dismissed EB-1C Case: Manufacturing

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(l)(i). 
?pew dew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a United States corporation based in York, Nebraska that engages in the 
manufacture of pneumatic conveying equipment. It seeks to employ the beneficiary as its General 
Manager - Asia Pacific. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner had not established that the 
beneficiary was employed by the foreign entity in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner contends that the 
director's decision is in error. Counsel submits a brief and additional evidence on appeal. 
Section 203(b) of the Act states in pertinent part: 
(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 States under this subparagraph, 
has been employed for at least 1 year by a firm or corporation 
or other legal entity or an affiliate or subsidiary thereof and 
who seeks to enter the United States in order to continue to 
render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for the firm, corporation or other legal entity, or an affiliate 
or subsidiary of that entity, and are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must hish a job 
offer in the form of a statement that indicates that the alien is to be employed in the United States in 
a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. See 8 C.F.R. 5 204.50)(5). 
At issue in the present matter is whether the beneficiary was employed abroad in a primarily 
managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 8 1 101 (a)(44)(A), provides: 
The tern "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. § 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Page 4 
In an undated letter submitted with the Form 1-140, Immigrant Petition for Alien Worker, the 
petitioner indicated that it hired the beneficiary as its General Manager - Asia Pacific in 2005 to 
expand its business in Asia. The petitioner stated that while the company is based in York, 
Nebraska, the beneficiary was hired under an H- 1 B visa and has been situated in Shanghai, China for 
most of his time with the company. The petitioner stated the following with respect to the 
beneficiary's U.S. position: 
As General Manager - Asia Pacific, based in York, Nebraska, [the beneficiary] will 
continue to be in charge of the Asia Pacific Office in Shanghai, China. He will 
continue to be responsible for developing and negotiating set up of - 
, running and managing all business and daily activities and 
operations and personnel. A significant part of his responsibilities will continue to 
include localizing manufacturing and sourcing; developing the market in various 
industries especially cement related industries. He has conducted many presentations 
of design and proposals at various exhibitions in the Asia Pacific region. He will 
continue to do so, in Asia Pacific and elsewhere. 
In a document dated July 24, 2008, entitled "Status of Cyclonaire Operations in Asia (Work 
Requirements for [the Beneficiary])," the petitioner indicated that in September 2006, the petitioner 
reached a verbal agreement with )a Chinese company, to 
collaborate on the pneumatic conveying business, with S-Couvrot acting as a technical support party 
and signing contracts on behalf of the petitioner, as the latter did not have a legal presence in 
Shanghai. The petitioner stated that in September 2007, the two parties agreed to form a 60-40 joint 
venture which would set up and invest in a company in Shanghai, to be named Cyclonaire 
A. -, 
by the end of September 2008. The petitioner 
described the "work on hand" for the beneficiary as including the following categories: 
Work to form Cyclonaire Shanghai [such as transferring two S-Couvrot 
employees to Cyclonaire Shanghai; recruitment and training of additional staff; 
setting up of office systems] 
Setting up of a pneumatic conveying demo system & assembly workshop at S- 
Couvrot 
Sale & marketing 
Preliminary design & quotation preparation 
Delivery of sold system 
Commissioning of delivered system 
Miscellaneous [such as liaise with accounting on payment and collection issues; 
monthly reporting on various aspects of operation; arrangements for CEO visits] 
The record also contains a copy of the beneficiary's resume, which describes his responsibilities as 
General Manager - Asia Pacific for the petitioner as: 
Reporting to CEO 
In charge of the Asia Pacific Office in Shanghai 
Develop the market in China first and Asia Pacific 
Identify, negotiate and propose cooperation partner 
Identify, negotiate and propose sale agents 
Identify, audit and build up local suppliers. 
Marketing & Sales, Quotation preparation/submission/negotiation 
Basic design and proposal preparation. 
Identify, audit and secure local manufacturers. 
All documentation preparationltranslation. 
Set up after sales service team after reaching a local partnership. 
Run and manage local office. 
On August 8, 2008, the director issued a request for further evidence (RFE), in which he instructed 
the petitioner to submit the following evidence relating to the beneficiary's position abroad: 
1. A detailed description of the duties performed by the beneficiary in his position 
abroad, including the actual specific, day-to-day tasks that were involved with the 
completion of each duty and an estimate of the percentage of time the beneficiary 
dedicated to each duty. 
2. A detailed organizational chart for the beneficiary's employer abroad that 
corresponds with the beneficiary's employment abroad, including the names and a 
detailed description of the job duties for the beneficiary's subordinate employees, 
or if he had no direct subordinates, identify the individuals whose work he 
directed, with whom they were actually employed, and describe the arrangement 
that gave the beneficiary the authority to supervise their work. 
In response to the RFE, the petitioner provided a description of the beneficiary's position abroad that 
categorizes his duties and allocates his time to those categories as follows: 
2. Administration (25%) 
3. Financelaccounting (25%) 
4. Sales & Marketing (15%) 
5. Project Management (1 7%) 
6. Miscellaneous (3%) 
The petitioner listed a number of duties under each category, as restated in full in the director's 
decision. The petitioner also submitted a document entitled "Summary of Employment 2005-2008," 
in which the petitioner claimed that S-Couvrot's Bulk Material Department has been working under 
the management of Cyclonaire on Cyclonaire pro-jects since April 2007, and would be transferred to 
- 
Cyclonaire (shanghai) after its inc&poration. The petitioner identified the three employees of S- 
and - 
-!!:cording to the petitioner,the Senior Systems Engineer and the Admin Clerk reported 
directly to the beneficiary-, and the Technician reported to the Senior Systems Engineer. 
 The 
petitioner provided brief job descriptions for these employees. The petitioner also submitted an 
organizational chart dated July 2008 for , which depicts a "current" 
structure for the company consisting of the Bulk Material Department of S-Couvrot, as described 
above, and a "proposed" structure, with the beneficiary, as General Manager, supervising the S- 
Couvrot Senior Project Engineer and Technician, and a number of other positions yet to be filled. 
On October 20, 2008, the director denied the petition, concluding that the petitioner has not 
established that the beneficiary was employed abroad in a primarily managerial or executive 
capacity. Specifically, the director noted that the petitioner acknowledged that the beneficiary spent 
over 30% of his time in non-qualifying sales and marketing and project management duties. Of the 
remaining duties, the director found that a number of them are "clearly non-qualifying duties such as 
renting office space, planning and construction of a demonstration pneumatic conveying system and 
workshop, setting up filing and procurement systems, and preparing budgets." The director found 
that other duties, such as "drafting of policies, systems and regulations for the operation," "planning 
of organization/headcount/pay package" and "preparation/execution of various administrative1 
operation plans" are too vague to be determined whether they qualify as managerial or executive 
level duties. 
Further, the director noted, the petitioner only provided time estimates for broad categories rather 
than specific duties, thus it is not possible to estimate the amount of time spent on the clearly 
operational duties versus those that qualify as managerial or executive. The director also found the 
record to be inconsistent as to the number of employees supervised by the beneficiary. The director 
noted that the organizational chart submitted depicts only a "proposed" hierarchy for Cyclonaire 
(Shanghai), which was not yet in existence at the time of the decision. In addition, the director 
observed that while it appears the beneficiary has control of the work of the S-Couvrot employees, it 
is unlikely that he has authority to fire them given that they remain employees of another company. 
Moreover, the director found, the beneficiary apparently spent less than 25% of his time managing 
these individuals. 
On appeal, counsel contends that the beneficiary's role "is indeed managerial, executive, and in the 
alternative, he is a functional manager." Counsel argues that the duties the director found to be non- 
qualifying are in fact managerial andor executive in nature, based on counsel's interpretation of the 
job duties of a general manager as described in the Department of Labor's Dictionary of 
Occupational Titles (DOT) andor its Occupational Information Network (ONET).~ Counsel further 
asserts that the descriptions of duties that the director found to be vague in fact comport with the 
regulations and the ONET description, thus such duties are all "managerial and/or executive." 
Counsel hrther asserts that, insofar as the beneficiary is found to be involved in the completion of 
non-qualifying day-to-day tasks of the company, the reasonable needs of the organization in light of 
the overall purpose and stage of development of the organization must be considered. Counsel 
further claims that a large portion of the beneficiary's duties are executive, as defined by the 
regulations. Counsel claims that the beneficiary directs the management of the company, establishes 
goals and policies, and receives very little supervision and guidance from higher level executives 
and board members. Alternatively, counsel argues, the beneficiary should be considered a hction 
1 Counsel includes in his brief a list of duties purportedly found in "ONET, The Dictionary of 
Occupational Title ("ONET"). It is unclear whether counsel is referring to ONET or the DOT. 
Page 7 
manager in that he is managing an essential function or operation, namely the Asia-Pacific branch of 
the business. 
Counsel denies that there are any inconsistencies as to the number of subordinate employees 
supervised by the beneficiary. Counsel reiterates that the two S-Couvrot employees whom the 
beneficiary was supervising have formally commenced work under Cyclonaire (Shanghai) as of 
January 1, 2009, and that another employee has been recruited. Counsel further argues that in view 
of the joint venture between Cyclonaire and S-Couvrot, as a general manager employed by 
Cyclonaire, the joint venture majority shareholder, the beneficiary has complete control over the 
employees of S-Couvrot. 
Counsel challenges the director's finding that only 25% of the beneficiary's time is spent on 
supervisory duties. Counsel argues that many of the other duties, such as sales and marketing, are 
incidental to the training of subordinate employees so that they can assume those duties upon the 
beneficiary's transfer to the United States. Counsel contends that other duties deemed non- 
qualifying by the director under the headings of "setting up Cyclonaire (Shanghai)" and 
"finance/accounting" also relate to employee matters. Thus, counsel concludes, the number of 
employees and the total time spent supervising them should not be determinative of the beneficiary's 
eligibility. Regarding the question of whether Cyclonaire (Shanghai) was in existence at the time of 
filing, counsel concedes that the entity was still in proposal stage at the time the petition was filed. 
However, counsel claims there have been further development since the director's decision and the 
entity is now incorporated and fully operational. 
In support of the above cl bmits, among other things: (1) a letter dated 
November 14, 2008 from of the Robert H. Smith School of Business, 
University of Maryland, evaluating the beneficiary's role; (2) a letter dated November 10,2008 from 
the chairman of S-~ouvrot stating that the two -s-~ouvrb; employees previously described "have 
been working under [the beneficiary's] management since 2007 and will be transferred to Cyclonaire 
(Shanghai) on January 1, 2009"; (3) a group photograph and copies of the business cards of the 
beneficiary and the three current employees of Cyclonaire (Shanghai); and (4) a number of 
documents to establish the existence and current functioning status of Cyclonaire (Shanghai). 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to 
establish that the beneficiary was employed abroad in a primarily executive or managerial capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. 5 204.50)(5). The petitioner's description 
of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. Beyond the required 
description of the job duties, the U.S. Citizenship and Immigration Services (USCIS) reviews the 
totality of the record when examining the claimed managerial or executive capacity of a beneficiary, 
including the petitioner's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational 
duties, the nature of the petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. 
Further, it is noted that the definitions of executive and managerial capacity each have two parts. 
First, the petitioner must show that the beneficiary performs the high-level responsibilities that are 
specified in the definitions. Second, the petitioner must prove that the beneficiary primarily performs 
these specified responsibilities and does not spend a majority of his or her time on day-to-day 
functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 
1991). Whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of proving that the beneficiary's duties are "primarily" managerial 
or executive. See sections 101(a)(44)(A) and (B) of the Act. 
Initially, the AAO notes counsel's reference on appeal to a description of the position of general 
manager from either ONET or the DOT that counsel deems to be analogous to the beneficiary's 
position. While this job description provides some insight into what may be the duties ascribable to 
persons occupying similar positions in a corporate hierarchy generally, they do not describe the 
beneficiary's job duties specifically. The beneficiary's actual job duties themselves reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), 
afd, 905 F.2d 41 (2d. Cir. 1990). Further, an employee will not be considered a manager simply 
because of his job title. As such, the AAO's analysis of the beneficiary's eligibility will be based on 
the description of the beneficiary's actual job responsibilities, as presented in the record, rather than 
on any generic equivalence of the proffered position. 
Upon review of the description of the beneficiary's job duties abroad, the AAO concurs with the 
director's conclusion that the beneficiary was not "primarily" performing managerial or executive 
duties. As the director observed, most of the tasks listed under the categories of "sales and 
marketing" and "project management," which reportedly occupied 32% of the beneficiary's time, 
were day-to-day operational tasks of the company and therefore did not qualify as managerial or 
executive duties. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). Further, as the director noted, a number of tasks listed under the other work categories also 
appeared to be possibly operational tasks, or tasks relating to establishing the operational routines of 
the company or department, that cannot be categorized as managerial or executive in nature. For 
example, under "Setting up of Cyclonaire (Shanghai) (15%)", the beneficiary's duties included 
"preparation of all documentation required, "visitlliaise with bank on setting up of bank account," 
"visit & renting of office area, "plan, organize and setting up of office," and "plan, organize and 
construction of the demonstration pneumatic conveying system. Under "Administration (25%)," the 
beneficiary was involved in the "preparation/execution of various administrativeloperation plans," 
and "setting up of filing system" and "procurement system." Tasks that were potentially non- 
qualifying under "FinanceIAccounting (25%)" include "preparation of budget" and "expense report", 
and "monitorlfollow up in necessary payment collection from customers." 
In addition, the AAO notes that in describing the beneficiary's "work on hand as of July 24, 2008, 
the petitioner included a number of non-qualifying duties such as "preliminary design of a demo 
system," "prepare and place component orders," "prepare drawinglplace orderlfollow uplquality 
check," "respond to sales inquir[ies,Iu "preliminary design & quotation preparation," "collection of 
system information from clients," "presentation of quotation to clients," and "arrange delivery of 
system to client.'' Again, these tasks appear to be day-to-day operational tasks of the company that 
Page 9 
would not qualify as managerial or executive duties. Matter of Church Scientology International, 19 
I&N Dec 604. There is no indication in the record that these duties were delegated to any 
subordinate employees of the beneficiary at the time. 
On appeal, counsel acknowledges that the beneficiary did engage in non-qualifying tasks but asserts 
that some tasks were "an essential part of his overall purpose in setting up an office in Shanghai," 
and others, such as "setting up filing system" and "procurement system" and "preparing the budget," 
were actually managerial/executive in nature. While counsel's explanation of how these tasks could 
be interpreted as managerial tasks is not unreasonable, these phrases alone, without more, are simply 
too vague and open to different interpretations. For example, "preparationlexecution of various 
administrativeloperation plans" could have involved "creating goals and policies" of the Shanghai 
office, as counsel claims, or it could have meant the day-to-day execution of administrative tasks. 
Similarly, "setting up filing system" and "procurement system" could have been a matter of creating 
fundamental procedures for the office, as counsel claims, or it could have involved merely the 
physical setting up of these systems. Essentially, the record lacks the necessary details to support 
counsel's assumptions and interpretation of these descriptions of duties. 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 
Rarnirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
addressing the beneficiary's managerial capacity. However, it has not been established that 
possesses any direct experience relating to, or knowledge of, the petitioner or the 
beneficiary's role or actual job duties that would lend credence to his discussion of the beneficiary's 
qualification as a manager or executive for purposes of this petition. Rather it appears that he has 
only reviewed the beneficiary's job description as stated in response to the request for evidence. As 
discussed above, this description did not adequately address the amount of time the beneficiary 
allocated to specific duties. The AAO's review is based upon the totality of the evidence in the 
record of proceedings. While the AAO may, in its discretion, use as advisory opinion statements 
submitted as expert testimony, where an opinion is not in accord with other information or is in any 
way questionable, the AAO is not required to accept or may give less weight to that evidence. 
Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
Further, as the director noted, the petitioner allocated the beneficiary's time to the broad categories of 
duties rather than to specific duties. Thus, it cannot be determined how much of the 65% of the 
beneficiary's time allocated to "Setting up of Cyclonaire (Shanghai)," "Administration", and 
"FinanceIAccounting" was actually attributable to the potentially non-qualifying tasks discussed 
above. Thus, in the absence of further details regarding the beneficiary's duties, the record is 
insufficient to demonstrate that the beneficiary's was primarily engaged in managerial or executive 
duties in his position abroad. 
Counsel asserts on appeal that, even if the beneficiary performed a number of non-qualifying duties, 
"the reasonable needs of the organization in light of the overall purpose and stage of development of 
the organization must be considered." However, the reasonable needs of the petitioner will not 
supersede the requirement that the beneficiary be "primarily" employed in a managerial or executive 
capacity as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 
1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who allocates 51 
percent of his duties to managerial or executive tasks as opposed to 90 percent, but those needs will 
not excuse a beneficiary who spends the majority of his or her time on non-qualifying duties. The 
petitioner must still establish that the beneficiary was employed abroad in a primarily managerial or 
executive capacity. As discussed above, the petitioner has not established this essential element of 
eligibility. 
Further, counsel asserts that "[wlith the now functioning new office in Shanghai, many of these non- 
qualifling duties will quickly be eliminated and [the beneficiary] will be focusing on supervising, 
overseeing and managing the Shanghai office." The AAO does not find this assertion to be 
persuasive since at issue is whether the beneficiary's overseas duties had been primarily managerial 
or executive for at least one year at the time the petition was filed, not at a later point in time. 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. 1971). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 10 1 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. $ 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." Section 101(a)(44)(A)(iv) of the Act; 8 C.F.R. 5 204.5(j)(2). If a 
beneficiary directly supervises other employees, the beneficiary must also have the authority to hire 
and fire those employees, or recommend those actions, and take other personnel actions. Section 
10 1 (a)(44)(A)(iii) of the Act. 
In this instance, the record is insufficient to support the petitioner's claim that the beneficiary 
managed subordinate employees in his position abroad. In response to the RFE, the petitioner 
claimed that three employees from S-Couvrot's Bulk Material Department has been working under 
the management of Cyclonaire, specifically under the beneficiary's direction, since April 2007, and 
would be officially transferred to Cyclonaire (Shanghai) after its incorporation. However, the 
evidence submitted at that time did not support that claim. The organizational chart dated July 2008 
for Cyclonaire (Asia) Limited, depicts a "current" stnlcture for the company where the Bulk Material 
Department of S-Couvrot Machinery, as described above, did not appear to be under the 
beneficiary's direction. It is only in the "proposed" structure that the beneficiary, as General 
Manager, is depicted as supervising the S-Couvrot Senior Project Engineer, Technician, and a 
number of other positions yet to be filled. Further, the record before the director contained no 
evidence documenting the claimed arrangement whereby the beneficiary had managerial 
responsibilities over the S-Couvrot employees prior to the incorporation of Cyclonaire (Shanghai). 
The record contains only one sample contract between S-Couvrot and the petitioner, dated May 8, 
2008, which concerns the sale of certain products and contains no provisions relating to the 
management of S-Couvrot employees 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Counsel claims on appeal that the beneficiary "has explicit authority from S-Couvrot to manage all 
aspects of employee matters, including hiring and firing them." Counsel submits a letter dated 
November 10, 2008 from, for confirmation of the above. 
However, upon review, the AAO notes that the letter in question states only that the beneficiary "has 
full authority to recruit or terminate all employees" under Cyclonaire (Asia) and Cyclonaire 
(Shanghai), with no reference to S-Couvrot employees. With respect to the S-Couvrot Project 
Engineer and Technician, the letter states only that they "have been working under [the 
beneficiaryl's management since 2007," without elaborating upon the scope of his authority over 
such employees, and that these two employees would be transferred to Cyclonaire (Shanghai) on 
January 1, 2009. It is also noted that, in a document entitled "Summary of Employment" submitted 
in response to the WE, the petitioner indicated that the S-Couvrot employees began working 
directly under the beneficiary in the name of Cyclonaire Asia as of April 2008, only three months 
prior to the filing of the petition. Again, at issue here is whether the beneficiary had indeed managed 
or directed the employees in question for at least one year in his position abroad and at the time the 
petition was filed. 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. at 49. As the evidence is insufficient to show that the S-Couvrot 
employees were in fact under the beneficiary's management prior to their official transfer to 
Cyclonaire (Shanghai) in 2009, the AAO cannot conclude that the beneficiary qualified as a 
"personnel manager" in his position abroad. 
Counsel argues on appeal that, alternatively, the beneficiary should have been considered a function 
manager in that he was "managing the Asia-Pacific branch of the business." 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. $ 1 101 (a)(44)(A)(ii). The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
is managing an essential hction, the petitioner must furnish a written job offer that clearly 
describes the duties to be performed in managing the essential function, i.e., identify the function 
with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. $ 204.5(j)(5). 
In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the 
beneficiary manages the function rather than performs the duties related to the function. An 
employee who primarily performs the tasks necessary to produce a product or to provide services is 
not considered to be "primarily" employed in a managerial or executive capacity. Boyang, Ltd. v. 
INS., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995) (citing Matter of Church Scientology 
International, 19 I&N Dec. at 604). 
As discussed earlier, the record indicates that in his position abroad, the beneficiary was primarily 
involved in performing non-qualifying, operational tasks of the business. Further, it has not been 
sufficiently established that the beneficiary actually managed a subordinate staff that would have 
Page 12 
relieved him from performing non-qualifying tasks. As such, it cannot be concluded that in his 
position abroad, the beneficiary qualified as a "function manager." 
Counsel also claims that "a large portion of [the beneficiary's] duties are indeed executive within the 
definition of 8 C.F.R. 204.5(j)(b)." 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. 4 1 101 (a)(44)(B). Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the 
broad goals and policies of the organization rather than the day-to-operations of the enterprise. 
Again, the evidence here does not establish that either of those two factors existed in connection 
with the beneficiary's position abroad. Accordingly, counsel's contention that the beneficiary 
qualified as an executive overseas also failed to find support in the record. 
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has 
failed to establish that the beneficiary was employed abroad in a primarily executive or managerial 
capacity. For that reason, the petition will be denied. 
Beyond the director's decision, the AAO also finds that the evidence is insufficient to establish that 
the beneficiary would be employed in the United States in an executive or managerial capacity. 
As previously noted, when examining the executive or managerial capacity of the beneficiary, the 
AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 8 204.5(j)(5). The 
petitioner's description of the job duties must clearly describe the duties to be performed by the 
beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id. 
Here, it is noted that the director requested a complete, detailed description of the day-to-day duties 
to be performed by the beneficiary in his U.S. position, including an estimate of the percentage of 
time the beneficiary would spend performing hislher duties. Although the petitioner submitted a 
document entitled "Proposed duties for permanent position in the U.S." listing the anticipated duties 
the beneficiary would be performing, that document does not set forth an estimate of the percentage 
of time for each duty, as the director requested. The regulation states that the petitioner shall submit 
additional evidence as the director, in his or her discretion, may deem necessary. The purpose of the 
request for evidence is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established, as of the time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). 
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
Further, it is noted that the description of the beneficiary's duties in the U.S. company is nearly 
-. 
identical to the description of his overseas iob duties, except for the absence of the "Setting up of 
- - 
" section -that was in the overseas job description and some 
differences in the "Project Management" sections in the two job descriptions. Thus, as was the case 
with his overseas job duties, it appears that the beneficiary would be performing a number of non- 
qualifying duties in the United States. Without the requested estimate of time allocation, it cannot be 
determined to what extent the beneficiary would have to perform non-qualifying duties. As 
previously noted, 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 Intl, 19 I&N 
Dec. at 604. 
In addition, the record is unclear as to whether there is a subordinate staff in the U.S. company to 
support the beneficiary. In response to the WE, the petitioner submitted an organizational chart for 
the U.S. company that depicts the beneficiary as General Manager -- Asia Pacific reporting directly 
to the ownerICE0 of the company, with no subordinates reporting to him. Further, based on 
counsel's memo responding to the WE and the description of the beneficiary's proposed U.S. job 
duties submitted at the same time, it appears that the beneficiary's subordinate staff would not be in 
place until after the completion of the incorporation of Cyclonaire (Shanghai), which counsel 
indicated would be by the end of 2008. Thus, at the time the petition was filed in July 2008, the 
beneficiary had no subordinate staff that would relieve him from having to perform non-qualifying 
duties in his U.S. position, even if the petitioner anticipates that staffing would be completed in the 
near future. Again, the petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Katigbak, 14 I&N Dec. at 49. 
In light of these deficiencies in the evidence, the AAO finds that the record does not establish that 
the beneficiary would be employed in the United States in an executive or managerial capacity as 
required by section 203(b)(l)(C) of the Act, 8 U.S.C. 9 1153(b)(l)(C). For this additional reason, 
the petition will be denied. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), afld. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989) (noting that the AAO reviews appeals on a de novo basis). When the AAO denies a petition 
on multiple alternative grounds, a plaintiff can succeed on a challenge only if it is shown that the 
AAO abused its discretion with respect to all of the AAO's enumerated grounds. See Spencer 
Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 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.