2090 
Washin gton, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion 
to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 
days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See 
also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
1-l.lif:-
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page2 
DISCUSSION: The Director, Texas Service Center, ("the director") denied the preference visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The U.S. petitioner is a corporation organized in the State of Florida in April 1999. The petitioner 
states on the Form I-140, Immigrant Petition for Alien Worker, that its type of business is "sales of 
industrial equipment" and that it employs six personnel. The petitioner reported a gross annual 
income of $262,117 when the petition was filed. It seeks to employ the beneficiary as its general 
manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
On August 17, 2012, the director denied the petition determining that the petitioner failed to establish: 
(1) that the petitioner's foreign parent company employed the beneficiary in a managerial or 
executive capacity; and (2) that it will employ the beneficiary in a 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. On appeal, counsel asserts that the director's basis for denial of the 
petition was erroneous and contends that the evidence of record is sufficient to satisfy the petitioner's 
burden of proof. 
I. The Law 
To establish eligibility for the employment-based immigrant visa classification, the petitioner must 
meet the criteria outlined in section 203(b) of the Act. 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. 
A United States employer may file a petition on Form I-140 for classification of an alien under 
section 203(b)(1)(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 
(b)(6)
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performed by the alien. The language of the statute is specific in limiting this provision to only those 
executives and managers who have previously worked for a firm, corporation or other legal entity, or 
an affiliate or subsidiary of that entity, and who are coming to the United States to work for the same 
entity, or its affiliate or subsidiary. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 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. § 1101(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. 
(b)(6)
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II. The Issues on Appeal 
A. Managerial or Executive Capacity for the Foreign Entity 
The first issue in this matter is whether the petitioner submitted sufficient evidence to establish that 
the qualifying foreign entity employed the beneficiary in a managerial or executive capacity for at 
least one year in the three years prior to the time of the beneficiary's application for classification and 
admission into the United States. 
Facts and Procedural History 
In a letter appended to the petition, the petitioner noted that the beneficiary had 25 years of 
experience as a manager. The petitioner indicated that the beneficiary had filled the position of 
general manager for the foreign entity for several years and in 2011 filled the general manager 
position in the United States. The petitioner stated that in these positions, the beneficiary had 
performed the following duties: 
• Prepare and present the annually [sic] projection and global strategies of the 
company; 
• Analyze, develop and execute new alliances to increase the international business 
opportunities and profitability for the company; 
• Evaluate monthly reports in order [to] determine requirements for increasing 
profits; 
• Periodic review of financial statements and data related to the incomes and 
expenses in order to take financial decisions; · 
• Implement innovating techniques to ensure and improve the company goals; 
• Evaluate financial risk and business opportunities; 
• Monitor general operations executed in order to align procedures to the plan 
projects; 
• Execute strategic plan by implementing short and long-term goals that align with 
the scope of service, mission and values of the company; 
• Initiates action plans as necessary, as to employ new personnel, put into operation 
new regulations, arrange new investments, between others; 
• Direct, formulate and continuously update the company policies and procedures in 
favor of the financial improvement; 
• Direct and coordinate the mayor [sic] company activities including hire, supervise 
and evaluate the professional performance of the managers; 
• Design and apply the incentives and promotions plan of the employees and 
planning the training required; 
• Provide positive and constructive feedback to the personnel by coaching, 
mentoring, counseling or corrective guidance and action, as appropriate; 
• Ensure a safe work environment for employees by enforcing the execution of all 
safety programs and makes recommendations for changes as necessary. 
(b)(6)
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The record also included an organizational diagram for the foreign entity .1 The organizational 
diagram depicted the beneficiary in the position of president directly supervising a general manager, 
who in tum supervised an operations manager, an executive secretary, and an administrative 
manager. The organizational chart also identified four sales executives reporting to the operations 
manager, a driver reporting to the executive secretary, and a security person reporting to the 
administrative manager. The record included brief overviews of the duties of each of the identified 
positions. 
The petitioner also provided original and translated versions of the foreign entity's payroll for 2009, 
2010 and 2011. 2 The payroll documents show the beneficiary was paid by the foreign entity each 
month and worked each month in the 2009, 2010, and 2011 years. The record also included the 
foreign entity's monthly tax returns for 2010 and 2011, bank statements for 2010 and 2011, and 
sales/suppliers invoices. 
Upon review of the limited information in the record regarding the beneficiary's actual duties for the 
foreign entity , the director issued a request for evidence (RFE) instructing the petitioner to submit 
additional evidence establishing that the foreign entity employed the beneficiary in a managerial or 
executive capacity. 
In response, in a May 31, 2012 letter on the petitioner's letterhead, the president of the foreign entity 
and the beneficiary as president of the petitioner certified that the beneficiary had worked for the 
foreign entity in "the position of President for more tha[n] 10 years non interrupted since 1985 until 
2010." The letter-writers further informed that as president of the foreign entity, the beneficiary: 
Developed duties as assign [sic] task to subordinates, taking in consideration their capacities , 
assigning deadlines, specifying parameters and resources; establish control methods to 
evaluate the employee's performance; train and help to develop the subordinate staff; evaluate 
effectiveness of the staff ; execute support actions as select, train and rewards [sic] employees; 
be responsible for his duties and the staff duties for the board of directors and develop and 
implement the work methodology between others. 
The record also included a May 28, 2012 letter on the foreign entity's letterhead, signed by the 
general manager, stating that the beneficiary had performed the position of 
general manager for more than 20 years working full time. The letter-writer stated that the 
beneficiary had "the first managerial position of the company developing general duties as direct 
supervision of the Operation and Administrative Managers, both qualified personnel with 
professional degrees, as well, he gave direct instruction to the Executive secretary[, a] position 
occupied by a lady with an associate degree." The letter-writer also indicated that at the end of each 
year the beneficiary reported to the directors and analyzed the annual financial report, and developed 
and setup the company business plan in order to reach the annual company goals. The letter-writer 
1 The petitioner does not identify the date of the foreign entity's organizational diagram and whether the 
diagram depicts the current or past organizational structure. 
2 The translated version of the foreign entity's payroll identifies the beneficiary in the position of general 
manager and another individual in the position of president; the untranslated version identifies the beneficiary 
in the position of "presidente" and another individual in the position of "gerente general." 
(b)(6)
Page6 
concluded that the beneficiary (i) managed the entire organization, (ii) supervised and controlled the 
work of other professionals, and (iii) was directly responsible for hiring, firing or recommending that 
the employees work in the company as well as evaluating their performance according to company 
goals. 
The beneficiary also provided some examples of his specific daily duties while employed at the 
foreign entity as reported by the foreign entity's letter-writer. The beneficiary indicated that he 
provided instructions to the operations manager regarding the kind of vendors to contact in order to 
accomplish any special requirements for customers and that he was in charge of initial meetings of 
every process for special bids requested by customers. The beneficiary noted that he had a short 
conversation with the Operations Manager 
every day to check the status of every proposal and advise 
her or offer support to deal with managers of special vendors. The beneficiary explained that he met 
weekly with the administrative manager to review the accounts payable and receivable report and 
take any actions necessary on human resource problems as well as approving payments to be made. 
The beneficiary noted that every morning he reviewed the bank accounts and kept in direct 
communication with the account managers, stocks advisor and other important vendors and 
customers' contacts. The beneficiary stated that his daily contact with his managers and relevant 
managers of his vendors and customers was an important key to the success of closing major deals 
with big corporations. The beneficiary indicated he usually met biweekly with the external 
accountant and was directly involved in proposals presented to the government. 
The petitioner also provided printouts of electronic mail transmissions between the beneficiary and 
other entities, many of which were untranslated. 
Upon review, the director determined that the record was insufficient in establishing that the 
beneficiary was employed in a primarily managerial or executive capacity for the foreign entity for at 
least one year in the three years prior to the time of the beneficiary's application for classification and 
admission into the United States. 
On appeal, counsel re-submits the foreign entity's organizational chart and provides an overview of 
the employees' duties. The description of the duties of the foreign entity's president, the beneficiary's 
position on the foreign entity's organizational diagram, indicates the beneficiary was responsible for 
the following: 
• Be responsible for the company representation internationally- 20 percent; 
• Direct the assembly and directive shareholders meetings- 15 percent; 
• Approve decisions made by the General Manager - 23 percent; 
• Suggest to the 
directive members the actions to take in consideration in order to run the 
company - 25 percent; 
• Execute any other plan according with the statutes and rules of the company- 18 percent. 
Counsel also provides two powers of attorney appointing the beneficiary to represent two different 
companies before authorities in Venezuela. The powers of attorney are dated in 1999 and 2000. 
Counsel also submits the untranslated versions of the foreign entity's payroll records from 2006 
through 2009. The record on appeal also includes certificates of education for several of the foreign 
entity's employees. 
(b)(6)
Page 7 
Analysis 
The record in this matter does not include sufficient probative evidence that the beneficiary worked in 
a managerial or executive capacity for the foreign entity. 
In examining the executive or managerial capacity of the beneficiary, United States Citizenship and 
Immigration Services (USCIS) will look first to the description of the job duties. See 8 C.F.R. 
§ 204.5(j)(5). Published case law clearly supports the pivotal role of a clearly defined job description, 
as the actual 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), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. 
§ 204.5(j)(5). That being said, however, USCIS reviews the totality of the record, which includes not 
only the beneficiary's job description, but also takes into account the nature of the business, the 
employment and remuneration of employees, as well as the job descriptions of the beneficiary's 
subordinates, if any, and any other facts contributing to a complete understanding of a beneficiary's 
actual role within a given entity. 
Preliminarily, we observe that the petitioner sometimes refers to the beneficiary as the foreign entity's 
president and sometimes refers to the beneficiary as the foreign entity's general manager. The 
petitioner's own descriptions of duties for these two separate positions are different and the petitioner 
places the two positions on different levels within the foreign entity's hierarchy. Accordingly, the 
petitioner has presented an inconsistent explanation of the beneficiary's actual role for the foreign 
entity. Moreover, the petitioner indicates that the beneficiary worked for the foreign entity until 
2010; however, the foreign entity's payroll records show that the beneficiary continued to be paid for 
the same job (president) until at least the end of 2011 and the record reflects that the beneficiary has 
resided in the United States since December 2009. The petitioner does not explain why the foreign 
entity continued to pay the beneficiary 
in 2011 for full time work. 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). 
In this matter, the beneficiary's explanation of his duties for the foreign entity indicates he was in the 
position of general manager. The foreign entity's claimed current general manager described the 
beneficiary's duties as managing the organization, supervising and controlling the work of other 
professionals, and hiring, firing, and evaluating the foreign entity's employees. On appeal, the 
beneficiary's position for the foreign entity is described as being responsible for representing the 
company, directing shareholder meetings, approving decisions made by the general manager, 
suggesting actions to the directors, and executing plans according to the rules of the company. As the 
record does not include a consistent, probative description of the beneficiary's actual duties for the 
foreign entity for at least one year in the three years prior to the time of the beneficiary's application 
for classification and admission into the United States, the petitioner has not established this essential 
element. 
Moreover, the petitioner's initial broad list of generic duties for the beneficiary as the foreign entity's 
general manager did not describe specific duties the beneficiary performed while he was employed by 
the foreign entity. Vague references such as preparing global strategies, analyzing and developing 
(b)(6)
Page 8 
new alliances, reviewing financial statements and data, improving the company goals with 
implementing innovating techniques, evaluating financial risk and business opportunities and 
monitoring general operations do not convey an understanding of the beneficiary's actual role within 
the foreign entity's organization. Similarly, generic duties such as executing strategic plans, initiating 
actions plans, directing and updating company policies, and directing and coordinating the company 
activities are insufficiently detailed to establish that the beneficiary primarily performed in a 
managerial or executive capacity for the foreign entity. 
Turning to the beneficiary's explanation of his duties for the foreign entity, the beneficiary describes 
his duties as primarily supervising the operations manager and administrative manager. Although the 
foreign entity indicated that both the operations and administrative managers had professional 
degrees, it is not the qualifications of the individuals that establish a position as a professional 
position but rather their duties. In this matter, the description of duties for the operations and 
administrative managers is insufficient to establish that these individuals primarily performed 
professional duties. Moreover, the description of duties did not evidence that either of these 
individuals primarily performed managerial or supervisory duties, but rather performed the necessary 
operational tasks of the company. The beneficiary noted that he also petformed the operational tasks 
of reviewing bank accounts, communicating with account managers, important vendors, and 
important customers, and presenting proposals to the government. These duties, while significant to 
the success of the foreign entity, are not primarily managerial or executive duties. 
On appeal, counsel references the documentary evidence submitted and asserts that this evidence is 
sufficient to establish that the beneficiary worked for the foreign entity as its general manager. Upon 
review of the foreign entity's organizational chart and the overview of the staffs duties, we find the 
same inconsistencies regarding the beneficiary's actual role for the foreign entity prior to entering the 
United States. The submission of powers of attorney showing that the beneficiary was appointed to 
represent two different U.S. companies before authorities in Venezuela in 1999 and 2000 is irrelevant 
to establishing the beneficiary's role for the foreign entity in one of the three years prior to the time of 
the beneficiary's application for classification and admission into the United States. The payroll 
records establish that the beneficiary was employed by the foreign entity during the relevant time 
period but do not provide evidence that the beneficiary was employed in a primarily managerial or 
executive capacity. The certificates of education for several of the foreign entity's employees 
submitted on appeal likewise are insufficient to establish that the beneficiary primarily supervised 
professional, managerial, or supervisory employees. Again, it is the duties of the position that 
establish its nature, not the education of the individuals holding the position. 
As the record does not provide consistent, probative evidence of the beneficiary's actual job duties 
while working in Venezuela for the foreign entity, the record does not support a conclusion that the 
beneficiary performed duties in either a managerial or executive capacity in one of the three years 
preceding the time of the alien's application for classification and admission into the United States. 
For this reason, the petition may not be approved. 
B. Managerial or Executive Capacity for the Petitioner 
The next 'issue in this proceeding is whether the petitioner has established the beneficiary will 
perform duties in an executive or managerial capacity for the U.S. petitioner. 
(b)(6)
Page 9 
Facts and Procedural History 
In the petitioner's December 2, 2011 letter in support of the petition, the petitioner indicated that in 
February 2010 it decided to again begin operations again in Florida. The petitioner stated that it 
entered the market to facilitate the commerce of specific· products according to customers' needs from 
U.S. distributors to Latin American customers. As referenced above, the petitioner's letter in support 
of the petition referenced the beneficiary's duties for both the foreign entity and the petitioner. 
Although the petitioner also allocated the amount of time the beneficiary spent on each of the listed 
duties for the petitioner, as noted above, the initial description of duties was general. The description 
did not establish the nature of the actual duties the beneficiary would perform for the petitioner. The 
petitioner's organizational chart, also initially included in the record, depicted the beneficiary as its 
general manager directly supervising an operation executive and a sales manager. The operation 
manager, in turn, is depicted as supervising a store assistant. The sales manager is shown as 
supervising a marketing executive and a sales assistant. 
The petitioner provided overviews of the duties of the beneficiary's subordinate employees, including 
the operation executive and sales manager. The petitioner indicated that the operation executive 
spends the majority of her time: developing, maintaining and monitoring billings and receipts; 
maintaining the company's archival and administrative files; managing day-to-day processing of 
accounts receivable and payable; reconciling monthly activity and generating year-end reports, and 
fulfilling tax related requirements; overseeing monthly and quarterly assessments and forecasts of the 
organization's financial performance; and administering payroll and employee benefits and 
organizational insurance. The operations executive spent a limited amount of time preparing annual 
audits and liaising with outside vendors, and managing grantor contracts and reimbursement requests. 
The duties of the operations executive did not include supervisory duties. The sales manager's duties 
included listening to customer requirements and making presentations to make sales, maintaining and 
developing relationships with existing customers, meeting with potential customers, acting as a 
contact between a company and its existing and potential markets, and negotiating agreements, price, 
costs, delivery and specifications with buyers and managers. The sales manager's duties did not 
include any supervisory duties. The store assistant is described as being responsible primarily for 
opening the store and interacting with guests and team members. 
In response to the director's RFE, the petitioner provided a more specific description of the 
beneficiary's duties as its general manager. The petitioner stated: 
• [The beneficiary] manages the main connection between the foreign corporations and [the 
petitioner] in order to determine the best equipments [sic] required by customers in 
Venezuela and others [sic] Latin American countries. [20 percent of the work week] 
• From the city of Miami, [the beneficiary] is capable to handle a better communications 
[sic] with the suppliers and coordinate meetings in order to establish price agreements and 
times of shipping of all equipments [sic] required by foreign customers. [10 percent of the 
work week] 
• Also, from the city of Miami in Florida, [the beneficiary] supervises the correct procedure 
developed by his employees to ship the merchandise to Latin America, due to he counts 
[sic] with a variety of freight forward companies operating from Miami to Latin America 
(b)(6)
Page 10 
as well as shipments by air or by sea, according [to] the customers' urgency and the prices 
offered. [ 10 percent of the work week] 
• [The beneficiary] is in constant communication with the manager of the Venezuelan 
parent company because they are in charge to coordinate the reception of all equipments 
[sic] sent by [the petitioner]. [5 percent of the work week] 
• [The beneficiary] assists to meetings with major vendors two or three times a week. 
During these meetings, the vendors provide information about new equipments [sic] 
released in the market and offered competitive prices to the company, during these 
meetings [the beneficiary] also approves new purchases and payments to the vendors. [10 
percent of the work week] 
• [The beneficiary] also makes a daily marketing analysis in order to increase sales every 
year and share the ideas of the proposed goals to his subordinates. This daily work 
includes directing, handling, coordinating and motivating his employees to make 
additional efforts to reach the proposed goals for the end of the year. [5 percent of the 
work week] 
• [The beneficiary] is [r]esponsible for the overall performance of the corporation. Correct 
and implement the policies regarding the administration, commercialization, marketing, 
sales, finance, personnel, and training services. [15 percent of the work week] 
• [The beneficiary] meets frequently with subordinate executives to ensure that the 
commercial operations are implemented in accordance with these policies. Retain overall 
accountability even though may delegate several responsibilities including the authority to 
oversee subordinate executives who direct the activities of the department s of the 
corporation, its policies on a day-to-day basis. [10 percent of the work week] 
• [The beneficiary] reviews and approves to submit quarterly rep01ts to update the company 
on new or ongoing activities and issues. He also submits, in a timely manner, all 
requested corporate paperwork, due to he is responsible to ensure that the proper corporate 
status is maintained. [5 percent of the work week] 
• [The beneficiary] represents and speaks on behalf of the corporation to the public and 
other organizations. He also attends all corporate meetings and trainings. [5 percent of 
the work week] 
• [The beneficiary] is [r]esponsible and has the authority to hire and fire employees, and 
supervise and coordinate the employees' jobs through the departments. [5 percent of the 
work week] 
The petitioner also included a revised organizational chart. The chart depicted the beneficiary as 
general manager directly over an operation executive, an administrative manager, and a sales 
manager. The chart showed the operation executive over an assistant manager and the sales manager 
over a marketing executive and several sales assistants. The record further included the petitioner's 
Florida Department of Revenue Employer's Quarterly Reports (UCT-6) for the four quarters of 2011 . 
The UCT-6 for the fourth quarter of 2011, the quarter in which the petition was filed , showed the 
petitioner employed six individuals, including the beneficiary. The names on the fourth quarter 
UCT -6 corresponded to the names of the individuals in the positions of general manager, operation 
executive, assistant manager, sales manager , and a sales assistant. A sixth name on the UCT-6 did 
not correspond to any of the names listed on the petitioner's organizational chart. 
(b)(6)
Page 11 
Upon review of the limited evidence in the record, the director denied the petition, determining that 
the petitioner had not established that it will employ the beneficiary in primarily a managerial or 
executive capacity. 
On appeal, counsel for the petitioner asserts that the beneficiary is performing in both a managerial 
and executive capacity and has been since 2010. Counsel avers that as the beneficiary is responsible 
for the overall direction of the petitioner, the petition should be approved. Counsel contends that the 
director's observation that the petitioner has only six or seven employees reveals that the director 
overlooked the beneficiary's responsibility for directing the petitioner through independent 
contractors. Counsel, on appeal, references letters from and 
_3 Counsel also notes that the petitioner employs customs brokers and 
freight forwarding services which are under the beneficiary's direction, thus relieving him of 
performing these duties. The petitioner also provides a further breakdown of the beneficiary's duties 
on a daily basis. Counsel concludes that the director based his decision solely on the petitioner's size. 
Counsel also asserts that the beneficiary is performing an essential and controlling function with 
respect to a large and complex business enterprise which requires significant decision making and 
that the beneficiary has also been involved in formulating and executing the petitioner's policies. 
Finally, counsel observes that the beneficiary's L-1 visa classification was approved and that the 
beneficiary is working in a managerial or executive position with the same international organization. 
Analysis 
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.P.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. /d. 
In this matter, the petitioner does not clarify whether its claim is that the beneficiary's duties fall 
under both definitions of managerial and executive capacity as s~t out in section 101(a)(44)(A) of the 
Act and section 101(a)(44)(B) of the Act or just one of the definitions. Rather, the petitioner recites 
partial sections of the definition of manager and the definition of executive in support of its claim that 
the beneficiary is eligible for this visa classification. If, however, the petitioner is claiming that the 
beneficiary qualifies as both an executive and a manager, the petitioner must demonstrate that the 
beneficiary's responsibilities meet the requirements of each capacity. The petitioner may not claim to 
employ a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. On 
review, the petitioner's description of the beneficiary's duties fails to establish that the beneficiary will 
be engaged in primarily managerial or executive duties for the petitioner. 
The definitions of executive and managerial capacity 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 
3 Although the record on appeal includes an October 10, 2012 letter from indicating 
it has provided accounting services to the petitioner since 2009, the record does not include a letter from 
(b)(6)
Page 12 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). Counsel in this 
matter asserts that the beneficiary will perform both executive and managerial duties. 
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. § . 1101(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. 
In this matter, although the beneficiary is listed as head of the organization, the record does not 
include documentary evidence that the beneficiary has a subordinate level of managerial employees 
to direct. First, as the individual on the petitioner's revised organizational chart in the position of 
administrative manager was not employed by the petitioner when the petition was filed, this position 
is not considered a current subordinate employee. A 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'r 1971). Second, 
although the petitioner employed an operation executive and a sales manager when the petition was 
filed, the description of duties for these positions did not indicate that either of these individuals 
manages a particular department; rather the description of duties indicates generally that these 
individuals primarily perform the routine operational tasks of a bookkeeping/accounting clerk and of 
a salesperson. The generic descriptions of the duties of the sales manager and operations executive 
positions are insufficient to ascertain that the actual dail)' duties comprise primarily managerial tasks. 
Moreover, a review of the petitioner's initial generic description of the beneficiary's duties fails to 
demonstrate that the beneficiary's actual duties within the organization are primarily executive duties. 
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 
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The petitioner's more 
specific description of the beneficiary's duties in response to the director's RFE also fails to establish 
the beneficiary primarily performed executive duties. For example, it is the beneficiary who 
determines the best equipment required by customers, who communicates with suppliers and 
coordinates meetings, who interacts with a variety of freight forwarding companies, who handles 
logistics with the foreign entity, who meets with vendors and approves new purchases, and who 
performs a daily marketing analysis. These duties are operational tasks necessary to continue the sale 
and export of products and goods. Although the beneficiary may delegate several responsibilities to 
subordinates, the petitioner has not effectively described either the beneficiary's executive tasks or the 
delegation of specific tasks to demonstrate that the beneficiary focuses primarily on the goals and 
policies of the organization rather than the day-to-day operations of the enterprise. 
Upon review of the totality of the record, including the description of the beneficiary's duties, the 
duties of subordinate personnel employed when the · petition was filed, and the nature of the 
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petitioner's business, the petitioner has not provided probative evidence that the beneficiary primarily 
performs duties in an executive capacity. The record is simply deficient in this regard. 
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. § 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. 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. 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. Section 101(a)(44)(A)(iii) 
of the Act. 
The petitioner in this matter has not established that the beneficiary 
primarily performs the duties of a 
personnel manager. A review of the petitioner's description of the beneficiary's duties does not reveal 
that the beneficiary primarily supervises and controls the work of other supervisory, professional , or 
managerial employees. Again, the initial description of the beneficiary's duties is generic and could 
apply to any number of positions . The overly broad position description does not assist in a 
determination that the beneficiary primarily performs duties as a personnel manager. 
In addition, the petitioner provided evidence of five employees subordinate to the beneficiary's 
position when the petition was filed. The record did not establish that any of these individuals are 
managerial employees. Moreover, although the operation executive and sales manager are depicted 
as over other employees on the petitioner's organizational chart, the description of their duties did not 
demonstrate that either of these individuals primarily supervises other employees. Accordingly, the 
petitioner has not established that these two individuals are supervisory employees. Further, the 
description of duties for the operations executive shows she primarily performs the tasks of an 
accounting clerk or bookkeeper as well as other routine and non-professional operational tasks. 
These duties do not depict a professional position. Similarly, the sales manager performs the duties 
of a salesperson. The record did not establish that his duties require an advanced bachelor's degree 
and thus are not professional duties. A review of the remaining positions of sales assistant, assistant 
manager, and an unidentified position did not reveal that these positions are managerial, supervisory 
or professional. 
On appeal, counsel for the petitioner references the beneficiary's direction of outside contractors , 
including freight forwarders, a storage facility, and an accountant. Counsel avers that these 
contractors perform many of the operational tasks of the company thus relieving the beneficiary to 
perform primarily executive or managerial duties. However, the petitioner did not provide any 
supporting documentary evidence to substantiate its use of contractors. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Neither has adequate 
documentary evidence been submitted on appeal in support of counsel's assertion. 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 
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Page 14 
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 (B.JA 1980). Moreover, the petitioner did not 
identify specific tasks performed by these outside contractors. Accordingly, it cannot be determined 
that the outside contractors relieve the beneficiary from primarily pelforming operational tasks. 
The record in this matter shows that at most the beneficiary is acting as a first-line supervisor of 
non-professional, non-supervisory, and non-managerial employees. The petitioner has not 
established that the beneficiary will primarily perform the duties of a personnel 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. § 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 pelformed in managing the essential function, i.e. identify the 
function with specificity, articulate the essential nature of the function, and establish the propmtion 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" pelforms 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" pelform the enumerated managerial 
or executive duties); see also Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988)). 
In this matter, the petitioner did not articulate any specific function that the beneficiary will manage. 
It is not sufficient to state generally that a beneficiary will manage "functions" or that the overall 
management of the organization constitutes the management of a function; rather the petitioner must 
describe the function with specificity and identify who will perform the routine duties of the function. 
In this matter, the petitioner has not identified any employees who perform the everyday routine 
operational tasks, including the duties of a first-line supervisor, thus relieving the beneficiary to 
primarily perform managerial duties. The beneficiary's business acumen in performing the essential 
tasks to operate the business, while undoubtedly valuable to the company, is not synonymous with an 
individual managing an essential function(s). 
Counsel's claim that the director determined the petitioner had not established that the beneficiary 
will perform primarily in a managerial or executive capacity solely on the basis of the petitioner's size 
is in error. Although the director noted that the petitioner's size was a factor in his determination, the 
director also found that the petitioner had not sufficiently described the duties of the proffered 
position. We agree that a company's size alone, withou.t taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See§ 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for 
users 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 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. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
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Page 15 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). In addition, a company's small size 
does not obviate the need to establish that a beneficiary is not primarily pe1forming the duties of the 
organization. To establish such, the petitioner must fully and definitely describe the actual duties the 
beneficiary and his or her subordinates perform. Further, the petitioner must establish that the 
company currently has a reasonable need for the beneficiary to perform duties that are primarily in a 
managerial or executive capacity as those terms are defined in the statute. In this matter, the 
petitioner has failed to provide this essential evidence. 
Upon review of the totality of the record including the petitioner's organizational structure, the duties 
of the beneficiary's subordinate employees, the lack of other employees to relieve the beneficiary 
from performing operational duties, including the duties of a first-line supervisor of non-professional 
employees, and the nature of the petitioner's business, the petitioner has not established that the 
beneficiary's actual duties incorporate primarily executive or managerial functions. Accordingly, the 
petitioner has not established that it will employ the beneficiary in a qualifying managerial or 
executive capacity. 
III. Prior Approval 
The AAO acknowledges that USCIS previously approved an L-1A nonimmigrant petition filed on the 
beneficiary's behalf, a classification which also requires the petitioner to establish the beneficiary's 
duties comprise primarily managerial or executive tasks. It must be noted, however, that many I-140 
immigrant petitions are denied after USCIS approves prior nonimmigrant I-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 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, supra. 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. Cf §§ 204 and 214 of the 
Act, 8 U.S.C. §§ 1154 and 1184; see also§ 316 of the Act, 8 U.S.C. § 1427. Because USCIS spends 
less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, some 
nonimmigrant 
L-lA 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. § 214.2(l)(14)(i)(requiring no supporting documentation to file a petition to 
extend an L-lA petition's validity). 
Moreover, in making a determination of statutory eligibility, USCIS is limited to the information 
contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). In the present 
matter, the director reviewed the record of proceeding and concluded that the petitioner had not 
established the beneficiary had been or would be employed in a primarily managerial or executive 
position. In both the request for evidence and the final denial, the director articulated the objective 
statutory and regulatory requirements and applied them to the matter at hand. If the previous 
nonimmigrant petition was approved based on the same evidence as submitted in this matter, the 
previous approval would constitute gross error on the part of the director. Despite any number of 
previously approved petitions, USCIS does not have any authority to confer an immigration benefit 
when the petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the 
Act. 
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Page 16 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.