dismissed EB-1C Case: Swimwear Wholesale

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-T- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 1, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an importer and wholesaler of swimwear, seeks to permanently employ the 
Beneficiary as its vice president under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) § 203(b )(1 )(C), 8 U.S.C. 
§ 1153(b )(1 )(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in an executive or managerial capacity. 
The Director, Nebraska Service Center, approved the petition but subsequently revoked the 
approval. The Director concluded that the Petitioner has not established that it intends to employ the 
Beneficiary in a qualifying managerial or executive capacity in the United States. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and asserts that 
the Director erred in his decision. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
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 the alien 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. 
Matter of S-T- Inc. 
The language of the statute is specific in limiting this provision only to those executives and managers 
who have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of 
that entity, and who are coming to the United States to work for the same entity, or its affiliate or 
subsidiary. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. The 
regulation at 8 C.F.R. § 204.5(j)(5) states: 
No labor certification is required for this classification; however, 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 letter must clearly describe the duties to be performed by 
the alien. 
II. MANAGERIAL OR EXECUTIVE CAP A CITY 
The only stated ground for denial is the Director's finding that the Petitioner has not established that it 
intends to employ the Beneficiary in a qualifying managerial or executive capacity in the United States. 
Section 101(a)(44) ofthe Act, 8 U.S.C. § 1101(a)(44), provides: 
(A) 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. 
2 
(b)(6)
Matter of S-T- Inc. 
(B) 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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, U.S. Citizenship 
and Immigration Services (USCIS) must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 101(a)(44)(C) ofthe Act. 
A. Facts 
The Petitioner filed Form I -140 on April 2, 2013. In a letter dated March 11, 20 13, 
identified as manager of the petitioning company, stated that the Beneficiary "regularly reports to the 
Board of Directors of the parent company and is responsible for its US subsidiary's overall operation 
and management activities." provided the following description of the Beneficiary's 
duties as vice president of the petitioning company: 
1. Directing and coordinating the activities of the subsidiary company; supervising the 
work of the staff and assign[ing] specific job duties; reporting the operation and 
management status to the parent company on a constant basis (15% of the time); 
2. Establishing various departments including Sale[ s] & Market Research Department 
and Accounting Department and Purchasing Department for the general operations 
of the subsidiary company (20% of the time); 
3. Recruiting, training and supervising staffs on the managerial level and direct[ing] the 
implementation of the company's policies and regulations and making evaluations 
on their respective performance (20% of the time); 
4. Supervising and overseeing all departments' daily operations, superintending 
purchasing and selling contracts and overseeing the business transactions of the 
subordinate[ s] (20% of the time); 
5. Reviewing market research and price analysis reports to determine [the] company's 
directions and fix short-term and long-term development plans; coordinating 
communications and business activities between U.S. subsidiary and China parent 
company (10% of the time); 
3 
(b)(6)
Matter of S- T- Inc. 
6. Developing strategies for market expansion in the U.S. and direct[ing] the 
implementation of the strategies with the help of the staff members; making 
financial arrangements and allocating funds, overseeing the utilization of funds to 
ensure maximum profit (15% of the time). 
stated that the Beneficiary's subordinates include "management level employees and 
professional support staff, such as Store Manager and Budget Analyst, as well [as] a sales department 
with four employees ." 
An 
organizational chart and a list of job titles showed the following information about the company: 
Accountant 
Vice President 
The Beneficiary 
I 
Store Manager 
Four Sales Representatives 
I 
Inventory Manager (Warehouse) 
Budget Analyst 
(Some of the names are misspelled on the chat1 and/or in the accompanying descriptions; the spellings 
in this decision derive from state-issued documents in the record.) The Petitioner indicated that the 
inventory manager's position requires a "Bachelor Degree in Business Administration, Supply Chain 
Management or relat[ed] field." The Petitioner did not specify any educational requirements for the 
other identified positions. 
Many of the Petitioner's documents referred to as manager, store manager, or general 
manager of the petitioning company, but a Fictitious Business Name Statement filed with the State of 
California identified as president of the petitioning entity. 
The Director issued a request for evidence (RFE) on November 9, 2013, asking the Petitioner to 
submit evidence showing that the Beneficiary ' s intended position qualifies as managerial or 
executive. In response , the Petitioner submitted new job descriptions for the Beneficiary and his 
subordinates. The Beneficiary's new job description, with the percentage of time devoted to each 
task, reads: 
• Directing and Managing the U.S. subsidiary company; supervising the work of 
department head and their subordinate staff; supervising and allocating goals and 
tasks in support of China parent company in fulfilling revenue increase; (20%) 
• Overseeing and managing company's financial budget and 
expenditure in support 
of the company goals and sustainability; supervising company's finance analyst 
4 
(b)(6)
Matter of S-T- Inc. 
and general manager in implementing parent company's international policies and 
reporting the management status to the parent company on a constant basis; 
establishing goals and policies in purchasing procedures, expenditure and budget, 
product volume analysis, outlets of the purchases and quality control procedure 
(20%) 
• Directing and managing the petitioning company's American marketing 
department (including sales to Mexico, Canada, South America and America) and 
warehouse department; (20%) 
• Establishing and supervising various departments based on the company's needs and 
adjust human structure to meet and satisfy the revenue increase through project 
marketing promotion (1 0%) 
• Recruiting, training and supervising staffs on the managerial level and direct[ing] the 
implementation of the company's policies and regulations and making evaluations 
on their respective performance (1 0%) 
• Supervising and overseeing all departments' daily operations; superintending 
purchasing 
and selling contracts and overseeing the business transactions of the 
subordinate[ s] (1 0% ); 
• Reviewing market research prepared by analysts and price analysis reports to 
determine [the] company's directions and fix short-term and long-term development 
plans; coordinating communications and business activities between U.S. subsidiary 
and China parent company; (5%) 
• Developing strategies for market expansion in the U.S. and direct[ing] the 
implementation of the strategies with the help of the staff members; making 
financial arrangements and allocating funds, overseeing the utilization of funds to 
ensure maximum profit. Authority to hire and fire or recommend person[ nel] 
actions of procure[ment] department; Authority with President to hire and fire or 
recommend person[ nel] action of other department[ s] of the petitioning company. 
(5%). 
An updated employee list showed 12 employees, five of whom were hired after the petition's filing 
date. A new organizational chart largely, but not entirely, agreed with the list: 
The Beneficiary 
(no title specified) 
Store Manager -----+------Budget Analyst 
Marketing Department Head Warehouse Department Head 
1----------Product Manager 
Market Manager Warehouse Manager 
5 
(b)(6)
Matter ofS-T-Inc . 
Market Specialists 
2-3 Full Time 
2-4 Part Time others vacant) 
Warehouse Specialists 
(Second position vacant) 
EDD Forms DE 9, Quarterly Contribution Returns and Reports of Wages, show the following salary 
payments to the Petitioner 's employees 
in 2013: 
Name Quarter 1 Quarter 2 Quarter 3 Quarter 4 Total 
$37,500.00 $37,500.00 $37,500.00 $21,000.00 $133,500.00 
The Beneficiary 10,500.00 10,500.00 10,500.00 10,500.00 42,000.00 
1,908.00 1,908.00 
384.00 384.00 
544.00 544.00 
2,940.93 4,308.36 4,807.75 303.67 12,360.71 
2,569.92 2,569.92 
634.00 4,535.03 4,850.00 4,665.00 14,684.03 
2,996.75 1,886.34 4,883.09 
350.00 350.00 
2,000.00 2,000.00 
906.60 1,038.36 1,944.96 
1,171.73 1,474.27 2,646.00 
987.33 
987.33 
4,779.50 4,982.00 4,712.84 14,474.34 
1,000.00 1,000.00 
3,188.00 5,038.08 4,900.63 13,126.71 
2,392.93 2,392.93 
The Petitioner stated that all of its then-current employees worked full time except for listed as 
"Part Time," and listed as "F/P Time." 
The Director approved the petition on May 15, 2014, but subsequently concluded that the approval had 
been in error. On August 21 , 2014, the Director issued a notice of intent to revoke (NOIR), stating: 
[T]he staffmg of the U.S. entity appears to be insufficient to relieve the beneficiary . .. 
from primarily performing non-qualifying operational tasks. The majority of the small 
staff of the U.S. entity appears to be employed part-time. The record contains no 
evidence to establish that the U.S. entity requires the employment of professionals, or 
that the majority of staff supervised by the beneficiary are also supervisory or 
managerial. 
In response, the Petitioner stated that only two of its 13 employees work part-time, and that its "four 
levels of subordinat[e] staff ' are sufficient to "allow the Beneficiary to primarily perform qualifying 
duties in a managerial and executive capacity." The Petitioner also contended that "the company has 
and continues to require the services of professionals and that the majority of staff supervised by the 
(b)(6)
Matter of S- T- Inc. 
Beneficiary are also supervisory or has managerial capacities" (emphasis in original), and the 
Petitioner resubmitted the position descriptions for the Beneficiary and her subordinates. The Petitioner 
asserted that the complexity of the duties of a given position can qualifY the position as professional, but 
the Petitioner did not explain how any of the subordinates' duties qualified in this way. 
The Director revoked the approval of the petition on May 13, 2015, concluding that the Petitioner 
had not established that the Beneficiary would serve in a qualifying managerial or executive 
capacity. The Director noted that the Petitioner submitted two sets of job descriptions and two 
organizational charts, each showing significant revisions in response to the RFE. The Director stated 
that the Petitioner must establish eligibility as of the petition's filing date, and that the subsequent 
expansion and reorganization of the company cannot retroactively qualifY the Beneficiary for the 
classification sought. 
The Director noted that, according to the original organizational chart, only one employee, the store 
manager, directly reports to the Beneficiary. The Director found that the store manager's job 
description did not establish that the store manager "relieves the beneficiary from performing non­
qualifying operational tasks." The Director also observed that, while the Petitioner has identified 
as the store manager, salary is more than triple the Beneficiary's salary, 
and she identified herself as the company's president on the Fictitious Business Name Statement. 
The Director further stated that, as of the petition's filing date, only the Beneficiary and 
"received compensation commensurate with full-time employment." The Director concluded that "it 
appears more likely than not that the beneficiary is primarily employed as a first-line supervisor and 
performs the tasks necessary to produce a product or to provide a service." 
On appeal, the Petitioner submits an appellate brief and several supporting exhibits, some of which 
duplicate prior submissions. 
B. Analysis 
Upon review, and for the reasons stated below, we find that the Petitioner did not establish that the 
Beneficiary's proposed position with the 
petitioning entity meets the requirements of a managerial or 
executive capacity. 
The issue to be addressed is whether the Petitioner provided sufficient evidence to establish that it 
seeks to employ the Beneficiary in a qualifying managerial or executive capacity. In general, when 
examining the executive or managerial capacity of a given position, we review the totality of the 
record, including the description of the beneficiary's proposed job duties with the petitioning entity. 
See 8 C.F.R. § 204.5G)(5). Published case law has determined that the duties themselves will reveal 
the true nature ofthe beneficiary's employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). We also consider the beneficiary's job 
description in the context of the petitioner's organizational structure, the duties of the beneficiary's 
subordinates, and any other relevant factors that may contribute to a comprehensive understanding of 
the beneficiary's actual duties and role within the petitioning entity. 
(b)(6)
Matter of S- T- Inc. 
In addition, while performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify the beneficiary as long as those tasks are not the majority of the 
beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary IS 
"primarily" performing managerial or executive duties. See section 101(a)(44) ofthe Act. 
The Petitioner's staffing is a significant issue in this proceeding. Beyond the required description of 
the job duties, we review the totality of the record when examining the claimed managerial or 
executive capacity of a given 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. 
The Petitioner, on appeal, correctly asserts that the size of the petitioning company is not sufficient 
grounds to deny a petition or revoke its approval. The Director, however, did not revoke the 
approval of the petition simply because of the Petitioner's small size. Rather, the Director took the 
Petitioner's staffing levels into account along with other factors, which section 101(a)(44)(C) of the 
Act specifically permits. 
An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time 
of filing the benefit request. 8 C.P.R. § 103.2(b)(l). Therefore, subsequent events cannot cause a 
previously ineligible alien to become eligible after the filing date. See Matter of Katigbak, 14 I&N 
Dec. 45,49 (Reg'l Comm'r 1971). A petitioner may not make material changes to a petition that has 
already been filed in an effort to make an apparently deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). Therefore, the 
company's subsequent growth cannot overcome deficiencies that existed at the time of filing. 
The Petitioner, on appeal, states that the Beneficiary "currently oversees the work of five (5) 
professional full-time employees ... [who] hold Bachelor and Masters degrees." The Petitioner lists 
these employees on appeal, with their respective titles and degrees held: 
General Manager 
Merchandiser Specialist 
Director of Marketing 
Warehousing Specialist 
Marketing Specialist 
Bachelor 
Master 
Bachelor 
Bachelor 
Bachelor 
Three of the five named employees were hired after the petition's filing date; their names and titles 
did not appear on the original organizational chart or employee list. was a sales and 
customer service representative at the time of filing, later promoted to the position of director of 
marketing (a position not shown on the original organizational chart). Positions that did not exist at 
the time of filing cannot establish that the petition was approvable when filed. The Petitioner 
initially identified only one title as professional, specifically inventory 
manager 
Matter of S-T- Inc. 
which, the Petitioner stated, requires a "Bachelor Degree in Business Administration, Supply Chain 
Management or relat[ ed] field." 
In evaluating whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers 
in elementary or secondary schools, colleges, academies, or seminaries." Therefore, we must focus 
on the level of education required by the position, rather than the degree held by subordinate 
employee. The possession of a bachelor's degree by a subordinate employee does not automatically 
lead to the conclusion that an employee is employed in a professional capacity as that term is defined 
above. 
Here, the Petitioner has not established that a bachelor's degree is actually necessary to perform the 
work of the three positions that the Petitioner has, at various times, described as professional. The 
Petitioner's initial submission included the following descriptions: 
Manager (also called Store Manager) 
• Responsible for the over all business operation and management, organize and 
implement the resolutions of the board of directors; 
• Work out the annual financial, business operation and investment plan; 
• Be in charge of business routine and administrative management; 
• Request the board of directors to appoint or dismiss the deputy general 
managers, financial officer and other senior executive personnel; 
• Decide the rewarding, promotion, punishment, appointment, dismissal of all 
employees; 
• Draw up the basic and general management systems and work out the specific 
regulations and rule; 
• Draw up the intra-organizational structure solutions; 
• Other authorities permitted by the Articles of Associations and Board of 
Directors or any other matters authorized by chairman of board of directors; 
• Report to the Vice-President directly. 
Inventory Manager 
• Confer with department supervisors or other personnel to assess progress and 
discuss needed changes. 
• Examine documents, materials, or products and monitor work processes to 
assess completeness, accuracy, and conformance to standards and 
specifications. 
• Review documents, such as production schedules, work orders, or staffing 
tables, to determine personnel or materials requirements or material priorities. 
9 
(b)(6)
Matter of S- T- Inc . 
• Confer with establishment personnel, vendors, or customers to coordinate 
production or shipping activities and to resolve complaints or eliminate 
delays. 
• Requisition and maintain inventories of materials or supplies necessary to 
meet production demands. 
• Revise production schedules when required due to design changes, labor or 
material shortages, backlogs, or other intenuptions , collaborating with 
management, marketing, sales, production, or engineering. 
• Distribute production schedules or work orders to departments. 
• Anange for delivery, assembly, or distribution of supplies or parts to expedite 
flow of materials and meet production schedules. 
• Record production data, including volume produced[,] consumption of raw 
materials, or quality control measures. 
• Contact suppliers to verify shipment details. 
• Maintain files, such as maintenance records, bills of lading, or cost reports. 
• Compile information, such as production rates and progress, materials 
inventories, materials used, or customer information, so that status reports can 
be completed. 
In the RFE response, title had changed, but not the specifics of her job description. 
Both versions of that job description refer to "deputy general managers" and a "financial officer," 
but those positions do not appear in the Petitioner's organizational charts. The accuracy of the job 
description, therefore, is in doubt. Furthermore, as previously noted, earns 
substantially more than the Beneficiary and she described herself as "president" on a document that 
was not originally executed as part of this petition. These facts call into question the claim that 
is the Beneficiary' s subordinate, rather than the other way around. Doubt cast on any aspect 
of the petitioner's proof may 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. 582, 591 (BIA 1988). It 
is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent 
objective evidence pointing to where the truth, in fact, lies, will not suffice. !d. at 582, 591-92. 
The Petitioner does not directly address the Director's observation that called herself 
"president" of the petitioning company, or that her salary is substantially higher than the 
Beneficiary' s. The Petitioner indirectly addresses these issues with the statement: 
holds the position of Store and General Manager for the Petitioner. Her annual base salary is $1 ,500 
per week with commissions." These assertions do not resolve the issue that the Director raised. 
Even disregarding commissions, a base salary of $1,500 per week is at least $78,000 per year, nearly 
twice the Beneficiary 's $42,000 salary. This disparity does not readily suggest that IS 
truly the Beneficiary 's subordinate. 
The Petitioner did not explain how the inventory manager's position requires a bachelor's degree or 
qualifies as managerial. Some duties are clearly administrative rather than managerial, such as 
10 
(b)(6)
Matter of S-T- Inc. 
maintaining files and records. The job description indicates that the inventory manager must 
"[a ]rrange for ... assembly ... of supplies or parts," but the record does not identify any subordinate 
staff that would perform this assembly, or specify what sort of assembly would be taking place. The 
Petitioner does not manufacture products. Rather, it markets products manufactured abroad. For the 
above reasons, the Petitioner has not shown that the general manager or inventory manager positions 
are or were professional, as the Petitioner claims on appeal. 
The RFE response included the following description for position as "Head of Marketing 
Department": 
• Work under the direct supervision of General Manager; 
• Responsible for leading the whole team increasing sales volume; 
• Supervise team member[ s] in conduct[ing] customer service and after service. 
• Establish marketing strategies and implement policies set forth by general 
manager and vice president 
• Coordinate with budget analyst in revenue projection and marketing strategies 
• Leading the team to present and sell company 
products and services to current 
and potential clients[.] Prepare action plans and schedules to identify specific 
targets and to project the number of contacts to be made. 
• Follow up on new leads and referrals resulting from field activity. 
• Train team members [to] identify sales prospects and contact these and other 
accounts as assigned. 
• Oversee and monitor marketing presentations, proposals and sales contracts. 
• Train team member[ s] in developing and maintenance of sales materials and 
current product knowledge. 
• Lead the team to establish and maintain current client and potential client 
relationships. 
• Oversee and monitor account services 
• Communicate new product and service opportunities, special developments, 
information, or feedback gathered through field activity to appropriate 
company staff. 
• As a high-profile marketing professional, a head of marketing and sales needs 
to work closely with creative professionals in the marketing or advertising 
departments to come up with descriptions, images, and slogans for a 
company's clothes. 
The Petitioner now claims that the marketing manager position is professional, and that 
holds a bachelor's degree. In the employee list submitted in response to the RFE, however, the 
Petitioner stated that had a high school education. The appeal includes no evidence of the 
newly claimed bachelor's degree. 
Many of the listed duties are general in nature, and appear to derive from third-party templates. In 
particular, the last element in the above list is worded not as a specific job duty, but as generic 
advice to marketing directors. It refers to an "advertising department" which the Petitioner does not 
11 
Matter of S-T- Inc. 
have, and the reference to "a company's clothes" indicates that the writer of the passage had no 
particular company in mind. 
For the above reasons, the Petitioner has not established that the Beneficiary supervised 
professionals at the time of filing. 
We tum now to the Beneficiary's own position. We note that the definitions of executive and 
managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the 
high level responsibilities that are specified in the definitions. Second, the petitioner must prove that 
the beneficiary primarily performs these specified responsibilities and does not spend a majority of 
his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 
WL 144470 (9th Cir. July 30, 1991). Therefore, it is not sufficient to establish that the Beneficiary 
exercises a degree of discretionary authority over subordinates or the company as a whole 
In the notice of revocation, the Director stated: "8 C.F.R. § 204.50)(5) expressly requires that the 
beneficiary's employment be described in detail at the time the petition is filed." On appeal, the 
Petitioner states that the Director's assertion "is erroneous" because the cited regulation only 
requires each petitioner to "clearly describe the duties to be performed by the [beneficiary]." The 
Petitioner is correct that the word "detail" does not appear in the regulation, but case law, which the 
Director cited, interpolates a call for detail into the requirement that a given petitioner must "clearly 
describe the duties." Specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The 
Petitioner does not explain how it could "clearly describe" the Beneficiary's duties in the absence of 
"detail." 
The appellate brief supplements the Beneficiary's previously submitted job descriptions with 
additional duties. Space does not permit reproduction of the entire four-page list, but examples, 
from each of three broad categories, appear below: 
SALES LEADERSHIP, STRATEGY & OPERATIONS 
• Overseeing and directing all [the Petitioner's] operations 
• Establishing the [Petitioner's] brand 
• Guiding the marketing team in creating marketing strategies and materials 
PEOPLE LEADERSHIP 
• Directing the day-to-day activities of the marketing team 
• Overseeing the General Manager in recruiting, hiring, training and motivating 
staff, and participating in the selection and hiring of other departmental staff 
as needed 
12 
(b)(6)
Matter of S-T- Inc. 
FINANCIAL 
• Developing, implementing and administering the annual marketing budget 
• Providing input in developing sales force forecasting and compensation plans 
• Establishing goals, strategies and policies of Petitioner's funding and 
financing processes in order to promote the Petitioner's brand 
The additions to the job description do not show how much time the Beneficiary devotes to each of 
these tasks. Furthermore, the Petitioner has not attested to the new list of duties; it appears only in a 
brief prepared and signed by counsel. The assertions of counsel do not constitute evidence. Matter 
of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
In addition, the various job descriptions appear to diffuse or duplicate certain functions. For 
example, the Petitioner has claimed that the marketing director "[c]oordinate[s] with [the] budget 
analyst in revenue projection and marketing strategies," and the Beneficiary "[g]uid[ es] the 
marketing team in creating marketing strategies and materials" and "work[ s] closely with the 
marketing team to establish and maintain strategies and objectives." The appellate brief indicates 
that the Beneficiary "[d]irect[s] the day-to-day activities of the marketing team" and "[l]ead[s] and 
coach[ es] the marketing team," but an earlier description indicated that the head of the marketing 
department "[w]ork[s] under the direct supervision of [the] General Manager." In this way, the 
Petitioner has indicated that three marketing specialists (the number identified in the RFE response) 
had four levels of direct supervision, specifically the "Market Manager," "Head of Marketing 
Department," "General Manager," and "Vice President." 
The two earlier descriptions of the Beneficiary 's position are more generally consistent in terms of 
wording, but discrepancies remain. The Petitioner originally asserted that the Beneficiary devoted 
15 percent of his time to "Developing strategies for market expansion in the U.S. and direct[ing] the 
implementation of the strategies with the help of the staff members; making financial arrangements 
and allocating funds, overseeing the utilization of funds to ensure maximum profit." In response to 
the RFE, the time spent on this same duty shrank to five percent, grouped together with unrelated 
clauses relating to hiring authority: "Authority to hire and fire or recommend person[ne1] actions of 
procure[ment] department; Authority with President to hire and fire or recommend person[nel] action of 
other department[s] of the petitioning company." This added portion refers to a procurement 
department and a president, neither of which appear on the Petitioner's organizational charts. If there is 
a president, then this would be consistent with self-identification with that title; if there is 
no president, then the reference to such a person undermines the accuracy of the job description. 
For the reasons discussed above, we find that the Petitioner has not presented a consistent, accurate, and 
reliable description of the Beneficiary's role with the petitioning U.S. employer. The Petitioner has not 
met its burden of proof to establish that the Beneficiary's intended position qualifies as managerial or 
executive. 
Accordingly , we find that the Petitioner did not provide reliable, probative evidence sufficient to 
establish that the Beneficiary will be employed in the United States in a qualifying managerial or 
13 
Matter of S-T- Inc. 
executive capacity. For this reason, USCIS cannot approve this petition, and the Director properly 
revoked the approval. 
III. CONCLUSION 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not 
met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-T- Inc., ID# 15703 (AAO Mar. 1, 2016) 
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