dismissed EB-1C Case: Wholesale Trade

prsvent clearly unwarranted 
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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: JAN 2 4 2006 
SRC 04 140 5 1 666 
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. 8 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. 
obert P. hiemann, Director 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1153(b)(l)(C). The petitioner is a corporation operating as a wholesaler of prepaid telephone cards under 
the laws of the State of Texas. The petitioner seeks to employ the beneficiary as its finance manager. 
The director denied the petition concluding that the petitioner had not demonstrated that: (1) the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity; or (2) at the 
time the priority date was established, the petitioner had the ability to pay the beneficiary her proffered annual 
salary of $28,000. 
On appeal, counsel for the petitioner claims that the director's denial of the visa petition is erroneous as she 
did not consider the concept of "functional manager," a capacity in which counsel claims the beneficiary 
would be employed. Counsel notes that Citizenship and Immigration Services (CIS) ignored the regulatory 
requirement that the petitioner's stage of development be considered in addition to the size of its staffing 
levels. Counsel further claims that the petitioner demonstrated its ability to pay the beneficiary's proffered 
salary by providing copies of the beneficiary's prior paystubs, which reflect wages "slightly above the 
proffered wage," as well as through its bank statements, which counsel suggests reflect an average monthly 
balance above the beneficiary's proffered salary. Counsel submits an appellate brief in support of his 
assertions on appeal. 
Section 203(b) of the Act states, in pertinent part: 
(1) Pnority 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 ths 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 or 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 fmish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first issue in this proceeding is whether the beneficiary would be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(i) Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supmsed; 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-today 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. 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-malung; and 
(iv) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the immigrant petition on April 20, 2004 noting that in addition to its four employees, the 
beneficiary would be employed as the corporation's finance manager. In an attached letter, dated April 5, 
2004, the petitioner outlined the job duties to be performed by the beneficiary in her proposed position. The 
Page 4 
beneficiary's job duties will be outlined below, as the petitioner's response to the director's notice of intent to 
deny included an allocation of time the beneficiary would devote to the proposed tasks. The petitioner 
submitted an organizational chart identifying the following four workers employed by the petitioner at the 
time of filing: president-chief executive officer, sales manager, accounts manager, and assistant sales 
manager. The petitioner noted on the organizational chart the proposed employment of the beneficiary and 
sales personnel. The petitioner attached a summary of the job duties performed by the four employees, as 
well as the beneficiary. 
In a Notice of Intent to Deny, dated November 18, 2004, the director asked that the petitioner assign the 
percentage of time the beneficiary would dedicate to each named task, and clarify "who provides what 
product, sales and services of the business." The director also requested that the petitioner define the 
petitioner's workplace as a sales office, agency or distribution center, and explain the work performed by the 
petitioner's lower-level employees. The director noted that the beneficiary's proposed position "is not defined 
with clear separate duties" fi-om those performed by the other employees. 
In the petitioner's response, dated December 15, 2004, the petitioner's counsel provided the following outline 
of the beneficiary's proposed job duties as finance manager: 
Develop and direct major financial policies and formulate business strategies for [the 
petitioner]; [lo%] 
Direct and coordinate activities to implement accounting and financial policies, 
procedures, and practices for [the petitioning entity]; [I 0%] 
Develop and implement financial plans for [the petitioning entity]; [lo%] 
Confer with the management to determine its assets, liabilities, cash flow insurance 
coverage, tax status, and financial objectives; [lo%] 
Analyze financial status of the company and develop financial plans based on analysis of 
data, and discuss financial operations with [the petitioner's] management team; [lo%] 
Prepare and submit documents to implement plans selected by management of [the 
petitioning entity]; [lo%] 
Revise plans based on modified needs of the company or the changes in the investment 
market; [5%] 
Direct, through subordinate supervisors, activities of workers engaged in implementing 
financial and accounting policies; [5%] 
Establish procedures for custody and control of assets, records and loan collateral to 
ensure safekeeping for [the petitioning entity]; [5%] 
Prepare financial and regulatory reports required by law, regulations, and the 
management team; [5%] 
Evaluate data pertaining to costs to plan budgets for [the petitioning entity]; [5%] 
Plan and develop methods and procedures for carrying out financial activities; [5%] 
Review activity reports and financial statements of all operations to determine progress 
and status attaining objectives and revise objectives and plans in accordance with current 
conditions; [5%] 
Directs and coordinates formulation of financial programs to provide funding for new or 
continuing operations to maximize returns on investments, and to increase productivity of 
the corporations. [5%] 
Page 5 
Counsel noted that the proposed sales assistants would perform the sales of the petitioner's telecommunication 
products. 
Counsel emphasized the need for the beneficiary's proposed position, stating that it "is justified by the volume 
of business (over three million dollars), the need for subordiante [sic] oversight (of five subordinates), 
development and direction of telecommunication services expansions, and the fact that the President . . . has 
to divide his time with administering both parent and U.S. subsidiary." (Emphasis in original). In response to 
the director's request for clarification of the beneficiary's job duties, counsel stated that the beneficiary would 
direct the company's financial policies and would foimulate its business expansion strategies, while the 
accounts manager would prepare and implement the company's budget and monitor accounting targets, and 
the sales manager would direct the petitioner's sales program. Counsel claimed that the above-addressed 
evidence demonstrated the beneficiary's proposed employment in an executive capacity. 
In a June 10,2005 decision, the director concluded that the beneficiary would not be employed by the United 
States entity in a primarily managerial or executive capacity. The director stated that "[tlhe beneficiary 
evidently exercises discretion over the day-to-day operations of the activity, but it must be noted that she is 
also performing some of the day to day duties of the business." The director concluded that the petitioning 
entity would not need a full-time employee in the beneficiary's proposed position "to manage two or three 
employees and to make decisions regarding the company." The director further noted that the beneficiary 
would not be primarily directing the management of the company, nor would the beneficiary primarily direct 
"a subordinate staff of professional, managerial, or supervisory personnel, who [would] relieve him from 
performing non-qualifying duties." Consequently, the director denied the petition. 
Counsel for the petitioner filed an appeal on July 11, 2005. In a subsequently submitted appellate brief, 
counsel stresses CIS' erroneous reliance on the size of the petitioner's staffing levels in denying the requested 
classification. Counsel notes that the director disregarded the principle of "functional manager", and 
challenges that "[CIS] denied the Petition on the basis of a low employee count, irrespective of the financial 
figures (over $2 million in gross sales for 2002 and nearly $3.5 million in 2004) and the fact that the financial 
function required management." (Emphasis in original). Counsel contends that the director ignored the 
petitioner's "early stage of development," which counsel claims "[would] not require large staffing levels," 
and stated that when the petitioner's staffing levels "are properly acknowledged" the evidence demonstrates 
that the beneficiary would be managing the company's financial function. Counsel notes that the petitioner's 
employees do not require management, stating that "the nature of the calling card business [is] to derive large 
business from bulk sales to critical retailers and not from the individual retail sales of the calling cards, which 
would be labor intensive." Counsel references several cases, including Mars Jewelers, Inc. v. INS, 702 F. 
Supp. 1570, 1574 (N.D. Ga. 1988) as requiring that the petitioner's reasonable needs be considered in addition 
to the company's size when determining the beneficiary's employment capacity. Counsel also refers to an 
unpublished AAO decision in support of the proposition that a beneficiary may be considered to be serving in 
a managerial and executive capacity for L-1 classification even though he was the sole employee. Counsel 
emphasizes that the appropriate review of the beneficiary's employment capacity requires consideration of the 
beneficiary's job duties in light of the petitioner's overall stage of development. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
Page 6 
Counsel appropriately stresses on appeal the need to review the beneficiary's job duties when determining the 
beneficiary's employment capacity. As provided in the regulation at 8 C.F.R. $ 204.5Cj)(5), when examining 
the executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description 
of the job duties. Here, the job duties presented by the petitioner do not substantiate its claim that the 
beneficiary would be employed as a function manager. 
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 10 1 (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, 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. 8 
C.F.R. $ 204.50')(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. While performing non- 
qualifying tasks necessary to produce a product or service will not automatically disqualify the beneficiary as 
long as those tasks are not the majority of the beneficiary's duties, the petitioner still has the burden of 
establishing that the beneficiary is "primarily" performing managerial or executive duties. Section 10 1(a)(44) 
of the Act. Whether the beneficiary is an "activity" or "function" manager turns in part on whether the 
petitioner has sustained its burden of proving that his duties are "primarily" managerial. 
The AAO emphasizes the requirement of specificity associated with the claim of employment as a function 
manager. See 8 C.F.R. $ 204.5Cj)(5). Other than counsel's claim on appeal that the beneficiary would be 
managing the company's financial function, there is no evidence in the record to support the finding that the 
beneficiary would not be primarily pe$orming the financial operations of the United States business. 
Counsel's limited claim on appeal that the beneficiary's senior-level position in the company, during which 
she "manages the essential function of finance, and as corroborated her pay, . . . exercises discretion over the 
day-to-day operations of the financial activities," is not sufficient to demonstrate the beneficiary's 
employment as a function manager. Additionally, counsel's "common sense" argument that the petitioner's 
realization of "millions in gross sales" necessitates the employment of a worker who would manage its 
financial function does not overcome this requirement. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. 
Supp. 2d 22,25 (D.D.C. 1999) (requiring the petitioner to establish what proportion of the beneficiary's duties 
would be managerial or executive functions and what proportion would be non-managerial or non-executive). 
The petitioner has failed to clarify such ambiguities as the "major financial policies" developed by the 
beneficiary, the "activities" coordinated by the beneficiary with regard to the company's accounting and 
financial policies, or the "workers engaged in the implementing financial and accounting policies." 
Additionally, the petitioner has not offered documentary evidence, such as its business plan, which would 
assist in ascertaining the specific business strategies to be formulated by the beneficiary. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The AAO notes that the unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Page 7 
A careful review of the beneficiary's job duties indicates that the beneficiary would devote approximately 60 
percent of her time to personally performing tasks related to the petitioner's finances. Specifically, the 
beneficiary would be personally involved in the development, implementation, and revision of the company's 
financial plans, and would perform such non-qualifling tasks as determining the company's "assets, liabilities, 
cash flow insurance coverage, tax status, and financial objectives," analyzing financial data with regard to the 
company's financial status, as well as "pertaining to costs to plan budgets," discussing "financial options" with 
the petitioner's management, and preparing "financial and regulatory reports" and documents requested by 
management. Based on the petitioner's representations, the beneficiary would be primarily performing the 
financial operations of the business, rather than "[e]xercis[ing] direction over the day-to-day operations of the 
. . . [financial] function." Section 101(a)(44)(A) of the Act. The minimal amount of time dedicated by the 
beneficiary to developing and directing the petitioner's financial policies and formulating business strategies 
is far outweighed by her analysis and interpretation of the petitioner's financial data and preparation of 
financial documents and reports, activities which are clearly deemed to be related to the petitioner's finances. 
An employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology International, 
19 I&N Dec. 593,604 (Comm. 1988). 
Despite counsel's claim on appeal that the beneficiary would manage the financial function rather than the 
personnel of the corporation, the record does not reveal that the petitioner employs workers who would 
relieve the beneficiary from the performance of the above-mentioned non-managerial and non-executive 
tasks. Counsel correctly observes that a company's size alone, without taking into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See 9 101 (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C). However, it is appropriate for CIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 1 5 (D.D.C. 200 1). The size of a company may 
be especially relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted 
are true. Id. 
Based on the job descriptions of the beneficiary's subordinate employees, it does not appear that the accounts 
manager, sales manager, or assistant sales manager would assume the above-outlined non-managerial and 
non-executive tasks performed by the beneficiary, particularly the analysis of data, determination of assets 
and liabilities, projection of cash flow insurance coverage, tax status, and financial objectives, and the 
preparation of documents and financial and regulatory reports. The AAO notes that the beneficiary's job 
duties also appear to overlap with the tasks of the accounts manager, specifically in the area of "develop[ing] 
and implement[ing] financial plans for [the petitioner]." Each employee is represented as performing this 
task, yet the petitioner has failed to clarify the inconsistency. The AAO further notes that it is unclear from 
the record whether the petitioner employed the above-referenced workers at the time of filing. The 
petitioner's quarterly wage report for the second quarter of 2004 indicates that one worker was employed 
during April, the date during which the immigrant petition was filed. Based on the record, the AAO is unable 
to determine whom the petitioner employed as of the date of filing, as well as the related job duties. 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). 
Additionally, taking into consideration the purpose and stage of development of the petitioner as a four year- 
old company operating as a wholesaler, it does not appear that the company's reasonable needs are met by the 
employment of the beneficiary, as well as the president, accounts manager, sales manager and assistant sales 
manager. Here, counsel states that sales personnel would be responsible for selling the petitioner's product, 
yet, at the time of filing, no sales representatives were employed by the petitioner. Additionally, as the 
beneficiary is clearly responsible for performing non-qualifying functions of the business, which have not 
otherwise been assumed by any of the lower-level employees, the petitioner does not employ a staff sufficient 
to support the beneficiary in a primarily managerial or executive capacity. Regardless, the reasonable needs 
of the petitioner serve only as a factor in evaluating the lack of staff in the context of reviewing the claimed 
managerial or executive duties. The petitioner must still establish that the beneficiary is to be employed in the 
United States in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or 
the Act. As discussed above, the petitioner has not established this essential element of eligibility. 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the 
appeal will be dismissed. 
The AAO will next consider the issue of whether at the time the priority date was established the petitioner 
had the ability to pay the beneficiary's proffered salary of $28,000. 
In her November 18, 2004 Notice of Intent to Deny, the director requested that the petitioner provide at least 
two of the following pieces of documentary evidence demonstrating its ability to pay the beneficiary her 
proffered salary: (1) copies of the petitioner's past six monthly bank statements; (2) a published annual report; 
(3) a substantiated annual profit and loss statement; or (4) an audit performed by a certified public accountant. 
In a response dated December 15,2004, the petitioner's counsel referenced a May 4,2004 CIS memorandum 
as authority for establishing an ability to pay the proffered salary. Counsel stated that the petitioner 
demonstrated its ability to pay the proposed salary of $28,000 through: (1) copies of the beneficiary's monthly 
paystubs, which reflect a salary "at slightly above the proffered wage"; and (2) the petitioner's bank 
statements, which indicate that the petitioner's monthly balance exceeded the beneficiary's monthly wages. 
Counsel noted that in addition to the petitioner's present ability to pay the beneficiary a salary of $28,000, the 
company "has exhibited a pattern of increased financial results." 
In her June 10,2005 decision, the director concluded that the petitioner had not demonstrated its ability to pay 
the beneficiary's proposed annual salary. The director rejected the petitioner's bank statements as evidence of 
its ability to pay the beneficiary, stating that they do not reflect the petitioner's liabilities. The director stated 
that "[alt the time the priority date was established, the petitioner did not show the ability to pay the proffered 
wage in its net profit nor in its assets over liabilities ratio." The director concluded that the petitioner could 
not afford to pay the beneficiary $28,000 per year. Consequently, the director denied the petition. 
On appeal, counsel challenges the director's finding that the petitioner could not pay the beneficiary's annual 
salary and questions CIS' competence "to conduct accounting audits that second-guess the business judgment 
of the Petitioner." Counsel again references the 2004 CIS memorandum, stating that the petitioner satisfied 
two of the requirements outlined in the memorandum for establishing the ability to pay, specifically through 
paystubs and bank statements. Counsel also contends that a "totality" approach, adopted in O'Conner v. 
Attorney General, 1987 WL 18243 (D.Mass.), requires an analysis of the petitioner's "entire financial 
resources" in order to verify its ability to pay. Counsel states that the petitioner "has exhibited a pattern of 
increased financial resources." 
Counsel rejects the director's "assets over liabilities ratio" as a factor in determining the company's ability to 
pay the beneficiary's salary, stating that neither the 2004 CIS memorandum nor the Code of Federal 
Regulations address this analysis. Counsel also stresses the purpose behind the "ability to pay" requirement, 
stating that "[it is] only meant to present a mechanism for assessing whether the Petitioner and its proffered 
position as 'bona fide'," and contends that CIS should not apply a "hyper analytical" analysis to the 
requirement. 
Upon review, the petitioner has established that it had the ability to pay the beneficiary her proffered salary of 
$28,000 at the time the priority date was established. 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In 
the present matter, the beneficiary was not employed by the petitioner at the time the priority date was 
established. As a result, the petitioner did not establish that it had previously employed the beneficiary at the 
proposed salary. However, a review of the payslips submitted by the petitioner in its response to the director's 
notice of intent to deny demonstrate that the petitioner has been paying the beneficiary her proffered wages of 
$2,400 per month since her employment with the company in August 2004. Additionally, the petitioner's 
bank statement for the period ending April 30, 2004, the period during which the priority date for the instant 
petition was established, reflects an available balance in the petitioner's checking account sufficient to pay the 
beneficiary's monthly wages. As a result, the petitioner demonstrated its ability to pay the beneficiary her 
proffered annual salary. Accordingly, the director's decision with regard to this issue only will be withdrawn. 
Beyond the decision of the director, an additional issue is whether the petitioner demonstrated that the 
beneficiary had been employed by the foreign entity in a primarily managerial or executive capacity. 
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 failed to document what proportion of the beneficiary's duties were 
managerial functions and what proportion were non-managerial. The absence of this documentation is 
important because several of the beneficiary's daily tasks, such as analyzing financial data in order to 
recommend financial options and prepare the company's budget, revising investment plans according to the 
needs of the company, preparing and submitting "documents" to management, completing financial and 
regulatory reports, and meeting with management in order to ascertain the company's financial status and 
needs regarding cash flow insurance coverage, do not fall directly under traditional managerial duties as 
defined in the statute. The beneficiary's role in the financial operations of the company, rather than merely 
managing the financial function, is further support by her responsibility of formulating plans in order to 
increase the company's profit margin. The petitioner's outline of the job duties performed by the beneficiary 
in her position as finance executive demonstrates that the beneficiary was personally responsible for 
performing the day-to-day finance functions of the foreign corporation. The AAO also notes that while the 
petitioner stated that the beneficiary directed financial activities through subordinate supervisors, the 
petitioner did not provide an organizational chart or other documentary evidence identifying the beneficiary's 
subordinates and confirming their performance of the company's day-to-day finance operations. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). For this reason, the AAO cannot determine whether the 
beneficiary was employed in a primarily managerial or executive capacity. Accordingly, the petition will be 
denied for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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. 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.