dismissed EB-1C Case: Leather Goods

identifying da~ deleted to 
prevent clearly unw ~rmt~d 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: - Office: VERMONT SERVICE CENTER f EB 2 1 20~7 
EAC 04 053 52220 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
'- 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant visa 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. 
$j 11 53(b)(l)(C). The petitioner is a corporation organized under the laws of the State of New York that is 
engaged in the import and sale of leather goods. The petitioner seeks to employ the beneficiary as its 
president. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, the petitioner's present counsel contends that the director's denial was based on a misinterpretation 
of the petitioner's employee records and financial documents, in which he improperly questioned the veracity 
of the offered documentary evidence. Counsel submits a brief and additional documentary evidence in 
support of the appeal. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. - An alien is 
described in this subparagraph if the alien, in the 3 years preceding the time 
of the alien's application for classification and admission into the United 
States under this subparagraph, has been employed for at least 1 year by a 
firm or corporation or other legal entity or an affiliate or subsidiary thereof 
and who seeks to -enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives 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. 
The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Page 3 
Section 1 0 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 1 0 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 within 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 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. § 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 Establishes the goals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-making; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the Form 1-140 on December 12, 2003, noting the beneficiary's position as president over 
the ten-person United States company. In an appended December 11, 2003 letter, the petitioner's prior 
counsel stated that the beneficiary would be "the top executive in charge of business operations in the United 
States," during which he would "make the day[-]to[-]day decisions for the company," establish a subordinate 
staff to sell the petitioner's products, and "re-evaluat[e] current daily business operations procedure." Counsel 
noted that the beneficiary's initial principal responsibilities included locating additional office and warehouse 
space and implementing a subordinate workforce comprised of sales and distribution managers and 
administrative personnel. 
Page 4 
Counsel submitted a copy of a December 5, 2003 letter, in which the petitioner compared the beneficiary's 
position in the United States company to that occupied by the beneficiary in the foreign entity, explaining that 
the beneficiary maintains "full oversight and control" over the company's departments, and holds the authority 
to delegate tasks, and hire and fire employees. With respect to the beneficiary's proposed employment, the 
petitioner stated: 
It is anticipated that within the first year of [the beneficiary's] full-time oversight of the US 
business operations [the beneficiary] shall purchase a warehouse of 50,000 square feet and 
will hire [an] additional sales manager and add to the staff of sales employees to sell and 
market the leather foods and finished products of the parent company directly to additional 
US and Canadian vendors. In New York[,] [the beneficiary] will also have the sole 
discretion to hire and fire all staff in the United States to distribute the products from 
Mainland China. . . . Upon his arrival, [the beneficiary] will not be handling the actual 
sales and distribution and shipping of the products, but will oversee the business expansion, 
daily operations and its expansion goals. 
 At all times in the United States[,] [the 
beneficiary] will act as the top executive and [plresident of [the petitioning entity] and all 
company employees will answer to him for guidance and for company procedures and 
business plan formulations. 
Further, as necessary as the operations in the United States increase[,] [the beneficiary] will 
hire the services of affiliated company independent professionals such as accountants, [and] 
public relations specialists to assist the company in its product sales ventures. After his 
arrival in the United States to lawfully work, all managers and contractors will be required 
to meet and work with [the beneficiary] on a regular basis to assure that business is being 
conducted in the best possible and efficient manner. As [president] of [the petitioning 
entity,] [the beneficiary] will be responsible for daily administration and oversight of the 
investment and distribution and sales operations in the United States, including the final 
decision on advertising, investments, promotions and product-line offerings of the United 
States company. . . . 
In a second letter, also dated December 5, 2003, the petitioner outlined the following job duties to be 
performed by the beneficiary in his capacity as general manager and president: 
Set the policies and procedures of the company for the present and future as determined 
by himself as the [gleneral [m]anager/[p]resident and as a member of the parent 
company['s] [bloard of [dlirectory [sic]. Will include decisions to increaseldecrease 
company employees and implementing the corporation's operating goals and policies, 
including desired expansion of importing of goods intolout-of the US in accordance 
with [the] parent company['s] objectives. This will include being consulted with by 
[sic] other staff and having final authority to approve travel destination product-line 
expansions. His implementation of company goals will also include the review of 
possible subordinate support staff increases and the possibility of hiring even some 
independent contractors as salespersons to work for the company in areas not originally 
anticipated to be covered by the company's staff. Unilaterally has authority to revise 
policies in response to worldwide economic conditions, banking currency exchanges 
and demand for products. 2-5 hours per week 
Page 5 
Will run the daily operations of the business and making all routine discretionary 
decisions associated with operating the leather goods importing business, including, but 
of course not limited to arranging for the presentation of company travel services and 
time-share product lines to current and potential clients throughout the United States. 
This will include review of the progress of contacting present customers by the sales 
staff to inform them of new product lines, changes in current product availability. Will 
also deals [sic] with customer executives or managers to set pricing, negotiate sales 
terms and reviews [sic] purchase orders made by [slales [alssociates to assure 
profitability. Will reviews[ sic] activity reports and financial statements prepared by 
accountants and internal financial personnel to determine progress and status in sales 
and marketing. Will review company objectives in response to current 
market/economic conditions. 12- 1 8 hours per week 
Will plan and develop public relations for the company including the resolution of any 
and all disputes between company's representatives and customers, banks, if necessary. 
In order to assure customer satisfaction with the leather goods products offered by the 
company, he will correspond with customers[,] executives[,] or representatives when 
the need arises. Will dictate these duties to the subordinate managers, as necessary, but 
when questions arise as to issues or purchases that the staff cannot handle he will 
answer these issues in order to attain company objectives. Will coordinate the work of 
all present and future salaried employees in order to ensure that corporate quality and 
satisfaction goals are being achieved, including internal record keeping. 3-6 hours per 
week. 
Will oversee and supervise all employees of [the petitioning entity] by calling and 
monitoring all staff meetings for managers and employees. Will make sure that the 
managers know exactly what is expect of them and their staff and that all jobs are 
getting done according to the company policies and business plan and then will 
evaluate the performance of the employees and departments. Will assure that the entire 
company and those working under the staff, possibly as subcontractors/sales persons, 
are will acquainted with all present and future company policies, objectives and 
operating procedures, including chain of command. 6 hours per week. 
Will function as the connection with Mainland Chinese parent company [ ] to make 
sure that leather product information is properly generated to them for sales orders and 
to make sure that the leather bags, belts, wallets and other merchandise can [be] 
produced and the length of time for production[,] the prices and the shipping 
arrangements are satisfactory to the customer. He will deal directly with the parent 
company's production and sales managers to follow-up on all orders sold by the United 
States company. If there are problems with the orders he will trouble shoot the 
problems. 3-6 hours per week. 
Will analyze company budgetary issues and sales projections submitted by sales 
persons to determine the need for additional funding for marketing the leather products 
in the United State and North American markets. Will authorize company annual 
budget and establish precisely how the funds will be spent and distributed amongst the 
different departments in the U.S. in order to ensure the profitability. 
 Will set 
investment and monetary policies for United States company to achieve optimum 
returns. 1-3 hours per week. 
Page 6 
Will confirm the sales orders made by sales persons in terms of pricing and other 
important sales terms to guarantee revenues and profits. Will agree with sales persons 
on possible introduction of new leather products for profitable sale. Will inspect 
financial reports as generated by sales persons on a monthly basis and accountants on a 
quarterly basis to see condition of company. Will assure that the present customer 
accounts will be controlled and managed in the most efficient, and profitable manner as 
possible in accord with all company and requirements and the specific requirements of 
the account. 6 hours per week 
Will generate plans selling and distributing the company leather foods via suggestions 
from sales staff and customer feedback in an effort to expand product lines and increase 
share. Will approve all such marketing plans prior to putting them in place. Will speak 
with customer executives regarding quality of the leather products manufactured by the 
parent company and sold by the United States company to make sure that corporate 
quality and satisfaction goals are met. 4 hours per week. 
Will deal with United States company accountants, attorneys and bank officials that 
assist in operations of the United States business. Will assure that all necessary state, 
local and federal government authorities are given complete, timely and courteous 
access to company facilities and information upon request. 1-3 hours per week. 
Will attend and/or appoint the company sales representatives to attend all necessary 
leather goods-related trade shows in which the company is interested, meetings with 
purchasing agents for large customers. 1-3 hours per week. 
Counsel provided an organizational chart of the United States company, on which the petitioner identified the 
following managerial positions as being subordinate to the beneficiary: vice general manager of marketing 
and human resources, vice general manager of design, purchases, imports and warehousing, design manager, 
purchase manager, import manager, warehouse manager, finance manager, human resources manager, new 
project development manager, marketing managers of the eastern and western United States, and marketing 
managers of North America and South America. The AAO notes that the petitioner's representation of 
employing thirteen managerial employees, one of whom performs as vice general manager of both marketing 
and human resources, conflicts with its initial claim on the Form 1-1 40 of employing a ten-person staff. 
The director issued a notice of action on January 12, 2006 informing the petitioner that the record did not 
establish that the United States company would employ the beneficiary in a primarily managerial or executive 
capacity. The director instructed the petitioner to submit evidence reflecting its managerial and personnel 
structure, including: (1) the number of supervisors the beneficiary would manage; (2) the job titles and job 
duties of the subordinate employees; (3) the managerial, executive, or technical skills necessary to perform in 
the beneficiary's position; (4) the amount of time the beneficiary would devote to performing managerial or 
executive tasks; and (5) the degree of discretionary authority held by the beneficiary in the company's day-to- 
day operations. The director directed the petitioner to submit its year 2003 Internal Revenue Service (IRS) 
Forms W-2 and W-3, its federal income tax return from the same year, and its year 2004 payroll roster. 
The petitioner's present counsel responded in a letter dated April 5, 2006. In an attached April 3, 2006 letter, 
the petitioner noted the beneficiary's "managerial" authority over the United States company's logistics, 
finance and administration, and sales and marketing departments, and contended that he would qualify as an 
"executive" as a result of his performance of the following job duties: 
Page 7 
1. Managing three departments made up of ten (10) managerial and professional 
employees[;] 
2. Supervising and controlling the work of both managerial and professional employees[;] 
3. Maintaining the authority to hire, fire, and promote professional and managerial 
employees; and 
4. Exercising absolute discretion over the day-to-day operations and functions of the 
Logistic, Sales & Marketing, Financial & Administration Departments[.] 
In an additional statement, the beneficiary was described as holding the following job responsibilities: 
Planning, developing and establishing polities [sic] and objectives of business organization 
in accordance with board directives and corporation charter (5 hours) 
Conferring with company officials to plan business objectives, to develop organizational 
policies to coordinate functions and operations between divisions and departments, and to 
establish responsibilities and procedures for attaining objectives (20 hours) 
Reviewing activity reports and financial statements to determine progress and status in 
attaining objectives and reviews objectives and plans in accordance with current conditions 
( 1 0 hours) 
Evaluating performance of managers and executives for compliance with established 
policies and objectives of [the] firm and contributions in attaining objectives (5 hours) 
Counsel provided an "updated" organizational chart of the staffing levels maintained by the petitioner at the 
time of its response. As the organizational chart reflects changes made by the petitioner to its personnel 
during the three years since the petition was filed, the staffing levels maintained by the petitioner on the filing 
date are unclear. See Mutter of Kutigbak, 14 I&N Dec. 45, 49 (Comm. 1971) (stating that 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). As the record contains a state quarterly wage report 
for the third quarter of 2003 only, it is not clear which positions in the petitioning entity were occupied on the 
date of filing. The petitioner is obligated to clarify the inconsistent and conflicting testimony by independent 
and objective evidence. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In a decision dated August 2, 2006, the director denied the petition concluding that the petitioner had not 
demonstrated that the beneficiary would be employed by the United States entity in a primarily managerial or 
executive capacity. The director stated that despite the documentary evidence offered by the petitioner, the 
record failed to demonstrate whether the beneficiary "is acting as a bona fide manager or executive per 
statute." The director expressed ambiguity in the various representations of the petitioner's staffing levels, 
noting that the number of employees identified on the Form 1-140 and the organizational charts differ. 
Additionally, the director questioned the authenticity of the personnel records offered by the petitioner, noting 
uncertainty as to whether the compensation paid to the subordinate employees was "commensurate with a 
full-time managerial or executive position in a major metropolitan retail market." 
The director also noted the petitioner's failure to submit a "complete position description" for its employees, 
or to offer anything more than a description of "general managerial functions" performed by the beneficiary. 
The director further questioned who was performing the company's sales, as the petitioner had not accounted 
for the employment of sales representatives, and noted the possibility that the performance of these non- 
qualifLing responsibilities would rest with the beneficiary. 
Page 8 
The director also focused on the fact that the beneficiary was not yet employed with the petitioning entity, and 
stated that "it is not readily apparent that the beneficiary has occupied and will continue to occupy a position 
in the United States entity that can be deemed managerial or executive in nature." Consequently, the director 
denied the petition. 
Counsel for the petitioner filed a timely appeal on August 31, 2006, claiming that the director's 
misinterpretation of the petitioner's personnel records and financial documents resulted in an incorrect finding 
that the beneficiary would not be primarily employed as a manager or executive. In a September 27, 2006 
letter, counsel challenges the director's denial, stating that he failed to take into account changes in the 
petitioner's personnel during the approximately two years from the filing date and its response to the director's 
request for evidence. Counsel contends that the director's decision is incorrectly based on his examination 
and comparison of documents filed in December 2003 with documentation relating to March 2006. 
Counsel challenges the director's review of the petitioner's quarterly tax returns, stating that "[the director] 
appears to be confusing the number of employees listed in each Quarterly Form 941 with the number of 
employees issued a W-2 for a particular year." Counsel explains the possibility that the employees listed on 
the Form 941 would not coincide with the number of Forms W-2 issued by the petitioner for the same year. 
Counsel also disputes the director's review of the amount in wages paid by the petitioner during the year 
2003. Counsel notes that the petitioner's federal tax return reflects its financials for the fiscal year May 1, 
2003 through April 30,2004, whereas the Form W-3 identifies the wages paid during the 2003 calendar year. 
Counsel further contends that the director's consideration of whether the beneficiary is already employed by 
the petitioner is flawed. Counsel states that "[Citizenship and Immigration Services (CIS)] appears to be 
suggesting that the [beneficiary] should be able to show that he was paid wages commensurate with an 
individual in a managerial position during a period he was not authorized to be employed and was not 
employed." The AAO notes that the issue of whether the beneficiary is employed by the petitioning entity on 
the date of filing is not relevant to the analysis of "managerial capacity" or "executive capacity." See 
fj fj 1 0 1 (a)(44)(A) and (B) of the Act; 
Upon review, the petitioner has not established that the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. fj 204.50)(5). 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. A petitioner must clearly describe the duties to be performed by the beneficiary and indicate whether 
such duties are either in an executive or managerial capacity. The petitioner must demonstrate that the 
beneficiary's responsibilities will meet the requirements of one or the other capacity. Conversely, if the 
petitioner chooses to represent the beneficiary as both an executive and a manager, it must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the statutory 
definition for manager. 
Here, both the petitioner and the petitioner's former counsel represented in their initial letters, as well as the 
April 3, 2006 letter, the beneficiary's proposed employment as a "top executive" of the United States 
Page 9 
company. However, in the same April 3, 2006 response to the director's request for evidence, the petitioner 
noted the beneficiary's "managerial position" and referenced documentation that would establish the 
beneficiary's employment "in a managerial capacity." Additionally, throughout the record the petitioner cited 
criteria from the statutory definitions of "managerial capacity" and "executive capacity" as qualifying 
responsibilities to be held by the beneficiary. A petitioner may not claim to employ the beneficiary as a 
hybrid "executive/manager" and rely on partial sections of the two statutory definitions. The petitioner has 
not clarified whether the beneficiary's proposed employment capacity would be primarily managerial or 
executive. See section 203(b)(l)(C) of the Act. 
The multiple job descriptions offered by the petitioner fail to explain the beneficiary's proposed employment 
capacity or his specific managerial or executive job duties. The petitioner initially noted in its December 5, 
2003 letter ten job responsibilities held by the beneficiary in his position as general manager and president. 
Yet, following the director's request for additional evidence, the beneficiary's job responsibilities were 
reduced to a list of four, on which counsel simply restated criteria of "managerial capacity1' and "executive 
capacity." Specifically, counsel's abbreviated list of job responsibilities included the beneficiary's authority to 
"[s]upervise and [control] the work of both managerial and professional employees," hire, fire, and promote 
the staff, exercise "discretion over the [company's] day-to-day operations and functions," and establish the 
organization's policies and objectives. 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, 1108 (E.D.N.Y. 
1989), ajfd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y .). 
Also, as the revised job description offered in response to the director's request for evidence does not comport 
with the initial December 5,2003 job description, it does not provide clarification of the beneficiary's position 
in the United States entity. According to the job description originally submitted by the petitioner, the 
beneficiary would spend the majority of his time, approximately twelve to eighteen hours per week, making 
"routine discretionary decisions" pertaining to the operations of the company, responsibilities that the 
petitioner noted in its response to the director's request for evidence would consume only ten hours of the 
beneficiary's time. In contrast, based on the beneficiary's revised job description offered in its April 5, 2006 
response, the beneficiary would primarily plan business objectives and policies, devoting approximately 
twenty hours per week to this task. The conflicting job descriptions raise questions as to the tasks to be 
primarily performed by the beneficiary in the position of general managerlpresident. The AAO further notes 
that the petitioner only mentioned the beneficiary's purported employment as general manager in its 
December 5, 2003 letter, and did not explain his dual role as general manager and president in its subsequent 
responses to the director's request for evidence or on appeal. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). The petitioner is 
obligated to clarify the inconsistent and conflicting testimony by independent and objective evidence. Matter 
of Ho, 19 I&N Dec. 582,59 1-92 (BIA 1988). 
The AAO notes that despite the director's observation in his August 2,2006 decision of a deficient description 
of the beneficiary's employment, counsel did not offer on appeal an additional explanation of the beneficiary's 
managerial or executive job duties. 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). 
Page 10 
Moreover, a review of the petitioner's staffing levels with respect to its overall purpose and stage of 
development does not corroborate the petitioner's claim that the beneficiary would be employed in a primarily 
managerial or executive capacity. As required by section 10 1 (a)(44)(C) of the Act, if staffing levels are used 
as a factor in determining whether an individual is acting in a managerial or executive capacity, CIS must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of development 
of the organization. 
As addressed by the director, the AAO stresses ambiguity in the petitioner's staffing levels at the time of 
filing. While the petitioner represented on the Form 1-140 a staff of ten, its December 3 1, 2003 quarterly tax 
return indicates the employment of five workers in the quarter during which the instant petition was filed. 
Also, the organizational chart originally filed with the immigrant visa petition identified fourteen employees. 
The petitioner has not offered a clear depiction of its staffing levels and the specific lower-level positions 
occupied by employees on the filing date. 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). The AAO again notes that the "updated" organizational chart 
submitted in response to the director's request does not clarify the company's organizational hierarchy for the 
relevant period in question. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971) (stating that 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). 
Nevertheless, based on the petitioner's claim of ten employees, if the AAO were to consider the workers 
employed during the third quarter of 2003 as employees during the fourth quarter as well, the record would 
suggest the following subordinate staff: vice general manager of marketing and human resources, vice general 
manager of design, importing, purchases, and warehousing, design manager, purchase manager, import 
manager, warehouse manager, marketing manager of the Eastern United States, marketing manager of North 
America, finance manager, and a marketing manager of South America, who worked on a contractual basis. 
The AAO notes that the amount of wages paid to the design, purchase and finance managers during the third 
quarter of 2003 suggests employment on less than a full-time basis. Additionally, except for the two vice 
general managers, none of the remaining managerial employees are supervising any lower-level employees. 
Based on the above-outlined organizational hierarchy, which the AAO again emphasizes has not been 
conclusively established by the petitioner, it is questionable whether the beneficiary would be supported in a 
primarily managerial or executive capacity. The petitioner's claim that the beneficiary "would be responsible 
for daily administration and oversight of the investment and distribution and sales operations in the United 
States, including the final decision on advertising, investments, promotions and product-line offerings of the 
United States company" is undermined by its deficient lower-level staff. For example, the petitioner has not 
accounted for the performance of its advertising, product development or promotions functions. In fact, the 
petitioner's December 5, 2003 letter suggests that the beneficiary would personally "plan and develop public 
relations for the company," "set pricing, [and] negotiate sales terms," as well as act ensure the production and 
shipping of products in his role as a liaison between the United States company and the foreign entity's 
production department. While the initial organizational chart identified a new product development section 
manager, there is no documentary evidence confirming his employment. Moreover, it is questionable 
whether the petitioner's part-time finance manager, who the petitioner represented on its organizational chart 
as handling its taxes, company accounts, salary calculations, accounts payable and receivable, and price 
assessments, would also be available to perform its investment function. Doubt cast on any aspect of the 
Page 11 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. 
The petitioner's additional claim that the beneficiary would "not be handling the actual sales and distribution 
and shipping of the products" is also undermined by its failure to account for the employment of a manager 
for the western United States and a manager of new product development, positions that were identified on 
the original organizational chart but not shown to have been occupied on the filing date. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Cra3 of 
California, 1 4 I&N Dec. 1 90 (Reg. Comm. 1 972)). 
Based on the foregoing discussion, the petitioner has not demonstrated the beneficiary's proposed employed at 
the time of filing in a primarily managerial or executive capacity. Despite the deficient record clarifying the 
beneficiary's specific managerial or executive job duties, the AAO stresses the petitioner's failure to 
demonstrate the organizational hierarchy maintained at the time the petition was filed. 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. 9 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.