dismissed EB-1C Case: Wholesale Foods

(b)(6)
DATE: 
JUN 0 4 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrativ e Appeals O
ffice (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE : 
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, 
l/LL 
J(..Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The Director, Texas 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 U.S. petitioner is a company incorporated in Delaware in 1989. The petitioner states on the 
Form I-140, Immigrant Petition for Alien Worker, that its type of business is "wholesale foods." The 
petitioner indicates that it employs nine personnel, and reported a gross annual income of 
$11,000,000 when the petition was filed. It seeks to employ the beneficiary as its marketing 
manager. 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 November 20, 2012, the director denied the petition 
determining that the petitioner failed to 
establish 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 in that the evidence establishes the beneficiary's eligibility for the requested 
classification. 
I. The Law 
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 
(b)(6)
Page 3 
petformed by the alien. The language of the statute is specific in limiting this provision to only 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. 
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--
(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. 
(b)(6)
Page4 
II. The Issue on Appeal 
The issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that 
the beneficiary will be employed in a primarily managerial or executive capacity. 
With regard to the proffered position, the petitioner initially provided a list of "Principal 
Accountabilities" for its marketing manager as follows: 
1. Assist in developing and managing the Trade Activity for the various Customers 
and Customer Segments. 
a. Restaurant depot - meetings and packaging development e.g. vegetable spring 
rolls (HK and US) 
2. Manage the various aspects of Marketing Materials (i.e. Brochures, Marketing 
Communications, Advertising, etc.). 
a. Brochure, new product e.g. Entree print etc. from concept to photo taking to 
printing 
3. Assist in the on-going product renovation projects. 
a. Shaomai packaging change, crispy spring roll 
4. Develop and manage the criteria for our current and future Co-packers, including 
new product development and Food Safety Programs. 
a. Set up system and keep tracking on record and compliance 
b. Development 
5. Work with the Sales Team to develop new product ranges and product line 
extensions within our current categories. 
a. Understand the market 
b. Assist 
6. The position will be the bridge between [the petitioner] and related to 
the utilization of the HK Marketing and Artwork Departments. [The petitioner] 
can benefit by utilizing some of the experience within our own Company. 
7. Technical Support-The position will support the Sales Team in the pursuit of Key 
Accounts, by providing product and Marketing support. There will be particular 
emphasis on the National Key Account Segment. 
a. Understand the market 
b. Assist business development in San Francisco 
8. Sales Responsibility- To be determined. Ideally, the Marketing Manager position 
will manage one or two markets. The responsibilities will include managing the 
broker sales team, developing the strategy for the particular market(s), manage the 
A 7P for the market( s) and train/work with the broker sales personnel. This area of 
responsibility is designed to provide the Marketing Manager position with 
exposure and experience related to market and broker management. 
Upon review of the limited evidence in the record, the director issued a request for evidence (RFE) 
instmcting the petitioner to submit additional evidence establishing that the beneficiary will be 
employed in a managerial or executive capacity with the U.S. company. 
(b)(6)
Page 5 
In an October 12, 2012 letter in response, the petitioner indicated that the beneficiary had worked for 
the petitioner since September 2009 and that she cmTently holds the position of senior marketing 
manager. 1 The petitioner noted that the beneficiary's responsibilities since that time are as follows: 
• [The beneficiary] has full responsibility for all Marketing and Trade Promotion 
activity of the company, reporting directly to the President/CEO. 
• She has responsibility for managing the [petitioner's] Regional Manager Team, 
which consists of 4 individuals, in all areas related to Marketing and Trade 
Promotion Activity. She is responsible for overseeing, coaching, evaluating and 
managing the Regional Manager's planning and execution of said plans. The 
Regional Managers are responsible for managing our Sales and Marketing 
organizations in the top 30 U.S. markets. [The beneficiary] has the authority to 
recommend the hiring or termination of the Regional Team members as part of her 
responsibility. These responsibilities account for approximately 55% of her time. 
• She directly manages our broker sales team for the Hawaii market, which includes 
the hiring and firing of this sales organization if necessary. The Hawaii broker 
organization consists of 6 employees who are responsible for all sales and 
marketing activities in the Hawaii market. The Hawaii market accounts for 
approximately 25% of her time. 
• [The beneficiary] has responsibility for creating the Annual 
Marketing Plan for the 
North America Market. The plan includes the Sales direction, product focus 
including new product development and Trade activity. This activity accounts for 
approximately 10% of her time. 
• She is directly responsible for all new product development and food safety, 
overseeing those activities within the various manufacturing locations. This 
accounts for approximately 10% of her time. 
The petitioner also included its organizational chart depicting the beneficiary as repmting directly to 
the president/CEO and supervising four regional managers. The petitioner provided copies of its 
2011 Internal Revenue Service (IRS) Forms W-2, Wage and Tax Statement for three of the' four 
individuals listed on the organizational chart as regional managers. 
Upon review of the totality of the record, the director denied the petition concluding that the 
petitioner failed to establish that the beneficiary would be employed in a primarily managerial or 
0 • 0 2 
executive capacity. 
On appeal, counsel for the petitioner asserts the director's decision is in error. Counsel notes that the 
beneficiary is employed as the petitioner's senior marketing manager. Counsel contends that the sales 
and marketing department is the petitioner's most important component as it is in the business of 
distributing food products from its parent company in Hong Kong to U.S. distributors. Counsel 
reiterates that the beneficiary has complete control of this department and answers only to the 
1 
The petitioner did not explain the difference in the job title for the proffered position. 
2 The director's decision includes what appears to be a typographical error in the initial paragraph referencing 
the proffered position as that of a "restaurant" manager. The error does not impact the director's analysis of the 
evidence in this matter and thus is harmless. 
(b)(6)
Page 6 
petitioner's president/CEO. Counsel repeats the initial description of the beneficiary's duties and 
asserts that the beneficiary is responsible for the oversight and management of four direct 
subordinates. Counsel avers that the beneficiary has the authority to hire, fire, promote or demote any 
of the four regional managers she supervises. Counsel asserts that the beneficiary provides 
instructions to the regional managers to facilitate the resolution of customer problems, she approves 
special orders, customers' return/exchanges, and she authorizes customer incentives. Counsel further 
contends that the four regional manager positions are professional positions whose duties are 
primarily managerial. The petitioner provides a statement indicating that three of the regional 
managers hold bachelor's degrees and that one holds an associate's degree. The petitioner states that 
the regional managers were hired because of their advanced education and extensive food service 
management experience. 
The petitioner also provides a job description for its regional sales manager position, the position 
subordinate to the beneficiary's position. The job description outlines the regional sales managers' 
duties as managing the broker sales team personnel for the specific market, regularly visiting each 
geographic market to include ongoing sales and marketing training related to the petitioner's product 
portfolio, developing and maintaining relationships with regional and national accounts, working with 
the broker sales teams to develop and secure new operator accounts, and provide support in the areas 
of product knowledge along with menu and recipe application. Counsel explains that the 
beneficiary's four subordinates are assigned to four specific regions in the United States and that each 
regional manager oversees approximately six different broker sales teams within their region. 
Counsel asserts that each of these broker sales teams comprise ten to thirty or more members and thus 
the beneficiary is overseeing the work of hundreds of people by directly managing the four regional 
managers. The record includes a list of accounts for each of the regional sales managers and the sales 
structure for two of the listed accounts. 
Counsel further asserts that the director placed undue emphasis on the size of the petitioner's 
organization. Counsel references section 101(a)(44)(C) of the Act requiring United States 
Citizenship and Immigration Services (USCIS) to take into account the reasonable needs of the 
organization, component, or function in light of the overall purpose and stage of development of the 
organization, component, or function. Counsel also cited two unpublished decisions in support of his 
assertion that the director did not properly consider these factors. 
III. Analysis 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary 
would 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 
3 Counsel states that the petitioner is a relatively new business having incorporated in 2009 for the purpose of 
distributing food products manufactured by the parent company. However, the record includes the petitioner's 
Articles of Incorporation initially filed in June 1989, a Certificate of Amendment dated July 9, 1990, and a 
second Certificate of Amendment dated November 24, 1992. The record also includes a copy of a stock 
certificate issued to the petitioner's parent company in 2009 for 100 shares. There is no evidence establishing 
who holds the petitioner's remaining shares, if any are outstanding. The record does not provide information 
regarding the petitioner's business prior to 2009. 
(b)(6)
Page 7 
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.F.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 
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 
petitioner in this matter identifies the proffered position as primarily a managerial position. 
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 lOl(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 term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(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.P.R. § 204.5U)(5). 
In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the 
beneficiary manages the function rather than performs the duties related to the function. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is 
not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 1988)). 
The petitioner initially provided a broad overview of the beneficiary's duties. The job description 
focused on the beneficiary's performance of certain tasks, such as assisting in the development and 
management of the trade activity on various customer accounts, as well as managing marketing 
(b)(6)
Page 8 
materials and assisting in the renovation of packaging. The petitioner noted that the beneficiary 
would be a bridge between the petitioner and foreign entity's marketing and artwork departments. 
The petitioner's initial description identified the beneficiary's relationship with the sales team as 
"technical support" indicating that she would work with the sales team to develop new product ranges 
and product lines. The petitioner further indicated that "ideally the beneficiary would be responsible 
for managing one or two particular markets and training and working with broker sales personnel." 
The petitioner did not identify the beneficiary's position as a supervisory or personnel managerial 
position in its initial job description focusing instead on the beneficiary's performance of operational 
tasks. 
For example, providing technical support to the petitioner's sales team is not indicative of an individual 
managing or supervising the petitioner's sales team; rather it appears that the beneficiary would be 
providing some sort of administrative or technical support. In addition, stating that the beneficiary 
ideally would also manage broker sales personnel in a particular market is insufficient to establish that 
the tasks associated with such a duty is a managerial or supervisory task. The petitioner does not identify 
the broker sales personnel and does not indicate that these individuals are employed by the petitioner or 
are otherwise contractually bound to the petitioner. Rather, it appears that the broker sales personnel are 
clients who distribute the petitioner's products. The record does not include documentary evidence 
establishing that these clients are subject tO the petitioner's control. 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)). At most, the broker sales personnel 
appear to be part of organizations which enjoy an arm's length relationship with the petitioner. 
Moreover, the petitioner has not explained how the services of the broker sales personnel or 
organizations obviate the need for the beneficiary to primarily conduct the operations of the petitioner's 
food product distribution business. 
In response to the director's RFE, the petitioner amended the beneficiary's previous job description and 
job title. The petitioner referred to the beneficiary's position as that of a "senior marketing manager" not 
the heretofore marketing manager. It is incumbent upon the petitioner to resolve any inconsistencies 
in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner noted that 
the beneficiary would spend 55 percent of her time managing the petitioner's four regional managers. 
The petitioner indicated that the beneficiary would spend an additional 25 percent of her time directly 
managing the broker sales team for the Hawaii market. The petitioner allocated only 20 percent of the 
beneficiary's time to creating a marketing plan and overseeing activities within various manufacturing 
locations for product development and food safety. In sum, the initial description appeared to have the 
beneficiary doing more of the actual work, while the second iteration of the job has the beneficiary in 
a senior marketing manager position and primarily (55 percent) managing the four regional managers 
in the petitioner's operation. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility 
for the benefit sought has been established. 8 C.P.R. § 103.2(b)(8). When 
responding to a request for 
evidence, a petitioner cannot offer anew position to the beneficiary, or materially change a position's 
title, its level of authority within the organizational hierarchy, or its associated job responsibilities. 
(b)(6)
Page 9 
The petitioner must establish that the position offered to the beneficiary when the petition was filed 
merits classification as a managerial or executive position. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248, 249 (Reg. Comm'r 1978). If significant changes are made to the initial request for 
approval, the petitioner must file a new petition rather than seek approval of a petition that is not 
supported by the facts in the record. The information provided by the petitioner in its response to the 
director's request for further evidence did not clarify or provide more specificity to the original duties 
of the position , but rather added new generic duties to the job description . 
However, even if considering the revised position description, the beneficiary's direct sales duties related 
to the management of the Hawaii accounts are non-qualifying duties as discussed above. The petitioner 
has not explained how the management of particular accounts of unrelated personnel or organizations 
constitutes a managerial or supervisory duty. The beneficiary's tasks identified as relating to marketing 
(brochures, advertising, packaging and utilizing the foreign entity's marketing and artwork departments) 
are also non-qualifying as the petitioner does not identify any other individuals within its organization 
who perform these tasks, thus relieving the beneficiary from the performance of these duties. Although 
the petitioner revised the beneficiary's job description to include 55 percent of her time managing the 
four regional sales managers in response to the RFE, the petitioner has not established the beneficiary is 
actually supervising and controlling the work of other supervisory, professional, or managerial 
employees. 
The petitioner has not established that the four regional sales managers actually perform supervisory 
or managerial duties. Again , the petitioner does not provide documentary evidence of the contractual 
or other relationship connecting the independent broker sales organizations to the petitioner. The 
regional sales managers, although regularly visiting each geographic market to promote, market, and 
sell the petitioner's product portfolio, as well as provide support in the areas of product knowledge 
along with menu and recipe application to cunent and new operator accounts, do not have duties that 
are inherently supervisory or managerial. Providing the names of the organizations that have 
"accounts" with the petitioner on appeal does not reveal the actual relationship between the petitioner 
and the independent organizations. The petitioner, again, has not provided evidence that the duties of 
a regional sales manager include supervisory or managerial duties rather than the daily sales, 
promotion, and marketing of the petitioner's products to organizations that ultimately distribute the 
products to retailers, restaurants, or other entities. 
On appeal, counsel now avers that the four regional sales managers are professional employees. 
However, when 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. § 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." 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. 817 (Comm'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N 
Dec. 686 (D.D. 1966). 
(b)(6)
Page 10 
Therefore, the AAO must focus on the level of education required by the position, rather than the 
degree held by the subordinate employee. The petitioner's claim that three of the regional sales 
managers possess a bachelor's degree does not automatically lead to the conclusion that these 
employees are employed in a professional capacity as that term is defined above. In the instant 
matter, the petitioner has not, in fact, established that a bachelor's degree is actually necessary , for 
example, to perform the promotion and sales of its food products. A review of the job description 
provided for this position on appeal does not reveal that the duties require advanced knowledge in a 
given field rather than the skill common to successful sale personnel. The petitioner has not 
established that the beneficiary supervises professional employees. At most , considering the 
petitioner's organizational chart, the nature of the petitioner's business, and the general job 
descriptions provided, the beneficiary performs the routine tasks of a first-line supervisor of non­
professional employees. 
The petitioner also fails to establish that the proposed position will be responsible for managing an 
essential function. The petitioner does not identify the function with specificity. We observe again, 
that the petitioner initially described the position as providing technical support to the petitioner's 
sales team, performing the tasks related to sales in a particular market, serving as a bridge between 
the foreign entity's marketing and artwork department, handling marketing materials such as 
brochures and packaging development, and setting up and monitoring food safety programs. Such 
generic duties appear to relate to routine operational tasks. In response to the director's RFE, the 
petitioner allocated 55 percent of the beneficiary's time to supervising personnel. The petitioner's 
revision of the beneficiary's duties in response to the director's RFE, while inconsistent with the initial 
description and thus not probative, further undermined any claim that the beneficiary would be 
managing an essential function. Moreover, as discussed above, the petitioner's job descriptions 
demonstrate that the beneficiary's daily duties involved the performance of the petitioner's marketing 
and sales tasks rather than managing a function. 
In summary, based on the record of proceeding, the beneficiary's job duties are principally composed 
of non-qualifying duties that preclude her 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). 
We acknowledge counsel's concern regarding 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 , USCIS 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 pelformance 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. 
In addition, counsel's reference to unpublished decisions in support of his assertions is not persuasive. 
Counsel has furnished no evidence to establish that the facts of the instant petition are analogous to 
those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that AAO precedent decisions 
(b)(6)
Page 11 
are binding on all users employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. 
See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.e. § 1101(a)(44). The reasonable needs of the 
petitioner may justify a beneficiary who allocates 51 percent of her duties to managerial or executive 
tasks as opposed to 90 percent, but those needs will not excuse a beneficiary who spends the majority 
of his or her time on non-qualifying duties. In this matter, under either iteration of the descriptions of 
the beneficiary's duties, the petitioner has failed to provide sufficient evidence to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
Accordingly, the instant petition cannot be approved. For this reason, the appeal will be dismissed. 
The AAO acknowledges that users previously approved an L-1A nonimmigrant petition filed on 
behalf of the beneficiary, a classification which also requires the petitioner to establish the 
beneficiary's duties comprise primarily managerial or executive tasks. It must be noted, however, that 
many I-140 immigrant petitions are denied after users approves prior nonimmigrant I-129 L-1 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.e. 2003); IKEA US v. 
US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.e. 1999); Fedin Brothers Co. Ltd. v. Sava, supra. 
Examining the consequences of an approved petition, there is a significant difference between a 
nonimmigrant L-lA 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.e. § 1427. Because 
USeiS spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, 
some nonimmigrant L-lA petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d at 29-30; see also 8 e.F.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, USeiS is limited to the information 
contained in that individual record of proceeding. See 8 e.F.R. § 103.2(b)(16)(ii). In the present 
matter, the director reviewed the record of proceeding and concluded that the petitioner had not 
established the beneficiary would be employed in a primarily managerial or executive position. In 
both the request for evidence and the final denial, the director clearly a1ticulated the objective 
statutory and regulatory requirements and applied them to the case at hand. If the previous 
nonimmigrant petition(s) was approved based on the same evidence as submitted in this matter, the 
previous approval(s) would constitute gross error on the part of the director. Despite any number of 
previously approved petitions, users 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. 
IV. Conclusion 
The petition will be denied and the appeal dismissed for the above stated reason. 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.e. § 1361. Here the petitioner has not met that burden. 
(b)(6)