dismissed EB-1C Case: Textile Manufacturing

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
Office: NEBRASKA SERVICE CENTER 
 Date: Z 8 2009 
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. 9 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). 
h& 
pohn F. Gri som 
Acting Chief, Administrative Appeals Office 
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 corporation incorporated in the State of North Carolina that claims to be in the 
business of textile manufacturing and distribution. The petitioner claimed to be an affiliate of the 
beneficiary's foreign employer, Kewalram Philippines Inc., a company located in the Philippines. It 
seeks to employ the beneficiary as its vice president and head of U.S. operations. 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. 5 1153(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, or will be employed by the United States entity, in a 
primarily managerial or executive capacity. The director noted that the petitioner had failed to 
provide material evidence that was requested following the filing of the Form 1-140, Petition for 
Immigrant Worker. 
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 contended that 
the director's decision is in error. In her brief, counsel endeavors to provide information that the 
petitioner failed to provide in response to the director's request for evidence and asserts that the 
beneficiary was employed in the foreign entity and will be employed by the U.S. entity in a 
managerial capacity. No additional evidence was submitted on appeal. 
Section 203(b) of the Act states in pertinent part: 
(1) 
 Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) 
 Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years 
preceding the time of the alien's application for classification 
and admission into the United States under this subparagraph, 
has been employed for at least 1 year by a firm or corporation 
or other legal entity or an affiliate or subsidiary thereof and 
who seeks to enter the United States in order to continue to 
render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives 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 furnish 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. 5 204.5(j)(5). 
The first issue in the present matter is whether the beneficiary will be employed in a primarily 
managerial or executive capacity by the United States entity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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. 5 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 fkom higher level 
executives, the board of directors, or stockholders of the organization. 
In a letter dated May 15, 2007 filed with the Form 1-140, Immigration Petition for Alien Worker, the 
petitioner's description of the beneficiary's position in the United States includes the following 
responsibilities: 
Establishing the goals and policies that will enable [the U.S. company] to become 
a major distribution and sales hub of [the parent company] 
Implement and administer [the company's] long-term business plan 
Analyze and review activities, costs, operations, and market data to determine 
progress toward [the company's] objectives 
Develop and direct the company's day-to-day functions at the highest corporate 
level 
Develop and direct the acquisition and management of new accounts, creation, 
planning and institution of distribution infrastructure, and growth and 
diversification of [the company's] market share 
Maintain compliance with legal issues regarding imports, interfacing with 
shareholders, bankers and related activities 
Develop and direct the implementation of systems and processes in the 
organization to support the business model and provide for continued growth 
Utilize his knowledge of the market and textile industry to strengthen [the] 
company's customer and market base 
Explore strategic alliances and relationships with end customers 
Evaluate opportunities into e-business distribution and sales of the parent 
company's textile products 
Exercise significant executive authority in overseeing the development of the 
[company] brand in the United States and identifying and exploiting opportunities 
for market penetration 
Manage the entire executive function of [the company's] United States operations 
Hire, fire and promote individuals commensurate with business needs 
Possess a wide range of executive discretionary decision-making authority, 
reporting directly to the [board of directors] as needed. 
The petitioner provided no description of its staff in the United States, although the Form 1-140 
indicated that the petitioner had three employees at the time the petition was filed. 
On March 19, 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 positions with his 
overseas employer and the U.S. entity: 
1. Job title and dates of employment 
2. A complete detailed description of the day to day duties to be performed 
including the percentage of time the beneficiary will spend performing each duty, 
and the amount of time spent supervision/managing subordinates. 
3. Number of staff supervised along with a brief description of the duties and 
educational degrees. 
4. A statement as to the beneficiary's immediate supervisor, including title, and level 
of authority. 
The director also requested organizational charts for both the foreign and U.S. entities showing the 
beneficiary's positions in relation to other employees in the companies. 
In a letter dated April 25, 2008 responding to the RFE, the petitioner stated that beneficiary "has 
been overseeing the import, acquisition, sales, and distribution operations of the U.S. company since 
he was transferred to the position pursuant to valid L-1A status in October 2002." The petitioner 
indicated that the beneficiary is the most senior executive of the U.S. company and reports directly 
to the board of directors. The petitioner added the following details relating to the beneficiary's job 
responsibilities: 
Responsible for the policy, planning and decision-making supporting [the U.S. 
company's] import, acquisition, distribution, and sales activities 
Directs and manages the sourcing through various direct and indirect channels to 
import varying shipments of textile, yarn, and other goods for distribution 
Directs and manages forwarder's [sic] . . . to receive the shipments, including 
managing the expeditious handling of customs procedures and deliver them . . . to 
the transport vendors for delivery to the proper warehouse 
Coordinates transfer [of yarn goods] to U.S. sales agents for retail distribution 
Has wide latitude in selection of all vendor companies with which [the U.S. 
company] conducts business 
Develops and manages relationships with vendor companies and can terminate 
and initiate business relationships with these companies at his sole discretion 
Establishes the sales targets, territories, and goals for growth for the entire U.S. 
operations 
Has wide discretion to develop pricing strategies and make changes to import, 
winding, and distribution activities 
With respect to other employees, the petitioner stated that the beneficiary has hired a full-time 
market research analyst "with a minimum of a Bachelor's Degree in Business Administration with a 
concentration in Marketing" to assist him with research in products, marketing strategies and pricing. 
The petitioner stated that the beneficiary also oversees two other employees - a full-time office 
manager with an associate degree, and a part-time clerk. No job descriptions were provided for the 
beneficiary's subordinates. The petitioner also reported that the beneficiary "supervises the work of 
20 to 30 professional staff and vendor personnel at all times." 
The petitioner submitted an organizational chart for the U.S. company which shows the beneficiary 
supervising the three staff positions described above. The chart also situates the beneficiary as the 
central hub among U.S. "sales agents", "forwarders", "warehouses", "winding operations" and 
"factoring insurance co." The corporate names of vendors and contractors are listed under each of 
these categories, but no detail was provided with regards to the contract or vendor personnel falling 
under the beneficiary's supervision, or the type of work performed. 
In response to the RFE, the petitioner also provided financial charts purportedly depicting the U.S. 
company's growth and profitability from 2003 through the time the petition was filed. The petitioner 
emphasized that the beneficiary "currently manages over $40 million in sales of textile, yarn and 
other goods each year." 
On June 27, 2008, the director denied the petition, concluding that the petitioner had not established 
that the beneficiary will be employed by the U.S. entity in a primarily managerial or executive 
capacity. The director noted that the petitioner failed to provide information requested in the RFE 
regarding the beneficiary's positions in both the foreign and U.S. entities, such as a detailed 
description of the beneficiary's day-to-day duties and the percentage of time spent on the duties, and 
a description of the duties and educational background of the staff. The director noted that there is a 
discrepancy between the petitioner's claim that the beneficiary supervises three employees and 
another claim that he "supervises the work of 20-30 professional staff and vendor personnel at all 
times." The director determined that the petitioner has not demonstrated that the beneficiary will be 
primarily supervising a subordinate staff of managerial, supervisory or professional employees who 
will relieve him from performing non-qualifying duties; that the petitioner has reached or will 
reached a level of organization complexity wherein the hiringlfiring of personnel, discretionary 
decision-making, and setting company goals and policies constitute a significant component of the 
duties performed on a day-to-day basis; or that the beneficiary primarily manages an essential 
hnction of the organization or operates at a senior level within the organizational hierarchy. 
On appeal, counsel asserts that the beneficiary is employed in an executivelmanagerial capacity by 
the U.S. entity. Counsel reiterates many of the beneficiary's job duties as described by the petitioner 
in its earlier letters and provides some of the company's sales figures to demonstrate the company's 
growth under the beneficiary's management since 2002. With respect to the beneficiary's 
subordinate staff, counsel explains that the beneficiary directly supervises three employees of the 
U.S. entity - the market research analyst, the office coordinator, and the office clerk - and offers 
brief descriptions of the duties of these employees. Counsel further states that in addition to these 
employees, the company outsources work to "numerous vendors and contractors" who are also 
supervised and managed by the beneficiary and who were "hired by [the U.S. company to relieve 
[the beneficiary] of performing non-executivelnon-managerial duties." Counsel claims that the 
beneficiary's role within the U.S. company is that of an executivelmanager, "with all day-to-day 
services of the company being performed by [the company's] internal employees and contract staff.." 
Counsel did not submit any additional evidence to support these claims. 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to 
establish that the beneficiary would be employed in the United States in a primarily executive or 
managerial capacity. 
At the outset, it is noted that the petitioner failed to submit relevant information requested in the 
RFE, including a detailed description of the beneficiary's day-to-day duties and the percentage of 
time spent on the duties, or information on the duties of the beneficiary's subordinate staff. This 
evidence is critical as it would have established whether the U.S. company actually has the staff to 
perform the day-to-day operations of the company, and the beneficiary actually occupies the 
managerial or executive position within the organization, with the corresponding job responsibilities, 
the petitioner claimed. 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. See 8 C.F.R. 5 103.2@)(8). 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@)(14). 
It is further noted that in her appeal brief, counsel attempts to provide some of the missing 
information regarding the beneficiary's subordinate staff. However, there is no evidence in the 
record to support counsel's claims regarding the U.S. company's employees and contractors. The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled 
to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Further, as previously noted, this information was 
requested in the RFE. Where a petitioner has been put on notice of a deficiency in the evidence and 
has been given an opportunity to respond to that deficiency, the AAO will not accept evidence 
offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also 
Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted 
evidence to be considered, it should have submitted the documents in response to the director's 
request for evidence. Id. Under the circumstances, the appeal will be adjudicated based on the 
record of proceeding that was before the director. 
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. 5 204.5(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. 
In this instance, the petitioner has provided a vague and nonspecific description of the beneficiary's 
duties that fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the 
petitioner states that the beneficiary's duties include "establishing the goals and policies that will 
enable [the U.S. company] to become a major distribution and sales hub of [the parent company]," 
"implement and administer [the company's] long-term business plan," "develop and direct the 
company's day-to-day functions at the highest corporate level," and "manage the entire executive 
function" of the company's U.S. operations. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient. The regulations require, and the director requested 
in the RFE, a detailed description of the beneficiary's daily job duties. The petitioner has failed to 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The 
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), af'd, 905 F.2d 41 (2d. Cir. 1990). 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. Id. 
Further, it is not clear whether the petitioner is claiming that the beneficiary is primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or executive duties under section 
101 (a)(44)(B) of the Act. Instead, the petitioner repeatedly asserted in the petition and in response to 
the RFE that the beneficiary functions in an "executive/managerial" capacity. On appeal, counsel 
also referred to the beneficiary's position as "executive/managerial." However, the descriptions of 
the beneficiary's duties that the petitioner provided are simply insufficient in detail to demonstrate 
that the criteria set forth in either of the statutory definitions have been met. 
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. 8 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 10 1 (a)(44)(A)(iv) of the Act. Here, although the petitioner 
asserts that the beneficiary is managing a subordinate staff, the record does not establish that the 
subordinate staff is composed of supervisory, professional, or managerial employees. See section 
1 0 1 (a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO 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. tj 1101(a)(32), states that "[tlhe 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." The term 
"profession" contemplates knowledge or learning, not merely skill, of an advanced type in a given 
field gained by a prolonged course of specialized instruction and study of at least baccalaureate 
level, which is a realistic prerequisite to entry into the particular field of endeavor. Matter of Sea, '19 
I&N Dec. 8 17 (Comrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 1 1 I&N 
Dec. 686 (D.D. 1966). Here, the petitioner claimed that the beneficiary directly supervises three in- 
house employees - a market research analyst, an office coordinator and an office clerk. However, 
the petitioner failed to provide any description of the job duties or requirements of the beneficiary's 
claimed subordinates. Without that information, the AAO cannot determine whether a bachelor's 
degree is required for any of these employees' positions, such that any of them would qualify as a 
"professional." Similarly, there is no evidence indicating that any of the beneficiary's subordinate 
employees function in a managerial or supervisory capacity. 
The AAO notes the petitioner's claim that the beneficiary supervises the work of vendor and 
contractor personnel. However, the record is devoid of evidence of the U.S. company's and the 
beneficiary's relationship with the alleged contractors, nor does it describe the nature of his 
interactions with the vendors and contractors. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Because the evidence does not establish that the beneficiary is 
primarily supervising a staff of professional, managerial or supervisory employees, the beneficiary 
cannot be deemed to be primarily acting in a managerial capacity. 
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 bction" 
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 function, 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. $ 
204.50)(5). Further, 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. 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 Intn %, 19 I&N Dec. 593, 604 (Comrn. 
1988). In this matter, the petitioner has neither claimed nor provided evidence that the beneficiary 
manages an essential function. 
Along with showing that the beneficiary performs the high-level responsibilities that are specified in 
the definitions of "executive capacity" and "managerial capacity," 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 his duties are "primarily" 
managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to 
document what proportion of the beneficiary's duties would be managerial functions and what 
proportion would be non-managerial. The petitioner lists the beneficiary's duties as including both 
managerial and administrative or operational tasks, but fails to quantify the time the beneficiary 
spends on them. This failure of documentation is important because several of the beneficiary's 
daily tasks, as discussed below, do not fall directly under traditional managerial duties as defined in 
the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily 
performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 
2d 22,24 (D.D.C. 1999). 
Moreover, in light of the lack of evidence regarding the staff of the U.S. entity, the AAO must 
question the extent to which the beneficiary is required to be directly perfonning rather than 
managing the non-qualifying day-to-day functions of the business. For example, the petitioner 
claimed that the beneficiary "directs and manages the sourcing . . . of textile, yarn, and other goods 
for distribution," directs and manages forwarders and transport vendors in receiving the shipments, 
handles customs procedures and delivery to the proper warehouse, "coordinates transfer [of goods] 
to U.S. sales agents for retail distribution," and "develops and manages relationships with vendor 
companies." 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 Intn 'I., 19 I&N Dec. at 604. In this instance, coordinating the sourcing, transportation 
and distribution of goods, without further explanation of the specific tasks involved, may fall into the 
category of "tasks necessary to produce a product or to provide services." Given the lack of 
information regarding the duties and responsibilities of the other employees of the U.S. company and 
other noted deficiencies in the record, the distribution of work within the company remains unclear. 
As such, the AAO is unable to determine whether the claimed managerial or executive duties 
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non- 
managerial administrative or operational duties. 
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has 
failed to establish that the beneficiary would be employed in a primarily executive or managerial 
capacity in the United States. For that reason, the petition will be denied. 
The second issue in this matter is whether the beneficiary was employed by the foreign entity in a 
primarily executive or managerial capacity. 
The petitioner claimed that from 1999 to 2002, the beneficiary was employed as the head of 
marketing of Kewalram Philippines, located in Manila, Philippines, of which the U.S. company is a 
wholly-owned subsidiary. In its May 15, 2007 letter, the petitioner described the beneficiary's 
position in the foreign entity as follows: 
[The beneficiary] oversaw the development and implementation of strategic textile 
product plans for the company, including objectives for product line growth in sales, 
product line pruning, new product development, competitive analysis, training, and 
market introduction. . . . 
[The beneficiary] was responsible for planning the development of new business and 
providing product strategic guidance. He authorized the institution of specific action 
plans that coordinate the strategies for all key functions required to ensure delivery 
Page 11 
down to product line profitability targets and provide ongoing market intelligence 
analysis that enables strategic foresight. 
[The beneficiary] also exercised a wide range of executive/managerial 
responsibilities, including the oversight of 10 employees. He provided leadership to 
the Marketing Department to facilitate achievement of both strategic and profit plan 
objectives in an optimum fashion. He further established and enforced measures for 
performance against delineated objectives. He also ensured sound organization and 
achievement of individual development in each employee's areas of responsibility. In 
this capacity, [the beneficiary] possessed the authority to hire and fire employees at 
his discretion. 
In its April 25, 2008 letter responding to the RFE, the petitioner added the following statement 
regarding the beneficiary's position with the foreign entity: 
As Marketing Head, [the beneficiary] managed and oversaw the development and 
implementation of strategic product plans for the company's line of synthetic spun 
yam and blended yarns, including several specific strategic initiatives for product line 
growth in sales, product line pruning, new product development, competitive 
analysis, training, and market introduction, among others. He managed, authorized, 
developed, and instituted specific action plans to ensure the company's delivery on 
product line profitability targets. 
[The beneficiary] led a team of ten professional employees in marketing research and 
development activities, with authority to hire and fire at his sole discretion. He 
instructed his staff of analysts and associates on which research areas to focus and 
reviewed reports and analysis they generated for development of marketing and 
business policies for the company. 
The petitioner failed to provide material information requested by the director relating to the 
beneficiary's position with the foreign entity, including a more detailed description of the 
beneficiary's job duties along with a breakdown by percentage of time spent on each duty, as well as 
descriptions of job duties and educational background of the beneficiary's subordinate employees in 
the foreign entity. The petitioner also failed to provide an organizational chart of the foreign entity 
showing the beneficiary's position within the corporate hierarchy, as requested.' 
In denying the petition, the director noted the petitioner's failure to provide the requested information 
relating to the beneficiary's job duties and subordinate staff abroad, as described above. The director 
found that based on the evidence furnished, it cannot be found that the beneficiary has been 
employed primarily in a qualifying managerial or executive capacity. 
1 
 While the director noted in his decision that "an organizational chart was submitted for both the U.S. and foreign 
entities," a thorough review of the record show that no organizational chart for the foreign entity was ever submitted by 
the petitioner or counsel. 
On appeal, counsel contends that the director incorrectly concluded that the record failed to establish 
that the beneficiary performed in a primarily executive or managerial capacity for the company 
abroad. Counsel reiterates the description of the beneficiary's position abroad previously provided 
by the petitioner. Counsel adds that the staff under the beneficiary's supervision included a 
Domestic Sales Manager, Sales Associates, Production Coordinators, Export Coordinators, and 
Import Assistants. Counsel briefly describes the responsibilities of these employees and provides a 
chart listing the beneficiary's duties and percentage of time spent on each duty. Counsel maintains 
that the majority of the beneficiary's time at the foreign entity was spent engaging in 
executive/managerial duties. Again, counsel submitted no evidence to support these claims. 
The AAO concurs with the director's conclusion that the petitioner has failed to establish that the 
beneficiary would be employed in the United States in a primarily executive or managerial capacity. 
As discussed above, the petitioner failed to submit relevant information requested in the RFE 
relating to the beneficiary's position abroad, including a detailed description of the day-to-day duties 
of the beneficiary and the percentage of time spent on the duties, or information on the duties of the 
beneficiary's subordinate staff. Again, this evidence is critical as it would have established whether 
the beneficiary actually occupied the managerial or executive position within the foreign entity, with 
the corresponding job responsibilities and the staff to perform the day-to-day operations of the 
company, as the petitioner claimed. Again, the failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2@)(14). 
It is further noted that in her appeal brief, counsel attempts to provide some of the missing 
information regarding the beneficiary's job duties and subordinate staff while employed by the 
foreign entity. However, there is no evidence in the record to support counsel's claims. The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled 
to any evidentiary weight. See INS v. Phinpathya, 464 U.S. at 188-1 89; Matter of Ramirez-Sanchez, 
17 I&N Dec. 503. Further, as previously noted, where a petitioner has been put on notice of a 
deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO 
will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 
764; see also Matter of Obaigbena, 19 I&N Dec. 533. If the petitioner had wanted the information 
counsel attempts to provide on appeal to be considered, it should have disclosed the information in 
response to the director's request for evidence. Id. Under the circumstances, the appeal will be 
adjudicated based on the record of proceeding that was before the director. 
Again, 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. 5 204.5(j)(5). Here, the petitioner 
has provided a vague and nonspecific description of the beneficiary's duties that fails to demonstrate 
what the beneficiary did on a day-to-day basis in his position with the foreign entity. Additionally, 
the petitioner provided no evidence that clarifies where the beneficiary stood within the corporate 
structure of the foreign company. The petitioner also failed to identify the beneficiary's subordinates 
or the work that they performed and that the beneficiary supposedly directed and evaluated. Again, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 165. Conclusory 
assertions regarding the beneficiary's employment capacity are not sufficient to meet the petitioner's 
burden of proof. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108. Without the 
requested detailed job description for the beneficiary and information regarding the beneficiary's 
subordinates within the foreign entity, the AAO cannot determine whether the beneficiary was 
indeed employed abroad in a managerial or executive capacity. Further, as previously noted, the 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. 8 103.2@)(14). 
In light of these deficiencies in the evidence, the AAO finds that the petitioner has failed to establish 
that the beneficiary was employed abroad in an executive or managerial capacity as required by 
section 203(b)(l)(C) of the Act, 8 U.S.C. 8 1153(b)(l)(C). For this additional reason, the petition 
will be denied. 
Finally, the AAO acknowledges that USCIS has previously approved multiple L-1A petitions filed 
by the petitioner on behalf of the instant beneficiary. It must be noted that many 1-140 immigrant 
petitions are denied after USCIS approves prior nonimmigrant 1-129 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; Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103. 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. CJ: $6 204 and 214 of the Act, 
8 U.S.C. $9 1154 and 1184; see also $316 of the Act, 8 U.S.C. 8 1427. Because USCIS spends less 
time reviewing I- 129 nonirnmigrant 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.F.R. 8 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L-1A petition's validity). 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. Based on the lack of required evidence of 
eligibility in the current record, the AAO finds that the director was justified in departing from the 
previous nonimmigrant petition approvals by denying the instant petition. 
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. 8 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.