dismissed L-1A Case: Agriculture

U.S. Department of Homeland Security 
20 Massachuselts Ave . N W . Rln A3042 
Wash~ngton. DC 20529 
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invasion of wnod Prfnrp 
PUBWC COPY 
U.S. Citizenship, 
and Immigration 
Services 
File: SRC 04 099 50164 Office: TEXAS SERVICE CENTER Date: CC\ 2 7 2003 
Pettt~on: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigrat~on 
and Nationality Act, 8 U.S.C. 1 101 (a)(15)(L) 
TN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Th~s 1s the dec~slon of the Adm~nistrative 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. 
+drector dmin~strahve Appeals Office 
SRC 04 099 501 64 
Page 2 
DISCUSSION: The Director, Texas Service Center, denled the petttlon for a nonlmmigrant vlsa. The matter 
is now before the Admln~strative Appeals Office (AAO) on appeal The AAO wtll dtsmiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1 A noniinmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of thk Immigration and Nationality Act (the Act), 8 
U.S.C. 1 10 i(a)(l s)(L). The petitioner is a Pennsylvania corporation engaged in the production and 
distribution of apcultural products. The petitioner is an affiliate of located in Porto 
Alegre, Brazil. The petitioner seeks to employ the beneficiary as its development manager for a three-year 
period. 
The director denled {he petitton concluding that the petlttoner dtd not establlsh that the beneficlary would be 
employed m the Un~ted States in a pnmarily manager~al or executlve capac~ty. 
The pet~t~oner subsequently filed an appeal. The director decllned to treat the appeal as a motion and 
forwarded the appeal to the AAO for revlew. On appeal, counsel for the petitloner asserts that the d~rector 
tncorrectly appl~ed the law regarding "functional managers," and clatms that the petitloner subm~tted 
sufficient evidence to establlsh the beneficiary's eliglblllty. Counsel submlts a bnef m support of the appeal. 
To establlsh el~gtbility for the L-1 nonlmmigrant vlsa class~ficat~on, the pettttoner must meet the crlterta 
outlined m sectlon 101(a)(15)(L) of the Act. Spec~fically, a qual~fylng organ~zatton must have employed the 
beneficlary In a quallfylng managenal or executlve capaclty, or In a spec~alized knowledge capaclty, for one 
continuous year wlthin three years precedlng the benefic~ary's apphcation for admission tnto the Unlted 
States. in addttion, the beneficlary tnust seek to enter the Unlted States temporartly to contlnue rendering h~s 
or her services to the same employer or a subsid~ary or affihate thereof In a rnanagenal, executlve, or 
spec~altzed knowledge capac~ty. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an tndtv~dual petltion filed on Form 1-129 shall be 
accompanied by: 
(I) Evidence that the petitioner and the organizat~on whlch employed or will employ the 
alien are quallfylng organlzatlons as defined in paragraph (l)(l)(ii)(G) of th~s section 
(11) Evidence'that the allen w~ll be employed m an executlve, rnanagenal, or specrallzed 
knowledge capactty, ~ncluding a deta~led descr~pt~on of the servlces to be performed. 
(In) Ev~dence that the allen has at least one conttnuous year of full t~me employment 
abroad with a quallfylng organlzatlon wlthin the three years precedlng the filtng of 
the petition. 
(tv) Evldence that the alien's prior year of employment abroad was m a posltlon that was 
rnanagenal, executive or Involved specialized knowledge and that the ahen's prlor 
educatton, tralnlng, and employment qualifies hlm/her to perform the intended 
SRC 04 099 50164 
Page 3 
services in the Un~ted States; however, the work in the Un~ted States need not be the 
same work which the alien performed abroad. 
At issue In the present matter is whether the benefic~ary w~ll be employed by the Un~ted States ent~ty In a 
manager~al capacity. The petitioner does not cla~m that the benefic~ary will be employed In an executive 
capacity. 
Sect~on 101 (a)(44)(A) of the Act, 8 U.S.C. 9 1 101 (a)(44)(A), defines the term "managenal capac~ty" as an 
ass~gnment w~th~n an organization in wh~ch the employee pnmanly: 
(1) manages the organizatlon, or a department, subd~vis~on, function, or component of 
the organ~zat~on; 
(11) supervlses and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential funct~on w~thin the organizat~on, or a department 
or subd~v~slon of the organizatlon; 
(111) ~f another employee or other employees are directly superv~sed, has the authonty to 
hire and fire or recommend those as well as other personnel act~ons (such as 
promotion and leave author~zat~on), or if no other employee is d~rectly superv~sed, 
functions at a senior level within the organ~zat~onal hierarchy or w~th respect to the 
funct~on managed; and 
(IV) exercises dlscretton over the day to day operat~ons of the activ~ty or function for 
which the employee has authonty. A first 11ne supervtsor IS not constdered to be 
acting in a managerlal capac~ty merely by v~rtue of the supervisor's supervisory 
dutles unless the employees superv~sed are profess~onal. 
The petit~on was submitted on February 19, 2004. On the L Classificat~on Supplement to Form 1-129, the 
petitloner descnbed the beneficiary's proposed duties as: 
D~rect and manage expanston plan tnto the Southeastern Un~ted States Develop sales 
expanslon goals and policres. As presence in the reglon grows, will take on respons~b~lity for 
and supervision of sales team comprised of profess~onal agronomic spec~alists. 
In an appended letter dated February 13,2004, the pet~t~oner further descnbed the benefic~ary's proposed role 
as the company's development manager: 
[W]e require the servlces of [the benefic~ary] in the pos~tion of Development Manager to 
dlrect and manage an expansion plan into the Southeastern Un~ted States In this regard, he 
w~ll draw on h~s executive and manager~al expertise In develop~ng and managtng sales 
expanslon operat~ons w~th our company's proprietary products In Brazll. It 1s essent~al that 
we contlnue to grow and Increase our presence m this country. As such, our development 
SRC 04 099 50 164 
Page 4 
operat~ons are cnt~cal to the success of our busmess in the Un~ted States. [The beneficiary] 
wlll play a key role m thrs progress and w~ll operate at a senior level w~thin our executlve and 
management structure. serving as the most senior official res~onsible for develo~ment in the 
southeastern Un~ted States and reporting directly to the ~ha~rman of France. 
Spec~fically, he will develop pol~c~es and goals for expansion into the Southeast and w~ll 
consult w~th senior executives to coordinate long-term planning for the department. He will - - 
also ensure the - methodologies and procedufes'are implemented 
appropriately in the United States. [The beneficiary] will have wide discretion in overseeing 
the ~mplementat~on of the expanslon plans. He w~ll estabhsh contacts in the Un~ted States, 
d~scuss partnerships and establish commercial relat~onsh~ps. Further, he w~ll allocate the 
majonty of h~s time to executive and managerial responsib~lit~es. As the company's presence 
In the reglon grows, [the beneficiary] will take on respons~billty for form~ng and managlng a 
sales team compr~sed of agronomlc speclal~sts. At that time, he wtll have personnel authority 
over these employees, Including responsibility for h~nng, finng and other actions. 
On March 1, 2004, the director Issued a request for add~tlonal ev~dence, Instructing the pet~tloner to prov~de 
copies of Quarterly Wage Reports for all employees from 2003, and an organlzatlonal chart for the U.S 
company, spec~fy~ng the benefic~ary's pos~tlon w~th~n the organ~zat~onal h~erarchy, as well as the names, job 
titles, and dut~es of the employees the benefic~ary supervises. 
In a response dated March 11, 2004, the petitloner, through counsel, prov~ded the requested organizational 
chart dep~ct~ng the benefic~ary's proposed poslt~on as development manager overseeing a sales team of five to 
ten proposed employees The pet~t~oner's organ~zational chart also shows a sales department w~th a vlce- 
pres~dent who reports to the chief executlve officer, a manager, a sales manager, two temtory managers, and 
fifteen sales personnel. However, the benefic~ary and h~s proposed sales team are dep~cted as report~ng 
dlrectly to the cha~rman of T~mac SA in France. The follow~ng statement from counsel accompan~ed the 
organ~zat~onal chart: 
We presume that you have requested thls chart to clarify the benefic~ary's prospect~ve 
managerlal posltlon in the Unlted States. Please note that the beneficlary qual~fies as an L-IA 
funct~onal manager since he wlll be servlng as the most senlor manager In the U.S. 
respons~ble for the cnt~cal function of developing the company's expanslon Into the 
Southeastern United States, report~ng to the Cha~rman of the parent company In France . . .. 
Further, as the benefic~ary expands the company's presence in the reglon, he w~ll be 
respons~ble for h~nng agronomic spec~al~sts to form the reg~onal sales team, over wh~ch he 
w~ll hold managerial respons~bllity. 
The petitloner submitted a pos~t~on descnptlon for an "agricultural group field representative" not~ng that the 
"agronomlc speclallsts" h~red by the benefic~ary would perform the described dut~es. The petitioner also 
subm~tted the requested quarterly wage reports for 2003, which confirm employment of a total of 43 
employees at the end of the year. 
SRC 04 099 50 164 
Page 5 
On March 26, 2004,,the director denied the petition concluding that the petitioner did not submit sufficient 
evidence to establ~sh that the beneficlary wlll serve In a managerial or executive capacity. The dlrector noted 
that the benefic~ary's subordinates had not yet been hlred, and concluded: "The beneficiary will evidently . 
exerclse d~scretion over the day-to-day operations of the activity, but it must be noted that he will also 
perform much of the activ~ty and w~ll not supervise profess~onal employees." The drrector observed that the 
petrtloner has not demonstrated that the benefic~ary's pnmary assignment wlll be directrng the management of 
the organization nor that he will be prlmarlly directing or supewls~ng a subordinate staff of profess~onal, 
managerral or supervisory personnel who will relieve him from performlng non-qual~fying dut~es. 
On appeal, counsel for the petitioner contends that the director's decision contains numerous legal and factual 
errors, clear m~sstatements of the statutory and regulatory language, and misstatements of the facts involved 
In thls case. Counsel again emphasizes that the beneficiary's proposed posltlon is that of a functional manager 
w~th responsrbillty to "develop the pollcles, marketing d~rectives and sales force for expanding the con~pany's 
buslness In the Southeastern Unlted States " Counsel contends that the dlrector's decrslon addresses new 
lssues that were not ~ncluded In the duector's request for evidence, specifically, that the petitioner had notV, 
established that the beneficlary will be a functlon manager or that he will not be performlng sales or service 
tasks. Counsel argues that it was lnapproprlate for the d~rector to deny the petitlon wlthout first requesting 
additional evidence to clanfy the beneficiary's job duties or the "functlonal managerial nature of the 
posltlon." 
Counsel further asserts that the director misstated the "functlonal manager" standard by requinng that the 
beneficlary have a subordinate staff, noting "the entire purpose of the functronal manager category IS to 
Include managers who do not supervise other employees but who hold managenal responslb~lity over a 
cr~tlcal component of the company " Counsel also dlsputes the dlrector's conclus~on that the beneficlary 
would be performing tasks to produce a product or provide services, observing that the director- did not 
elaborate on his asseition or identify any job duties that would .involve performing sales or service activities. 
counsel argues that the director also inappropriately applied criteria for "executive capacity" and 
"supervisory managers" which are not relevant to this petition, as the beneficiary will serve as a function 
manager. Specifically, counsel notes that there is no requirement that the beneficiary be shown to "direct the 
management of the organization" or to "direct or supervise a subordinate staff of professional, managerial or 
supervisory personnel." 
Flnally, counsel refers to the petitioner's February 13, 2004 letter submitted In support of the peht~on and 
concludes: 
In summary, this letter shows that the Benefic~ary will be performing managerlal dut~es In 
coordlnatlng the estabhshment and development of the Southeastern expansion. In addition, 
the organlzatronal chart . . . shows that the U.S. offices have sufficient personnel to provlde 
any needed support for the Benefic~ary while he establ~shes the corporate drrection for this 
new buslness. Further, once the new buslness is operational, the company letter clarifies that 
the beneficlary will be responsible for hinng and managlng a team of agonomlc speclal~sts to 
perform the sales and service tasks of the business. 
SRC 04 099 50 164 , 
Page 6 
' 
Upon reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been 
or will be employed in a managerial capacity. When examining the executive or managerial capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2()(3)(). The petitioner's description of the job dutils must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. ld. While the petitioner has conBistently claimed that the beneficiary will serve in a managerial 
. . capacity, specifically as a "function manager,!' the petitioner's descnption of. the beneficiary's duties is 
general. It is not possible to determine from the description provided whether the beneficiary's duties are 
primarily managerial' duties or whether the beheficiary's duties will involve the routine daily tasks associated 
with sales and market research that are inherent.in the beneficiary's responsibility for establishing a new sales 
territory for the petitioner. The position descnption provided does not sufficiently demonstrate that the 
beneficiary's tasks are the high-level responsibilities that are specified in the definition of managerial 
capacity. See section :101(a)(44)(~) of the Act, 8 U.S.C. tj 1101(a)(44)(A). 
For example, the petitioner states that the beneficiary will "develop policies and goals for expansion," 
"consuit with senior executives to coordinate long-term planning," "ensure that Groupe Roullier systems, 
methodologies and procedures are implemented appropriately," and "have wide discretion in overseeing the 
implementation of expansion plans." The petitioner does not, however, define the beneficiary's policies, goals 
or' plans, or identify what specific efforts the beneficiary will undertake to achieve these vague objectives. 
Furthermore, although counsel objects to the director's reference to the definition of "executive capacity" in 
her decision, the AAO notes that portions of the beneficiary's job description merely paraphrase the statutory 
definition of "executive capacity." See section 101 (a)(44)(B), 8 U.S.C. 5 1 10 1 (a)(44)(B). Paraphrasing the 
statutory definitions or reciting the beneficiary's vague job responsibilities and broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
The petitioner has failed to answer a critical question in this case: What will the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Suvu, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afld, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner ~ndicated that the beneficiary will also "establ~sh contacts in the United States, discuss 
partnersh~ps and establ~sh commerc~al relat~onships." Yet without add~t~onal explanation, these 
responsibilit~es suggest that some portion of the beneficiary's tlme w~ll necessarily be devoted to non- 
quallfylng dut~es related to researching the market and potential customers in the ass~gned reglon. 
Regardless, the petitloner d~d not sufficiently dist~nguish establ~sh~ng "contacts," and "commercial 
relat~onships" from the sales duties to be performed by the benefic~ary's proposed subord~nates, nor d~d ~t 
ind~cate who would perform rout~ne sales tasks In the region prlor to the hinng of add~t~onal employees to 
staff the pet~t~oner's new Flonda locat~on, ~f not the beneficiary. Go~ng on record w~thout support~ng 
documentary ev~dence is not sufficient for purposes of meeting the burden of proof in these proceed~ngs. 
Mufter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (c~ting Matter of Treasure Craft of California, 14 
I&N Dec 190 (Reg. Comm. 1972)). 
Whlle perform~ng non-qualifying tasks necessary to produce a product or servlce w~ll not automat~cally 
disqualify the benefic~ary as long as those tasks are not the majority of the benefic~ary's dutles, the pet~t~oner 
st111 has the burden of establ~sh~ng that the beneficiary IS "pnmarily" performing managerial or executive 
SRC 04 099 50164 
Page 7 
dut~es. Sect~on 101(a)(44) of the Act. Whether the benefic~ary is an "actlv~ty" or "funct~on" manager turns In 
part on whether the petltioner has sustained ~ts burden of establ~shlng that his dut~es are "pnmarlly" 
managenal. 
In ihe present matter, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner'merely stated: "[Hle will 
allocate the majority of his time to executive and managerial responsibilities." This statement is not sufficient. 
The petitioner lists the beneficiary's duties as managerial, but it fails to quantify the time the beneficiary will 
spend on them. This. failure of documentation is important because as noted above, several of the 
beneficiary's daily tasks do not fall directly .under traditional managerial duties as defined in the statute. 
Absent a clear and credible breakdown of the time spent by the beneficiary performing his duties, the AAO, 
cannot determine what proportion of his duties would be managerial or executive, nor can it .deduce whether 
the beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. US. Dept. of . , 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). . , 
On appeal, counsel repeatedly emphasizes that the beneficiary is clearly a functional manager 'and objects to 
the director's conclusion that the detitioner had not established that the beneficiary will supervise a staff of 
supervisory, managerial or professional employees. However, the director's analysis- was appropriate given 
the petitioner's claim that the beneficiary was expected to hire and supervise a staff of five to ten "agronomic 
specialists" following the approval of the petition. Although the beneficiary is not requi;ed to, supervise 
,personnel, if it is claiined that his duties involve supervising employees, the petitioner must establish that the 
subordinate employees are supervisory, professional, or managerial. See 4 101(a)(44)(A)(ii) of the Act. The 
petitioner has not established that the employees to be hired would possess or require a bachelor's degree, 
such that they could be classified as professionals. Nor has the petitioner shown that either of these 
employees would supervise subordinate staff members or manage a clearly defined department or function of 
the petitioner, such that they could be classified as managers or supervisors. 
The AAO will next turn to counsel's prlmary argument that the beneficlary quahfies for L-IA class~ficat~on 
as a "funct~on manager." The term "functlon manager" apphes generally when a beneficlary does not 
supervise or control the work of a subordinate staff but Instead IS pnmanly respons~ble for managlng an 
"essent~al functlon" w~th~n the organlzatlon See sectlon IOl(a)(44)(A)(u) of the Act, 8 U.S.C. 
5 1101(a)(44)(A)(11). The term "essentlal funct~on" is not defined by statute or regulat~on. If a petlttoner 
clalms that the benefic~ary is managlng an essent~al functlon, the petlttoner must prov~de a detalled job 
descnptlon that ~dentlfies the functron wlth speclfic~ty, art~culates the essentlal nature of the functlon, and 
establishes the proportion of the benefic~ary's dally dut~es attr~buted to managlng the essent~al funct~on. 
8 C.F R. 9 214.2(1)(3)(11). In add~tion, the pet~t~oner's descr~pt~on of the benefic~ary's dally dut~es must 
demonstrate that the beneficlary manages the functlon rather than performs the dut~es related to the functlon. 
An employee who pnrnar~ly performs the tasks necessary to produce a product or to provlde services 1s not 
cons~dered to be employed In a managerla1 or executive capacity. Boyang, Ltd v. INS., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Clr, 1995)(cltlng Matter of Church Scleniology Internationa[, 19 I&N Dec. 593, 604 
(Comm. 1988)). As discussed above, the petlt~oner has not prov~ded a deta~led job descrlptlon nor submitted 
ev~dence to establish that the benefic~ary w~ll pnmarlly manage the functlon of establlshlng a new sales 
territory. 
SRC 04 099 50164 
Pagc 8 
The AAO acknowledges counsel's assertion that the dlrector mtsstated the "functtonal manager" standard by 
requiring that the benefic~ary have a subordinate staff, notlng "the entlre purpose of the functtonal manager 
category 1s to include managers who do not supervlse other employees but who hold managertal 
respons~btltty over a crlttcal component of the company." In such a s~tuatlon, the AAO recognizes that other 
employees carry out the functtons of the organtzat~on, even though those employees may not be dlrectly under 
the funct~on manager's supervlston. The add~tion of the concept of a "functton manager" by the Immtgratlon 
Act of 1990 (IMMACT 90) stmply elimtnates the requtrement that a benefictary must dtrectly supervlse 
subordtnate employees to establtsh management capaclty. However, as tn Matter of Church Sc~entology, the 
statutory requirement that a beneficlary "pr~mar~ly" perform m a managenal or executlve capaclty conttnues 
to be a valtd precedent. Moreover, federal courts contlnue to give deference to CIS'S lnterpretatlon of 
IMMACT 90 and the concept of "funct~on manager," espec~ally when considenng indiv~duals who pnmarlly 
conduct the buslness of an organ~zatlon or when the petlttoner falls to establtsh what proport~on of an 
employee's dut~es m~ght be manager~al as opposed to operat~onal. See Boyang Ltd. v. INS, 67 F.3d 
305(Table), 1995 WL 576839 at *5 (9' Clr. 1995)(unpubllshed) (cttlng to Matter of Church Scientology Int 'I 
and findlng an employee who pnmarlly performs operatlonal tasks 1s not a manager~al or executlve 
employee); see also, IKEA US, Inc v. US. Dept of Justzce, 48 F. Supp. 2d at 24; Republic of Transkez v INS, 
923 F.2d 175, 177 (D.C.Ctr. 1991). 
As discussed above, the petitioner has provided a vague job description that fails to convey an understanding 
of the actual duties he will perform on a daily basis or the amount of time he will devote to managerial duties 
related to managing the assigned function:Beyond the required description of the job duties, CIS reviews.the 
totality of the record when examining the claimed managerial capacity of a beneficiaj, including the 
petitioner's organizational structure, the duties of the beneficiary's subordinate employees,, the presence of 
other employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of ,a beneficiary's actual 
duties and role in a' business. In the case of a hnction manager, where no subord~nates are directly 
supervised, these other factors may include the beneficiary's position within the organizational hierarchy, the 
depth of the petitioner's organizational structure, the scope of the beneficiary's authorityand its impact on the 
petitioner's operations, the indirect supervision of employees within the scope of the functionmanaged, and 
the value of the budgets, products, or services that the beneficiary manages. 
Counsel's clatm on appeal that "the U.S. offices have sufficient personnel to provlde any needed support for 
the Beneficiary whtle he establishes the corporate dlrect~on for thls new buslness," IS not supported by the 
record. The benefic~ary wtll be work~ng at an office located In Flonda. The pet~t~oner's quarterly tax returns 
show that all of ~ts other employees are located in Pennsylvanta, Wlsconsln and New York. and the pet~t~oner 
has not adequately explatned how they will reheve the benefic~ary from performing all the day-to-day 
operatlonal dut~es assoctated w~th establishing a new sales office and temtory m the Southeastern Un~ted 
States. Again, golng on record without supporting documentary ev~dence IS not suffictent for purposes of 
meetlng the burden of proof In these proceedings. Mutter of Soffic~, 22 I&N Dec. at 165. 
Further, when reviewtng the totallty of the record, the evldence must substantlate that the duties of the 
beneficlary and hts or her subord~nates correspond to thelr placement in an organ~zatton's structural hierarchy. 
SRC 04 099 50 164 . 
Page 9 
The petitioner claims that the beneficiary would function essentially autonomously from the remainder of the 
U.S. company, reporting only to the chairman of a French parent company rather than to any higher level 
executives within the U.S. company, notwithstanding the petitioner's employment. of a large sales 
organization that ultimately reports to the company's chief executive officer. Although the beneficiary is 
placed at a senior, level on the petitioner's organizational chart, it is not clear how his role as "development 
manager" responsible for a sales territory and first-line supervision of a sales team would ultimately differ 
from that of a "territory manager;" a position which is located significantly lower in the 
.organizational hierarchy. 
The record does not establish that a majority of the beneficiary's duties will be primarily managing an' essential 
function of the organization. The record indicates that a prepond&ance of the beneficiary's duties will, 
at least in~tially, be operational duties necessary to establish a new sales tenitory in.his assigned region. An 
employee who prim&ily 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 (Cornm. 1988). Although the petitioner claims that the beneficiary's department or temtory 
will be staffed in the future, the petitioner must establish eligibility at the time of filing the nonimmigrant visa 
petition. A visa petition may not be approved based on speculation of future eligibility or after the petitioner 
or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Based on the evidence 
furnished, it cannot be found that the beneficiary will be employed primarily in a qualifying managerial or 
executive capacity. ~br this reason, the appeal will be dismissed. 
In vlsa pet~t~on proceed~ngs, the burden of provlng elig~bllity for the benefit sought remalns entlrely wlth the 
pehtloner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, the petlt~oner has not sustained that burden 
Accordingly, the director's declsion w11 be affirmed and the pet~tton will be denled. 
ORDER: 'Ike appeal 1s d~sm~ssed.