dismissed EB-1C Case: Marketing And Sales

(b)(6)
DATE: JUL 0 8 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S . Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER Fll...E: 
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 in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered , you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
t#-1-Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska 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 petitioner is an Ohio corporation organized on December 24, 2003. The petitioner states on the 
Form I-140, Immigrant Petition for Alien Worker, that it is engaged in "marketing and sales," 
employs 10 personnel, and reported a gross annual income of $231,429 when the petition was filed. 
It seeks to employ the beneficiary as its president. 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 October 31, 2012, the director denied the petition determining that the petitioner failed to 
establish: (1) that it has a qualifying relationship with the beneficiary's foreign employer; 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. 
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 
performed by the alien. The language of the statute is specific in limiting this provision to only those 
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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. 
I. The Issues on Appeal 
A. Qualifying Relationship 
The first issue to be discussed in this matter is whether the petitioner submitted sufficient evidence to 
establish that it has a qualifying relationship with the beneficiary's foreign employer. To establish a 
"qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. 
entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 
§ 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see above 8 C.F.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) provides in pertinent part: 
Affiliate means: 
( 1) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(2) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or 
proportion of each entity. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
Facts and Procedural History 
In this matter, the petitioner claims it is a wholly-owned subsidiary of' now known as 
' The petitioner explained that relocated from Italy to the Republic of 
Cyprus. Incidental to the relocation, the company was renamed Progemasrl Ltd. and incorporated 
under Cyprus law." The record indicates that the beneficiary was initially granted L-lA 
nonimmigrant status authorizing his employment with the petitioner in 2004, and that he maintained 
this status at the time the petition was filed. 
(b)(6)
Page4 
The minutes of a general meeting of the shareholders of , held on November 19, 2009, 
show that the beneficiary signed an agreement on behalf of the company with in October 
2009. Under the terms of that agreement, the company's production, research and development 
activities would relocate to within Italy and Brazilian subsidiary would 
become a subsidiary of The minutes further reflect that the beneficiary incorporated 
on November 5, 2009 in Cyprus. On behalf of . and its subsidiary, the 
petitioner, the marketing and consulting activity would move from Villorba, Italy to Limassol, 
Cyprus and the petitioner would continue to work under as its subsidiary. The 
minutes indicate that the beneficiary "decided to move all activities including its 
subsidiaries" for the best interest of the company. 
The minutes are signed by the beneficiary as the president and as the secretary, but do 
not specifically identify them as shareholders. The petitioner elsewhere identifies the 
beneficiary as the founder and president of' The petitioner does not indicate if all or any 
of employees also transferred from Italy to Cyprus or from to 
The petitioner did not explain or document the current status of the Italian company but instead 
treats as essentially the same company, even referring to the company in Cyprus as 
the beneficiary's last foreign employer despite the fact that it was incorporated more than four years 
after his transfer to the United States as a nonimmigrant. 
The petitioner also submitted a copy of its Articles of Incorporation, which show that it is authorized 
to issue 1,500 shares. The petitioner provided a photocopy of a stock subscription agreement dated 
"January_, 2004" signed by the beneficiary . The stock subscription agreement shows that 100 of 
the petitioner's shares will be issued to a company located in Italy, for $1 per share. 
The petitioner provided a copy of its stock certificate number 1 to on "January _, 
2004." The stock certificate is signed by the beneficiary as president and as treasurer/secretary. 
The record also includes a report and financial statements of for the 2010 year 
which 
identifies its Board of Directors and Company Secretary as On page 
9 of the 2010 financial statement, the auditors noted that the principal activities 
of the company continued to be "holding of investment and the provision of consultancy services." 
At page 15 of the same repott, the auditors indicated that held 100 percent of the 
petitioner's stock and identified the petitioner's principal activities as "general trading." 
In response to the director's RFE, the petitioner re-submitted several documents and also submitted its 
stock certificate #2. Stock certificate #2 issues 100 shares of the petitioner's stock to 
and is signed by the beneficiary as president and treasurer/secretary. A share ledger, also provided, 
showed stock certificate #2 was issued on July 9, 2012, nearly 11 months after the petition was filed. 
The ledger does not indicate that stock certificate #1 had been cancelled. 
The petitioner's response to the RFE also included copies of the petitioner's Internal Revenue Service 
(IRS) Form 1120, U.S. Corporation Income Tax Return, for the 2010 and 2011 tax years. For the 
2010 tax year, the petitioner indicated at Schedule K, item 7 that the com any is wholly owned by a 
single Italian shareholder. On Schedule G, the petitioner identified , Italy, as the 
(b)(6)
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entity owning 100% of the company 's voting stock, and identified the beneficiary as an individual 
who owns, directly or indirectly, 100% of the company's voting stock. In an attached Form 5472, 
Information Return of a 25% Foreign-Owned U.S. Corporation, the petitioner identified the 
beneficiary as the ultimate indirect shareholder of the company. The petitioner's 2011 IRS Form 
1120, at Schedule K, also indicated that the company is wholly owned by a single Italian shareholder. 
However, the attached Schedule G indicated that Cyprus, owns 100% of the 
petitioner's voting stock. The Form 54 72 for 2011 also identifies the beneficiary as the ultimate 
indirect foreign shareholder of the company. 
The petitioner also provided the memorandum of association for the Cyprus 
company. The memorandum of association stated purposes imd listed the name 
of its sole subscriber as owner of 1,000 shares in 
The record also included Articles of Association, its Tax Certificate, and 
Certificate of Registration in Cyprus. The petitioner further provided bank 
statement from January 6, 2011 to December 6, 2012 showing five credits received from 
in the total amount of $183,558 and one credit received from in the 
amount of $17,500. The petitioner included the invoices from 
and corresponding to the deposits. The invoices listed the services provided as 
"consulting" and expenses. 
Upon review of the evidence in the record, the director found that the petitioner had presented 
incomplete and inconsistent evidence of the qualifying relationship between the petitioner and 
The director questioned the issuance of stock certificate #2 to after 
the petition had been filed. 
On appeal, counsel for the petitioner asserts that the following documentation is sufficient to establish 
the claimed qualifying relationship: stock certificate #2 issued to ; the November 19, 
2009 general meeting of shareholders documenting the foreign entity's relocation to Cyprus; 
Memorandum of Association and Articles of Association dated November 3, 2009; 
and report and financial statements dated December 31, 2010, identifying the 
petitiOner as 100 percent owned by Counsel explains that the petitioner's stock 
certificate #2 was issued to address the director's concern that the petitioner's stock had not been 
properly transferred to the renamed and relocated foreign entity. Counsel contends that the 
documents submitted demonstrate that is a legal entity, systematically conducting 
business and that it was the petitioner's parent company at the time the petition was filed. 
Analysis 
To establish that the foreign entity and the petitioner enjoy a qualifying parent/subsidiary 
relationship, the petitioner must provide probative consistent evidence establishing the relationship. 
The director properly determined that the initial record did not include consistent evidence 
establishing the qualifying relationship. The petitioner's response to the director's RFE also failed to 
clarify with probative documentary evidence that the petitioner was, in fact, the foreign entity's 
subsidiary. 
(b)(6)
Page 6 
At the time the petition was filed, the only documented shareholder of the petitioning company was 
an Italian company. Despite the minutes of a shareholder meeting indicating that this 
company divided and transferred its operations and foreign subsidiaries to a separate Italian company, 
and a new Cypriot company, in 2009, the petitioner identified 
of Italy as its sole direct shareholder in its 2010 IRS Form 1120, filed with the IRS prior to the 
instant petition. The record contains no explanation for this inconsistency. In addition, as noted by 
the director, the petitioner simply issued a new stock certificate to the new foreign entity without 
cancelling stock certificate #1 in the stock ledger. Further, the AAO · finds that the minutes of 
November 2009 shareholder meeting provide insufficient information regarding the 
resulting status of the beneficiary's former Italian employer. The petitioner's claim that the company 
simply relocated to Cyprus is not sufficiently supported by the record. 
In order to establish eligibility for classification as a multinational manager or executive for 
immigrant visa purposes, the petitioner must establish that it maintains a qualifying relationship with 
the beneficiary's foreign employer; the foreign corporation or other legal entity that employed the 
beneficiary must continue to exist and have a qualifying relationship with the petitioner at the time 
the immigrant petition is filed. 8 C.F.R. § 204.5G)(3)(i)(C). A multinational executive or manager is 
one 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." Section 
203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C). 
Thus, the petitioner must establish that the foreign company that employed the beneficiary prior to his 
entry to admission to the United States in November 2004 as a nonimmigrant continues to exist, do 
business, and have a qualifying relationship with the petitioning company . The minutes of 
shareholder meeting indicate that the company split its operations between two separate 
companies and there is no evidence that the foreign entity that employed the 
beneficiary, continues to exist and do business in Italy. 
Moreover, there is no evidence that the beneficiary was ever employed by 
company was formed 5 years after his admission to the United States. 
evidence to support a finding that this is the same employer as 
__J as this 
Nor is there sufficient 
, based 
on the evidence submitted, is a company established in Cyprus and wholly owned by 
The ownership of has not been documented in the record. 
Further, the petitioner does not include evidence that the foreign entity established in Italy was 
dissolved prior to or contemporaneously with the incorporation of the entity in Cyprus, such that it 
could be described as a successor company. Likewise, the record did not include evidence that the 
foreign entity's employees were transferred to Cyprus. 
Upon review, the petitioner has submitted inconsistent evidence regarding the actual ownership of the 
petitioning company. The petitioner although claiming it issued a stock certificate (#2) to 
' in November 2009 continued to identify of Italy as its sole direct 
shareholder in its 2010 IRS Form 1120, filed with the IRS prior to the instant petition, as well as 
presenting inconsistent information regarding its ownership in its 2011 IRS Form 1120. Additionally, 
the record lacks evidence that the specific foreign employer 
that employed the beneficiary still exists 
(b)(6)
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and is doing business in Italy. As observed above, the record does not establish that the entity in 
Cyprus is a successor company to the Italian company or that the beneficiary was ever employed by 
the Cypriot company. The record lacks sufficient probative evidence documenting the "relocation" of 
the company. 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)). Upon review of the inconsistent evidence and the omission of probative documentary 
evidence, it cannot be concluded that the petitioner established that the foreign parent company is a 
qualifying organization as required by the regulation at 8 C.P.R. § 214.2(1)(1)(ii)(G)(2). For this 
reason, the petition may not be approved. 
B. Managerial or Executive Capacity 
The next issue in this proceeding is whether the petitioner submitted sufficient evidence to establish 
that the beneficiary would be employed in a primarily managerial or executive capacity. 
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--
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(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. 
Facts and Procedural History 
With regard to the proffered position of president, the petitioner stated the beneficiary directs all 
aspects of the petitioner's business as described below: 
• Direct and manage [the petitioner's] personnel depicted on [the petitioner' s 
organizational chart] (20% of time). 
o Determine the scope and responsibility of the job/position 
o Interview candidates recruited and screened by external recruiters 
o Exercise final decision as to hiring of employees/engagement of contractors 
o Establish salary and bonuses for employees and rates for contractors 
o Authorize the discipline of employees 
o Communicate preferences with referral agency for placement of contractors 
o Meet with project managers regarding performance and conduct of team 
members 
• Direct product development activities (70% of time). 
o Meet with large producers such as Kraft, Coke and Pepsi to learn their product, 
distribution and management needs, and specifications for same 
o Interface with international technical team regarding capabilities 
o Prioritize development opportunities and assign staffing 
o Negotiate major contracts for purchase of component parts 
o Oversee adaptation by [the petitioner's] project teams of internationally 
developed concept for implementation in the United States 
o Supervise [the petitioner's] employees who work with ad agencies and 
producer's brand managers to introduce new vending product to the market. 
• Prepare for and represent [the petitioner] at trade shows and trade association 
events (5% of time). 
• Visit key customers and key potential customers (5% of time). 
The petitioner's organizational chart identified three departments repmting directly to the beneficiary 
as president. The marketing, sales, and customer service department listed a digital marketing 
manager, a sales/customer service clerk, and a digital graphic designer. The petitioner noted that the 
sales/customer service clerk was not its employee. The engineering and new product development 
department listed an engineering manager, a programming engineer, two programmers, an electrical 
(b)(6)
Page9 
engineer, a mechanical engineer, a software architect, and one engineering support position . The 
petitioner noted that the engineering manager, one of the programmers, the electrical engineer and the 
engineering support position were not individuals employed by the petitioner. The IT, graphic design 
department listed a project manager, a graphic designer, an IT support position, two graphics/data 
assistants, and a part-time photographer. The petitioner noted that the project manager , the graphic 
designer and one of the graphics/data assistants were not individuals employed by the petitioner. The 
petitioner explained that the individuals listed on the organizational chart that it did not employ were 
temporarily assigned to the petitioner and were compensated by the assigning entity. 
The petitioner provided copies of IRS Forms W-2 issued to eleven individuals for the 2010 year. The 
Forms W-2 included wages that ranged 
from $1,656 to the beneficiary's wage of $52,000. 
In response to the director's RFE, the petitioner expanded upon the beneficiary's duties. The 
petitioner continued to indicate that the beneficiary spent only 20 percent of his time directing and 
managing the petitioner's personnel. The petitioner noted again that the beneficiary spends the 
majority of his time, 70 percent, directing product development activities. Some of the clarifying 
duties included researching potential vending machine clients, providing input on presentations, 
traveling to meet with the clients, and informing project managers for implementation. 1 The 
petitioner also indicated that the beneficiary will travel to meet with an international technical team to 
obtain their input and resolution to clients' challenges and to contact the customer with the 
resolution/compromise. The petitioner stated further that the beneficiary will prioritize development 
opportunities and assign staffing by reviewing the project manager's report, discussing employee and 
contractor capabilities, and communicating same to the project manager. The petitioner also noted 
that the beneficiary will negotiate major contracts for component parts by researching, making 
contacts, calculating cost, conveying cost to customers, and continuing to negotiate cost as necessary. 
The petitioner also indicated that the beneficiary will obtain information regarding adaptions of the 
product and authorize the project manager to make the adaption . The petitioner stated that the 
beneficiary will meet with the employee working with the ad agencies and producers for a report and 
to share ideas and comments with the employee. The petitioner reiterated that the beneficiary will 
spend five percent of his time preparing and representing the petitioner at trade shows and five 
percent of his time visiting key customers and key potential customers. 
The petitioner also described the duties of those individuals listed on its organizational chart. The 
description of duties of the petitioner's employees included: (1) the digital marketing manager who 
developed and implemented web, social, and creative branding, conducted market research, and 
indirectly supervised the digital graphic designer; (2) the digital graphic designer who delivered 
original graphic design and interactive media using computer software; (3) the programming engineer 
who led projects, provided project updates to the president, planned, designed and developed 
applications using computer languages; (4) the programmer who planned, designed and developed 
applications using computer languages; (5) the mechanical engineer who developed mechanical 
solutions to reform legacy components for new technology, designed mechanical components , 
communicated with suppliers, interpreted engineering drawings and specifications, developed and 
tested models of alternative design, and investigated equipment failures, monitored and coordinated 
1 The only project manager listed on the petitioner's organizational chart is not employed by the petitioner. 
(b)(6)
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production; (6) the software architect who communicated with an intemational technical design team 
to understand system requirements, defined and analyzed objectives, and designed, developed and 
debugged software; (7) IT support who supported, monitored, tested and will troubleshoot hardware 
and software problems, install software, configure workstations and install upgrades, and provide 
technical assistance; (8) the graphics/data assistant who designed and altered screens on equipment 
and assisted with website updates; and (9) the part-time photographer who edited project videos, 
including instructional how-tos, and marketing. 
Upon review of the totality of the record, the director denied the petttton concluding that the 
petitioner failed to establish that the beneficiary will be employed in a primarily managerial or 
executive capacity. 
On appeal, counsel for the petitioner asserts the director's decision is in error. Counsel asserts that 70 
percent of the beneficiary's time is spent directing product development activities. Counsel notes that 
the beneficiary does not develop products or perform the daily tasks necessary to develop the product, 
but rather the beneficiary interacts with the petitioner's technical team. Counsel adds that the 
beneficiary does not perform the creative tasks necessary to bring a product to market but rather relies 
on the petitioner' s employees who work with ad agencies and producer's brand managers . Counsel 
concludes that the beneficiary will perform in a primarily executive position . Counsel also references 
the beneficiary's oversight of the petitioner's personnel and asserts that all of the petitioner's 
employees hold or are working toward degrees and that two-thirds of the degrees held by its 
employees are bachelor's degrees or higher. Counsel also references the beneficiary's involvement in 
engaging and terminating the work of contractors. Counsel concludes that the beneficiary's 
responsibilities in this area are consistent with the definition of a "personnel manager." Counsel 
concludes that the petitioner has provided sufficient documentation to establish by a preponderance of 
the evidence that the beneficiary will be employed in a primarily managerial or executive capacity. 
Analysis 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary will 
be employed in a primarily managerial or executive capacity. In examining the executive or 
managerial capacity of the beneficiary, USCIS will look first to the petitioner's 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.P.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 petitioner's 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. 
As the director observed, 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 
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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). 
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)(14)(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. 
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 does not claim that the beneficiary is primarily a function manager. 
The petitioner initially provided a broad overview of the beneficiary's duties. The petitioner indicated 
that the beneficiary would spend 70 percent of his time directing product development activities, 
including meeting with large producers and negotiating major contracts, duties that are not clearly 
defined and appear non-qualifying. The petitioner also indicated that directing product development 
activities included the beneficiary's interface with an international technical team and overseeing the 
adaption of an international concept for implementation in the United States. The petitioner, 
however, did not provide detail regarding the employment of the international technical team or 
describe the actual duties involved in the oversight of the adaptation of a product for the United 
States. Likewise, the petitioner did not describe the claimed development opportunities and did not 
provide evidence of employee(s) working with ad agencies. As the petitioner claimed that the 
beneficiary spent 70 percent of his time directing product development, and the initial description 
provided did not include detailed information of the actual duties involved in directing product 
development, the petitioner did not establish that the beneficiary will perform in either a managerial 
or executive capacity. 
In response to the director's RFE, the petitioner provided further detail regarding the beneficiary's 
actual duties for the petitioner. Again, the petitioner indicated that the beneficiary spends 70 percent 
of his time directing product development. The petitioner also listed the duties of the individuals 
subordinate to the beneficiary's position of president. Upon review, the petitioner described the 
beneficiary as the individual who conducts research on major producers , meets with producers, and 
conveys meeting outcomes to project managers for implementation. Although the petitioner 
indicated that the beneficiary meets with its employees regarding presentations to the producers, the 
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petitioner does not include information in its description of duties of the beneficiary's subordinates 
that supports a claim that other employees engage in preparing or making presentations. Similarly, 
the petitioner's indication that the beneficiary meets with the employee(s) who works with ad 
agencies and brand managers is not supported by a description of duties for a subordinate employee 
who performs these tasks. Although the petitioner employs a digital marketing manager, her duties 
involve web, social, and creative branding and the description of duties does not involve working 
with ad agencies. Accordingly, the additional information provided regarding these two general 
headings does not support the petitioner's claim that the beneficiary is performing primarily executive 
duties. The beneficiary's stated responsibility for negotiating contracts for components is also a duty 
that would be considered operational rather than managerial in nature. 
The petitioner also describes the beneficiary's duties interfacing with the international technical team 
as traveling and meeting with the unidentified individuals to listen to challenges, review customer 
information regarding the product, and find acceptable compromises between the technical team and 
customers and convey the compromise to the customers. The information provided in relation to 
interfacing with the international technical team is insufficient to establish that the beneficiary's role 
is directing the petitioner's management; rather it appears the beneficiary is the individual acting as a 
liaison between the product developer and customers. Likewise, the petitioner's indication that the 
beneficiary will prioritize development opportunities and oversee the adaption of the product for 
implementation in the United States does not include sufficient information to ascertain that it is the 
beneficiary who is directing the petitioner's management in this regard. 
Although the petitioner indicates the beneficiary devotes only ten percent of his time to preparing for 
and representing the petitioner at trade shows and visiting current and potential customers, these 
duties include the operational tasks of marketing and selling the petitioner's services. Such duties are 
non -qualifying. 
As observed above, the definition for executive capacity requires the organization to 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, the petitioner has not provided probative evidence that the 
beneficiary's role is to focus primarily on the petitioner's broad goals and policies, except in the most 
general way; rather the beneficiary is the individual who appears to work collaboratively between the 
foreign entity and the users of the foreign entity's product performing the actual daily operational 
tasks of the petitioner's consulting and trading business. 
On appeal, counsel also references the beneficiary's time spent directing and managing personnel and 
asserts that the beneficiary's duties are indicative of an individual who is also a personnel manager. 
However, the petitioner allocates only 20 percent of the beneficiary's time to managing personnel and 
thus, this is not the beneficiary's primary duty. Moreover, upon review of the expanded version of the 
petitioner's description of the beneficiary's duties managing personnel, it appears the beneficiary 
offers input and authorizes final decisions on hiring and firing employees. It is not clear from the 
description provided that the beneficiary is the individual who actually supervises the petitioner's 
technical or other employees. 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 
(b)(6)
Page 13 
Dec. 158,165 (Comm'r 1998) (citingMatterofTreasure CraftofCalifornia, 14 I&NDec. 190 (Reg. 
Comm'r 1972)). 
In summary, based on the record of proceeding, the beneficiary's job duties are principally composed 
of non-qualifying duties that preclude him from functioning in a primarily managerial or executive 
role. 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. Matter of 
Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988). The record does not 
include sufficient evidence to establish that the beneficiary primarily performs in the capacity of an 
executive or of a personnel manager as those terms are defined in the statute. 
We acknowledge counsel's concern that the director improperly considered the size of the petitioner 
and recognize that as required by section 101(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, users 
must take into account the reasonable needs of the organization, in light of the overall purpose and 
stage of development of the organization. To establish that the reasonable needs of the organization 
justify the beneficiary's job duties, the petitioner must specifically articulate why those needs are 
reasonable in light of its overall purpose and stage of development. In the present matter, the 
petitioner has not explained how the reasonable needs of the petitioning enterprise justify the 
beneficiary's performance of non-managerial or non-executive duties. Again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, supra. The petitioner in this matter has not provided 
sufficient probative evidence that the current reasonable needs of the petitioner require the services of 
a manager or executive as those terms are defined in the statute. Accordingly, the appeal will be 
dismissed. 
C. The Beneficiary's Qualifying Year of Employment Abroad 
Beyond the decision of the director, the record includes additional inconsistencies regarding the 
beneficiary's employment abroad. Not only does the record fail to provide consistent evidence 
regarding the beneficiary's work for a qualifying organization as discussed above, the beneficiary's 
Form G-325A, Biographical Information statement filed in conjunction with the beneficiary's Form 
I-485, Application to Register Permanent Residence or Adjust Status, also casts doubt on the 
beneficiary's one year of qualifying employment. The beneficiary specifies on the Form G-325A that 
he lived in Israel from 1958 to October 2004. This information is inconsistent with the petitioner's 
claim that the beneficiary was employed by the Italian company from 2001 until 2004. 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). Accordingly, the record does not include probative consistent 
evidence establishing the beneficiary's employment with the Italian company in one of the three years 
prior to his entry to admission to the United States in November 2004 as a nonimmigrant. For this 
additional reason, the petition may not be approved. 
(b)(6)
Page 14 
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), aff'd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
II. Prior Approval 
The AAO acknowledges that USCIS previously approved several L-1A nonimmigrant petitions filed 
on behalf of the beneficiary, a classification which also requires the petitioner to establish a 
qualifying relationship with the beneficiary's foreign employer and to establish the position as 
primarily managerial or executive. However, it must be noted 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-
1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; 
see also 8 C.P.R. § 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L-1A 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.P.R. § 103.2(b)(16)(ii). In the present 
matter, the director articulated the objective statutory and regulatory requirements and applied them 
to the matter at hand. If the previous nonimmigrant petitions were approved based on the same 
evidence of the qualifying relationship and managerial/executive capacity as submitted in this matter, 
the previous approvals 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. 
III. Conclusion 
The pet1t10n will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. 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. § 1361. Here the petitioner has not met that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.