dismissed EB-1C Case: Wholesale Trade

U.s~ Citizenship 
and Immigration 
Services 
MATIER OF A-S-I- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 12, 2016 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an importer and wholesaler of chemicals, toys, and other products, seeks to 
permanently employ the Beneficiary as its president and chairman of the board of directors under the 
first preference immigrant classification for multinational executives or managers. See Immigration 
and Nationality Act (the Act) section 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 ot managerial capacity. 
The Director, Texas Service Center, denied the petition, concluding that the evidence of rec~rd did 
not establish that: (1) the Beneficiary has been employed abroad in a managerial or executive 
capacity; and (2) the Beneficiary will be employed in the United States in a managerial or executive 
capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
(1) imposing improper requirements, and (2) disregarding persuasive evidence and information. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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 
Matter of A-S-1- Inc. 
employer or to a spbsidiary or affiliate thereof in a capacity that is managerial 
or executive. , 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(1)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.P.R. § 204.50)(3) states: 
\ 
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager 
must be accompanied by a statement from an authorized official of the 
petitioning United States employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside 
the United States for at least one year in a managerial or executive 
·capacity by a firm or corporation, or other legal entity, or by an affiliate 
or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same 
employer or a subsidiary or affiliate of the firm or corporation, or other 
legal entity by which the alien was employed overseas, in the three years 
preceding entry as a nonimmigrant, the alien was employed by the entity 
abroad for at least one year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
. least one year. 
II. EMPWYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The Director denied the petition based on a finding that the Petitioner did not establish that: (1) the 
Beneficiary has been employed abroad in a managerial or executive capacity; and (2) the Petitioner 
will employ the Beneficiary in a managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
2 
Matter of A-S-1- Inc. 
(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. § 110l(a)(44)(B), defines the term "executive capacity" 
as "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 thtt organization. 
If staffing levels are used as a factor in determining whether an individu~l 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 10l(a)(44)(C) of the Act. 
A. Foreign Employment in a Managerial or Executive Capacity 
If the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate, then the regulation at 8 C.P.R. § 204.5G)(3)(i)(B) requires the Petitioner to submit a 
statement from an authorized official of the petitioning United States employer which demonstrates 
3 
(b)(6)
Matter of A -S-1- Inc. 
that, in the three years preceding entry as a nonimmigrant, the Beneficiary was employed by the 
entity abroad for at least one year in a managerial or executive capacity. 
The Petitioner filed Form I-140 on September 2, 2014. The Petitioner identified the Beneficiary's 
foreign employer as an official 
of the petitioning company (and the Beneficiary's predecessor as its president), stated that the 
Beneficiary founded in 1994 and served as its general manager until he became the 
Petitioner's president in 2014. 
organizational chart indicates that the general manager reported to the board of 
directors and the shareholders, and oversaw vice presidents in charge of the following departments: 
• Productive 
• Technical Development 
• Technology 
• '- Business Operations 
• Accounting 
• Enterprise Management 
• Property Management 
• Quality Management 
The Petitioner submitted examples of the Beneficiary's work with the foreign company, such as a 
schedule of employee benefits for weddings, births, and other life events, and the Beneficiary's 
approval of a proposed price increase. 
When examining the executive or managerial capacity of a given beneficiary, we will look first to 
the petitioner's description of the job duties. 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 in 
a m~nagerial or executive capacity. See 8 C.F.R. § 204.5G)(5). 
The Director issued a request for evidence · (RFE), asking for a detailed job description from the 
foreign company, detailing the Beneficiary's specific duties and the time he devoted to each. In 
response, the Petitioner submitted an unsigned and unattributed statement that reads, in part: 
The vice presidents . . . report direct! y to the [Beneficiary] with regard to the 
business, financial, operational and technical development, issues and situation of the 
Company. [The Beneficiary] instructs the eight department heads on a daily basis 
concerning the same matters .... 
As the General Manager of the Company, [the Beneficiary] is responsible for leading 
the business and management of the operations of within the authorities 
delegated by the Board of Directors to the General Manager. ... 
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Matter of A-S-1- Inc. 
[The Beneficiary's] duties and responsibilities can be divided into two (2) parts .... 
A. Managing and supervising the eight departments of the Company 
• Establishes departmental responsibilities, and coordinates functions among 
departments; 
• evaluates performance of the Company's eight departments and its staff in 
meeting objectives, and to instruct department managers to determine areas of 
potential cost reduction, program improvement, or policy change; 
• · evaluates the performance of the vice presidents of the departments an a 
regular basis, gives instructions to department managers on how best to 
organize and operate the respective department; 
• instructs department heads on the hiring and firing on the respective 
department's staff and personnel; 
• collects recommendations on business operation and Company policy from 
department heads; 
• spearheads all of the departments in the development, communication and 
implementation of effective growth strategies and processes; 
• formulates and implements strategic plans that 'guide[] the direction of the 
business; leads all departments to perform effectively and efficiently 
according to the strategic plans; 
• reviews internal corporate reports and documents submitted by department 
heads; 
• Leads all of the department[] heads in the development and recommendation 
of annual budgets; 
• establishes a sound corporate structure for the management team and the staff; 
• directs and coordinates among various departments on all approved programs, 
projects and major activities of the Company; 
• appoints key managerial level employees, and assigns or delegate[s] 
responsibilities to lower-leve[l] managerial employees; 
• instructs department heads to give annual reviews and evaluation on the staff 
employees' work performance 
• takes part in the decisions making on the hire and fire of department heads 
based on their work performance . 
• instructs department heads to recommend on the hire and fire of staff 
employees based on their work performance 
B. Duties and responsibilities to the Board of Directors of the Company 
• assists the Board of Directors to determine the Company's mission, vision, 
and short- and long-term goals; 
• sees that the Board of Directors are kept fully informed on the conditions and 
operations of the Company, and on all important factors influencing them; 
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(b)(6)
Matter of A-S-1- Inc. 
• informs the Board of Directors about each department's performance, and the 
overall trends, issues, problems and activities in order to facilitate policy­
making. 
• ~xecutes all decisions of the Board of Directors except when other 
assignments are made by the Board, makes sure that department heads will in 
turn fulfill their duties on executing the decisions of the Board; 
• assists the Board of Directors to maintain[] awareness of both the external and 
internal competitive landscape, opportunities for expansion, customers, 
markets, new industry developments and standards, and inform department 
heads on such matters on a timely basis; 
• insures that all funds, physical assets and other property of the Company are 
appropriately safeguarded and administered; 
• evaluates the success of the Company, makes decisions on how to maximize 
investments, and increase efficiency, and makes related suggestions and 
recommendations to the Board of Directors. 
The Petitioner submitted copies of various doc~ents showing the Beneficiary's approval of personnel 
actions, proposals from lower-level employees, and other matters. 
The Director denied the petition, finding several deficiencies in the Beneficiary's job description, 
including the following: 
• The Petitioner did not identify the author 
• It did not list specific daily duties 
• Several listed items appear to be one-time tasks rather than ongoing responsiblities 
• It did not show how much time the Beneficiary devoted to his duties 
On appeal, the Petitioner states that the authorship of the job description is irrelevant, because the 
Petitioner submitted the job description and therefore "[i]t is [the] petitioner's statement." The Director, 
however, specifically asked for a job description from the foreign company, and the record does not 
show that the description came from anyone with knowledge of the Beneficiary's duties. Other parties 
may possess incorrect information about the Beneficiary's work. For example, throughout this 
proceeding, including on appeal, the Petitioner has asserted that the Beneficiary personally founded the 
foreign parent company in 1994. In his own USCIS filings, however, the Ben~ficiary has repeatedly 
stated that he began working for the foreign company in 2002. In response to a recent inquiry, he stated 
that named him its general manager in 2002, as the Beneficiary's own company, 
was preparing to invest in Given 
such discrepancies, it is important for us to know the sources of information so that we can judge their 
credibility and reliability. 
The Petitioner states that the regulations only require a statement describing the Beneficiary's duties, 
not the time he spent on individual tasks, and that it would be difficult or impossible to break down the 
Beneficiary's duties by the time spent on each. 
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Matter of A-S-1- Inc. 
The Petitioner need not provide a precise accounting of all the Beneficiary's time, but the regulations do 
justify a request for at least general approximations. The definitions of executive and managerial 
capacity have two parts. First, the beneficiary must perform certain high-level responsibilities. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Second, the beneficiary must be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities. See, e.g., Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); 
Champion World, Inc. v. INS, 940 F.2d 1533. Because the Petitioner has been unable or unwilling to 
say how much time the Beneficiary devoted to each of his responsibilities abroad, the Petitioner has 
not shown that the Beneficiary primarily performed managerial or executive duties. For example, 
several of the Beneficiary's stated duties involved providing information to the board of directors, 
which the Petitioner has not shown to be an inherently managerial or executive function. Other 
described duties appear to be one-time functions, such as establishing responsibilities, that would not 
have placed ongoing demands on the Beneficiary's time. The Petitioner stated that the Beneficiary 
was responsible for ensuring proper handling of funds and assets, but the record does not show what 
actions the Beneficiary took in this regard. The record does not contain enough information to show 
that the Beneficiary primarily performed managerial or executive tasks. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
The statutory defmition of"managerial capacity" at section 101(a)(44)(A) of the Act allows for both 
"personnel managers" and "function managers." Personnel managers are required to primarily 
supervise and control the work of other supervisory, professional, or managerial employees. 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. 8 C.F.R. 
§ 204.5(j)(2). ·"" 
The term "function manager" applies generally when a beneficiary's managerial role arises not from 
supervising or controlling the work of a subordinate staff but instead from responsibility for 
managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. 
The petitioner must clearly describe 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 dedicated to managing the essential function. See 
8 C.P.R. § 2Q4.5G)(5). In addition, a petitioner's description of a beneficiary's daily duties must 
demonstrate that the beneficiary will manage the function rather than perform the duties related to 
the function. 
(b)(6)
Matter of A-S-l-Ine. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization.' Under the statute, a beneficiary 
must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for a beneficiary to direct and a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision. making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." See section 101 (a)( 44 )(B) of the Act. 
The Petitioner, on appeal, asserts that the Beneficiary "was not a first line supervisor. He had eight 
departments below him." The Petitioner's organizational chart shows vice presidents in charge of those 
departments, but provides no further specific information about lower-level staffing. The Petitioner has 
not shown how many employees worked in each department or provided any meaningful details about 
the duties of the vice presidents. Their job descriptions in the record are one sentence each, describing 
the function of each department and stating that the vice president is in <;:harge of that function. For 
example: "The Vice President overseeing the Technical Development Department is in charge of 
developing and designing new products." Therefore, the Petitioner has not shown that these individuals 
had duties that warrant the title of"vice president." 
On appeal, the Petitioner points to initial exhibit C8 to show that has "several 
workshops ... with over one hundred employees." Exhibit C8 is a floor plan of the foreign company's 
building. Interior photographs show only a small number of workers. The record does not establish the 
number of employees or the specific roles of the company's vice presidents. 
The record indicates· that the Beneficiary oversaw operations, and that his 
subordinates included at least some supervisors. The Petitioner also claims that the foreign company 
had a level of organizational complexity that would require executive oversight over several vice 
presidents. Even after the Director issued an RFE to allow the Petitioner to supplement the record, 
however, the submitted information is so fragme1_1tary that we cannot conclude that the Beneficiary 
primarily served as a function manager, a personnel manager, or an executive of the foreign company. 
Individual documents in the record serve as snapshots of the Beneficiary's level of authority, but the 
record contains conflicting assertions about such basic matters as whether or not the Beneficiary 
founded the company. The incomplete information the Petitioner has provided does not suffice to meet 
the Petitioner's burden of proo£ 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary was employed in a managerial or executive capacity abroad. 
8 
(b)(6)
Matter of A-S-1- Inc. 
B. U.S. Employment in a Managerial or Executive Capacity 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitione~ to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. stated 
that the Beneficiary's "duties include establishing [the] company's goals and devis[ing] strategies 
and formulat[ing] policies to ensure that [the] company's objectives are met; planning and directing 
the operations of the company; planning the use of materials and human resources including 
appointing the department heads, and overseeing budgets." 
On the Form 1-140, the Petitioner indicated that it had six current employees in the United States. 
The Petitioner's organizational chart showed the following configuration as of June 2012: 
Sales Manager 
Toys and Sports 
I 
Sales Representatives 
(employees and contractors) 
Shareholders 
. I 
Board of Directors 
I 
President [the Beneficiary] 
I 
Vice President 
Sales Manager 
Chemical Products 
I 
Sales Representatives 
and Customer Service 
(employees and contractors) 
Office Manager 
I 
Warehouse and 
. Accounting 
The above chart does not specify the exact number of employees, but it shows more than the six 
employees claimed on Form 1-140. Tax returns1 show that the Petitioner paid $23,708 in officer 
compensation (all to and $65,500 in salaries and wages during the tax year ending 
November 30, 2013, and paid 
six employees a total of $41,100 during the second quarter of 2014. 
In the RFE, the Director asked for more evidence and information to show that the Beneficiary 'will 
work in a managerial or executive capacity. The Director requested information regarding the 
Beneficiary's specific duties and the time spent on each, and IRS Forms W-2, Wage and Tax 
Statements, for the Petitioner's employees. The Director also requested evidence of the Petitioner's 
use of contract labor, if any. 
The Petitioner submitted a translated copy of the minutes of a July 1, 2012, meeting at 
In those minutes, the directors of 
1 IRS Form 1120, U.S. Corporation Income Tax Return, and IRS Form 941, Employer's Quarterly Federal Tax Return. 
9 
(b)(6)
Matter of A-S-1- Inc. 
(including the Beneficiary) resolved to "[a]ssign and transfer [the Beneficiary] to the USA 
subsidiary company and appoint him Manager of Chemical Department of that company." The June 
2012 organizational chart does not show that the Petitioner had any "Chemical Department," 
although it does show a sales manager for chemical produCts. , 
The Petitioner submitted copies of IRS Forms 941, indicating that the Petitioner had six employees 
in the first quarter of 2015, and nine employees in both the second and third quarters of that year. 
The Petitioner did not submit the requested IRS Forms W -2, and therefore the Petitioner did not 
show the compensation level of its individual employees. The Petitioner did not submit any 
documentation of contract labor, although its 2012 organizational chart had referred to an 
unspecified number of contractors. Profit and loss statements dated November 30, 2014, and August 
31, 2015, did not include line items for contract labor. 
The Petitioner submitted unattributed job descriptions for the Beneficiary and two of his 
subordinates. The Beneficiary's listed duties follow: 
• to supervise the day-to-day operations of the company via working with the 
department managers; 
• to give annual reviews and evaluation on the managers' performance; 
• to make important business and strategic decisions [and] organize marketing by 
working closely with the department managers; 
• to review market re~earch reports and make market policies; 
• to work with the managers to make decisions on the hir[ing] and fir[ing] of 
employees based on their work performance; 
• to review internal corporate records and documents submitted by the department 
managers 
• to approve, revise or disapprove corporate reports and documents submitted by 
the department managers; 
The Petitioner submitted the following job description for the children's products department 
manager: 
• to plan marketing and branding objectives for the company's children's products; 
• to prepare marketing strategies of children's products alongside other company 
executives and staff; 
• to analyze children's market trends and recommend changes to marketing and 
business development strategies based on analysis and feedback; 
• to ensure brand messages in the children's products industry are consistent; 
• to gather and analyze customer feedback[] and insight; 
• to collaborate with the President to develop strategic partnership activities and 
implement the execution framework and strategic plan on identified opportunities; 
• to meet and negotiate with customers for the orders of the company's children's 
products. 
10 
Matter of A-S-1- Inc. 
The job description for the chemical products department manager replaces every instance of the 
word "children's" with the word "chemicals," but is otherwise identical to the above description. 
The Petitioner's 2012 organizational chart did not show a children's product department manager or 
a chemical products department manager (although it did show sales managers for toys and 
chemicals). The Director, in the RFE, had asked for an updated organizational chart, but the 
Petitioner did not submit one. 
In the denial notice, the Director identified several deficiencies in the Beneficiary's job description, 
including the following: 
• The job description lacks details about the ~ature of the Beneficiary's duties and the time 
devoted to each specific task. 
• Several described activities appear to be occasional rather than daily responsibilities. 
• The description states that the Beneficiary reviews reports from department managers, but 
the department managers' listed duties do not include preparation of those reports. 
The Director also noted the absence of an updated organizational chart, and the· lack of job 
descriptions for the vice president and office manager named on the earlier chart. The Director 
concluded that "the beneficiary may be performing some of the office manager functions," and that 
the Petitioner has not shown that the Beneficiary's duties are primarily managerial or executive. 
The Director found the Beneficiary's U.S. job description to be deficient for essentially the same 
reasons cited for the Beneficiary's foreign position, already discussed above (for example, a lack of 
information regarding how much time the Beneficiary devotes to each given task). The Petitioner, 
on appeal, states that the "Director found almost [the] same 'problems"' with descriptions for the 
two jobs, and instead of offering a separate rebuttal with respect to the U.S. job description, the 
Petitioner states: "We have argued above." We agree with the Director's finding that the Petitioner 
did not show that the Beneficiary will primarily perform managerial or executive duties because the 
record does not indicate how much time the Beneficiary will devote to each of his proposed 
responsibilities. In addition, the proposed duties lack specifi~ity such that we do not have a clear 
understanding of what the Beneficiary's daily duties will be. Below, we will focus on areas specific 
to the Beneficiary's position with the petitioning U.S. employer. 
Beyond the Beneficiary's job description, we consider the proposed position in light of the nature of 
the Petitioner's business, its organizational structure, and the availability of staff to carry out the 
Petitioner's daily operational tasks. Federal courts have generally agreed that, in reviewing the 
relevance of the number of employees a Petitioner has, USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to 
support a manager." Family, Inc. v. U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 
(9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F .2d 17 5, 178 (D. C. Cir. 
1991); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 
11 
(b)(6)
Matter of A-S-1- Inc. 
29 (D.D.C. 2003). Furthermore, it is appropriate for USCIS to consider the size of the petitioning 
company in conjunction with other relevant factors, such as a company's small personnel size and 
the absence of employees who would perform the non-managerial or non-executive operations of the 
company. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
On appeal, the Petitioner stated: "the failure to update the organizational chart or to·. describe the 
duties of the office manager or vice president, does not mean that there is not [an] office manager." 
If the Director requests specific evidence, and the Petitioner does not submit that 
evidence, then that 
omission is, itself, grounds for denial of the petition under 8 C.F.R. § 103.2(b)(14). The Petitioner 
states that the office manager is not a first-line supervisor, but the record does not contain evidence 
to support that statement. A petitioner's unsupported statements are of very limited weight and 
normally will be insufficient to carry its burden of proof. See Matter of Soffici, 22 I&N Dec. 158, 
165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). The Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter of Chawathe, 25 I&N Dec. at 376. 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). 
The Petitioner does not directly dispute the Director's assertion that the Beneficiary may have 
performed the duties of the office manager. Instead, the Petitioner states that, "assuming that the 
beneficiary might have performed the Office Manager's duties as the USCIS reasoned, the office 
manager still performed the managerial functions" of that position. It remains that the Petitioner has 
not described the office manager's duties or provided any details about the office manager's 
subordinates except for the phrase "warehouse and accounting" on the 2012 organizational chart. 
The Director found that the Petitioner did not submit a ]ob description for the vice president. On 
appeal, the Petitioner asserts that is the vice president, as identified in the July 30, 2014, 
introductory letter submitted with the petition. Several documents before . and after that date, 
however, refer to as the manager of the Petitioner's chemical sales department. This 
discrepancy reinforces the conclusion that, at the time of filing, the Petitioner was understaffed in 
relation to the company structure described in the organizational chart. The Director asked for 
information about the company's staffing, and documentary evidence to corroborate that 
information. The Petitioner's response has been fragmentary and insufficient. The Petitioner has 
not provided enough information and evidence to warrant approval of the petition, and the 
information that the Petitioner has provided is not always internally consistent. 
The Petitioner has not submitted all of the documentation that the Director requested, and the 
materials in the record do not indicate that the petitioning company, at the time of filing, had 
sufficient personnel to relieve the Beneficiary from having to perform significant non-qualifying 
operational or administrative functions. USCIS is not required to interpret gaps in the record in the 
manner most favorable to the Petitioner. Rather, the burden is on the Petitioner to establish 
eligibility for the benefit sought. See Matter of Chawathe, 25 I&N Dec. 376; Matter of Brantigan, 
11 I&N Dec. 493 (BIA 1966). 
12 
Matter of A-S-1- Inc. 
Based on the deficiencies discussed above, the Petitioner has not established that it will employ the 
Beneficiary in a managerial or executive capacity in the United States. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed . 
. Cite as Matter of A-S-1- Inc., ID# 7953 (AAO Dec. 12, 2016) 
) 
13