dismissed L-1A Case: Auto Dismantling

U.S. Department of Homeland Securi9 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 07 246 5 1940 Office: VERMONT SERVICE CENTER Date: JUN @ 2 2008 
Petition: 
 Petition for a Nonim~ligrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1101(a)(15)(L) 
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. 
.- 
*>----7Y 
, Robert P. Wiemam, Chief 
:ff) 
Administrative Appeals Office 
EAC 07 246 5 1940 
Page 2 
DISCUSSION: The Director, Vermont Senlice Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petitio~i seeking to enlploy the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 I (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a Delaware limited liability company, is described as an "auto 
dismantling, exporting, and resale" business. It claims to be an affiliate of Rainbow Auto Dismantling, LLC 
located in Yerevan, Armenia. The petitioner seeks to employ the beneficiary as its operations manager for a 
three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner disputes the director's 
decision and asserts that the petitioner established that the beneficiary will manage an essential hnction of the 
U.S. company. Counsel emphasizes that the petitioner submitted a business plan which demonstrates that 
additional employees will be hired within one year, tltus elevating the beneficiary in a purely managerial role. 
Counsel submits a brief, but no additional evidence, in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which enlployed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
EAC 07 246 5 1940 
Page 3 
education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The sole issue addressed by the director is t[ hether the petitioner established that the beneficiary would be 
employed by the United States entity in a managerial capacity. The petitioner does not claim that the 
beneficiary would be employed in an executive capacity. 
Section 101(a)(44)(A) of the Act, 8 IJ.S.i'. ji 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or reconunend 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 hnction 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. 
The nonirnmigrant petition was filed on Augilst 28, 2007. The petitioner indicated on Form 1-129 that the 
beneficiary would serve as the operations inanager for the U.S. company and stated that it has one employee. 
In a letter dated August 17, 2007, the petitioner described the beneficiary's proposed duties as follows: 
As Operations Manager of [the petitioner], [the beneficiary] will have ultimate authority over 
day-to-day operational functions of the company and all subordinate personnel involved in 
the performance of these functions. 7 he Operations manager will have high-level executive 
decision-malung authority, and the operational functions of the company will be under his 
direct management. 
The Operations Manager will oversee all day-to-day operations functions including 
automotive transport, overhaul, papenvorkladministrative, logistics, customs clearances, and 
fleet management & maintenance as well as management of personnel involved in these 
tasks. He will handle the financial administration of these functions and will have almost 
EAC 07 246 5 1940 
Page 4 
complete authority over allocation of his allotted budget in order to accomplish the tasks 
necessary to functions which are his responsibility. 
The Operations Manager will have primary responsibility for negotiation of vendor contracts 
where external services are required by the company to complete operation of these 
fbnctions. The individual occupying the Operaticns Manager position will have the final say 
in all corporate decisions relating to the day-to-day operations, subject only to minimal and 
periodic oversight by the President of the company. 
It is expected that within a year of entry, the Operations Manager will by [sic] managing not 
only the operations function but also subordinate personnel such as a Dismantling Specialist 
(a planned hire within a year under our current business plan) and a professional-level 
employee, a Records Administrator (another planned hire part of whose time will be devoted 
to supporting Operations and [the beneficiary's] Operations Management functions). As 
business grows, it is highly likely that another seini-professional employee, a Car Parts 
Specialist, will be hired to ha~ldle inventory control under the Operations Manager's 
supervision. With regard to these position and all future subordinate operations personnel, the 
Operations Manager will directly handle recruitment, interviewing, hiring, compensation, 
evaluation/feedback, training, leave approval, discipline and firing. 
The Operations Manager will report directly to the undersigned as President of the company, 
with no intermediate management o- line of accountability in between. The Operations 
Manager has the ultimate authority over all operational personnel, subject only to the general 
direction from [the] President. 
The petitioner also submitted a business plan for the U.S. cornpany which included a personnel plan for the 
years 2007 through 2009. The petitianer indicated that its staff for 2007 would include the ownedgeneral 
manager, a manager, a sales manager, a sccretary/records administrator, a dismantling specialist and one 
"other" employee. An organizational chart for the petitioner depicted a total of three employees, including the 
president, a sales manager and the beneficiary':; proposed position. 
The director issued a request for additional evidence on September 1 1, 2007, advising the petitioner that it had 
not shown that the beneficiary would be employed a sellior level within the organizational hierarchy other 
than in position title. The director also found insufficient evidence that the beneficiary would supervise and 
control the work of subordinate supervisory, professional or managerial employees who would relieve him 
from performing the services of the corporation. The director requested additional evidence to establish that 
the beneficiary would supervise bona fidt: managers or professionals in his role as operations manager. 
In a response dated September 20, 2007. the petitioner explained that the beneficiary will be employed in a 
managerial capacity, noting that he wouid rnanage the "Operations function, which includes automotive 
transport, overhaul, papenvorWadininistrdt1ve, logistics, customs clearances and fleet management & 
maintenance." The petitioner stated that tile beneficiary bould also manage personnel involved in these tasks 
when such personnel are hired. 
EAC 07 246 5 1940 
Page 5 
The petitioner further explained that the operations function is an essential function because the business 
derives its income entirely from the reconditioning, resale and dismantling of automobiles. The petitioner 
emphasized that since the beneficialy will manage an essential fknction and discrete department of the 
business, the petitioner need not establish that he will supervise and control the work of supervisory, 
professional or managerial subordinates. 'The petitioner's president further described the beneficiary's 
responsibilities as follows: 
The Operations Manager functions at a senior level within the organizational hierarchy or 
with respect to the function managed. The individual occupying the Operations manager 
position has the final say ill all decisions relating to the day-to-day operations of the 
company. The Operations Manager has primary responsibility for negotiation of vendor 
contracts (such as, for example, towing services) where external services are required by the 
company to complete operation of these functions. While I, as President, have the right to 
overrule the decisions of the Operations Manager, I have designed the position to be 
primarily independent and expect to provide only minimal supervision. However large our 
company grows - and we do plan to grow substantially - The Operations manager will 
continue to report only to myself as President and be the sole individual with day-to-day 
management responsibility for the Operations division and operations functions of the 
company. . . . 
The Operations Manager exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. As discussed above, the Operations Manager 
has almost absolute discretion and authority over the Operations function, and operates with 
only the slightest supervision from the undersigned as President of the company. While we 
acknowledge that, if the proposed L-1 A position is to be a first-line supervisor of subordinate 
employees, 8 C.F.R. 214.2(1)(1)(ii)(B)(4) requires that the employees supervised are 
professional, there is no requirement that the proposed L-1A position be a first-line 
supervisor of subordinate employees at all! Here the proposed L-1A employment will be in 
the future include first-line supel.vision, but does not at this point - even will at all times 
include the exercise of discretion over the day-to-day operations of the activity or function for 
which the employee has authority. 
The petitioner fbrther emphasized that it currently has two employees, a president and a sales manager, and 
not one employee, as stated in the request for evidence. The petitioner noted that the company plans to hire 
two additional employees in 2008, one of which would report directly to the beneficiary. 
The director denied the petition on October 8, 2007, concluding that the petitioner had failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity. In denying the petition, 
the director found that the petitioner had failed to establish that the beneficiary would be employed in a 
managerial capacity, other than in position title, as the petitioner had not established that he would manage an 
essential function or that he would manage a subordinate staff of supervisory, managerial or professional 
EAC 07 246 5 1940 
Page 6 
employees. The director further found that the petitioner's "one-person automobile shop" would not require a 
bona fide manager to perfom the listed duties on a full-time basis and instead concluded that the beneficiary 
would be engaged in the non-managerial, day-to-day operations of the petitioner's business. Finally, the 
director observed that the beneficiary's proffered salaly is "incongruous with that of an employee who is 
actually managing other bnna fide managers or professionals." 
On appeal, counsel for the petitioner asserts that the director erred in denying the petition and provided "very 
little substance in terms of a basis for this denial." Counsel re-iterates the petitioner's claim that the 
beneficiary will manage an essential function of the organization and that he will function at a senior level 
within the petitioner's organizational hierarchy. Counsel asserts that the director ignored the submitted 
organizational chart and position description and did not adequately explain why the submitted evidence 
failed to establish the beneficiary's eligibility as a function manager. 
In addition, counsel contends that the petitioner has ignored the petitioner's business plan and its intent to hire 
at least one full-time subordinate for the beneficiary within one year. Counsel firther argues that the 
beneficiary's salary cannot serve as the basis for the denial of the petition. Finally, counsel objects to the 
director's finding that the petitioner's "one-person automobile shop" would not support a bona fide managerial 
position, claiming that "this statement indicates a fundamental misunderstanding of the nature of the business 
and contains an outright misstatement of fact." Counsel emphasizes that the business has two employees and 
is not merely a "car repair garage," but rather is "engaged in the global purchase, export and resale of whole 
automobiles and automobile parts." 
Counsel concludes with the following statement: 
[Tlhe Operations manager would be ellgaged in the management of a function of the business 
- the operations function - which involves responsibility for ensuring that all work involved 
with this function is handled. While initially the Operations Manager may have direct 
involvement in day-to-day activities for this still relatively-new business (founded in early 
2006), the Business Plan presented clearly contemplates the hiring of additional personnel to 
take on the day[-]to[-]day tasks within a year thus leaving the Operations Manager in a purely 
oversight (i.e.: managerial) role. [The petitioner] therefore does in fact require the services of 
an Operations Manager. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary 
would be employed in a primarily managerial capacity. However, upon review of the director's decision, the 
AAO agrees that the reasons given for the denial are conclusory with few specific reference to the evidence 
entered into the record. The AAO also concurs with counsel that the director's determination that the 
beneficiary's salary is "incongruous" with a managerial position is not supported by the statute and 
regulations, which contain no salary requirements for L- 1 beneficiaries. Accordingly, the director's comment 
in this regard is withdrawn. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
EAC 07 246 5 1 940 
Page 7 
decision except as it may limit the issues 011 notice or by rule."); see also, Jnnka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). 'The AAO's dc novo authority has been long recognized by the 
federal courts. See, e.g. Dor 17. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). Therefore, the AAO will address 
the petitioner's evidence and eligibility herein. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. S'ed 8 C.F.R. 4 21 4.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary perfoms the high-level respo~lsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary pr.itnavi/y perfom~s these specified responsibilities and does not spend a 
majority of his or her time on day-to-day frlnctions. Chlznzpion H'ovld Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). While the petitioner claims that the beneficiary will manage the 
petitioner's operations function, the petitioner has failed to establish that the beneficiary's actual duties would 
be primarily managerial in nature. 
In this matter, the petitioner's description of the beneficiary's duties was too general to convey any 
understanding of what managerial duties he would perform on a day-to-day basis. For example, the petitioner 
indicated that the beneficiary will "have ultimately authority over day-to-day operational functions," "oversee 
all day-to-day operations functions," and "have high-level executive decision-making authority" with minimal 
supervision from the petitioner's president. These statemerits merely paraphrase portions of the statutory 
definitions of managerial and executive capacity. See sections 101(a)(44)(A) and (B) of the Act. Conclusory 
assertions regarding the beneficiary's employtnetlt capacity are not sufficient. Merely repeating the language 
of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), clfj'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). 
The petitioner clarified that the "day-to-day ogerations functions" of the company include "automotive 
transport, overhaul, paperw orkladm~n~strat ~vr, logist~cs, customs clearances, and fleet management & 
maintenance" activities. However, the pet~tioner failed to establish that it currently has any employees who 
would relieve the beneficiary from perfomlung non-managerial duties associated with these functions, and 
otherwise failed to explain how he would accnmnpl~sh the management of the function on a day-to-day basis. 
If the beneficiary himself is responsible for adminlstrat~ve tasks and personally making arrangements for the 
transport, overhaul, and maintenance act~vities of the company, it is reasonable to conclude that he will be 
primarily performing the duties necessary to prov~de a servlce, rather than managing these functions. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed ~n a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one  primar rill^" perfoml the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int 'I. 19 I&N Dec. 593,604 (Comm. 1988). 
EAC 07 246 5 1940 
Page 8 
The remainder of the beneficiary's position description includes supervisory duties which are clearly 
prospective in nature. As of the date of filing, the beneficiary would have no subordinate staff in his role as 
operations manager. On appeal, counsel states that the beneficiary "may have direct involvement in day-to- 
day activities for this still relatively-new business," and confirms that the position will be a "purely oversight 
(i.e.: managerial) role" within one year. The petitioner must establish eligibility at the time of filing the 
nonirnmigrant visa petition. A visa petition ]nay not be approved based on speculation of future eligibility or 
after the petitioner or beneficiary becornes eliglble tinder a new set of facts. See Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Conlm. 1978); Matter of K(:rrtighuk, 14 I&N Dec. 45, 49 (Comm. 1971). 
Accordingly, the petitioner's future hiring plans need not be taken into account. The record demonstrates 
that, as of the date of filing, the beneficiary would be responsible for performing essentially all duties 
associated with the petitioner's operations function, which would necessarily include a number of non- 
qualifying duties. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 1108. 
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 101(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 establishing that his duties are "primarily" 
managerial. 
In the 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. This failure of documentation is 
important because as noted above, several of the beneficiary's daily tasks would 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 ~t deduce whether the beneficiary is primarily performing the 
duties of a hction manager. See Ik3-A LiS, Inc. v. C'I'T. Ucpt. of Ju~tice, 48 F. Supp. 2d 22, 24 (D.D.C. 
1999). 
The AAO will next turn to counsel's primary argument that the beneficiary qualifies for L-1A classification 
as a "function manager." The term "funct~on manager" applies generally when a beneficiary does not 
supervise or control the work of a subord~nate staff but instead is primarily responsible for managing an 
"essential function" within the organization. Sec section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
3 1101(a)(44)(A)(ii). The term "essential function" is not uefined by statute or regulation. If a petitioner 
claims that the beneficiary is managing an essential functicn, the petitioner must provide a detailed job 
description that identifies the function with spec~fic ty, articulates the essential nature of the function, and 
establishes the proportion of the beneliciary's daily duties attributed to managing the essential function. 
8 C.F.R. 8 214.2(1)(3)(ii). In addition. the petitioner's descr~ption of the beneficiary's daily duties must 
demonstrate that the beneficiary manngc,s the function rather than pe~fvnns the duties related to the function. 
An employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Boynng, Ltd. v. I.N.S., 67 F.3d 305 (Table), 
EAC 07 246 5 1940 
Page 9 
1995 WL 576839 (9th Cir, 1995)(citin:: !Cl~~iti~r of Chztr('h Sc~ielztologi International, 19 I&N Dec. 593, 604 
(Comm. 1988)). 
Beyond the required description of the job duties, CIS reviews the totality of the record when examining the 
claimed managerial or executive capacity of n beneficiary. including the petitioner's organizational structure, 
the duties of the beneficiary's subord1na;e en~ployees. thc 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 understandiilg of a beneficiary's actual duties and role in a business. In the 
case of a function manager, where no subord~nates are d~rectly supervised, these other factors may include the 
beneficiary's position within the organization;il hierarchy, the depth of the petitioner's organizational structure, 
the scope of the beneficiary's authority and 'IS impact on the petitioner's operations, the indirect supervision 
of employees within the scope of the functiol- managed, and the value of the budgets, products, or services 
that the beneficiary manages. 
As discussed above, the petitioner has provided a vague job description that fails to convey any understanding 
of the actual duties the beneficiary will perfc)rm on a daily basis or the amount of time he will devote to 
managerial duties related to managing the assigned function. Nor has the petitioner established that the 
beneficiary would knction at a senior level urithifi the petitioner's organizational hierarchy. The petitioner 
operates a service-oriented business with a pi esident and a sales manager, and no subordinate administrative 
or operational staff. The fact that the benefic,ary will report to the president and be solely responsible for the 
"operations function7' is insufficient to es,labI~>tl that he will truly act as a function manager. 
In the case of a function manager, the AAO recognizes that other employees carry out the functions of the 
organization, even though those employees may not be directly under the hnction manager's supervision. It 
is the petitioner's obligation to establish that the day-to-day nun-managerial tasks of the function managed are 
performed by someone other than the benefi ciiiry. The addition of the concept of a "function manager" by the 
Immigration Act of 1990 simply eliminates the req~iienlznt that a beneficiary must directly supervise 
subordinate employees to establish managerial capacity. Despite the changes made by the Immigration Act of 
1990, the statute continues to require that an irldiwidual "primarily" perfoolm managerial or executive duties in 
order to qualify as a managerial or executil~e enlployee under the Act. The word "primarily" is defined as "at 
first," "principally," or "chiefly." JYeh.srei-'~s .ii Nt.11: Coiicge Dictioncrrv 877 (2001). Where an individual is 
"principally" or "chiefly" performing the tasks necessary to produce a product or to provide a service or other 
non-managerial, non-executive duties, tha~ individual cannot also "principally" or "chiefly" perform 
managerial or executive duties. 
Moreover, federal courts continue to give ciei~rence to CIS'S interpretation of the Immigration Act of 1990 
and the concept of "function manager," especially %.hen considering individuals who primarily conduct the 
business of an organization or when the petitioner fails to establish what proportion of an employee's duties 
might be managerial as opposed to optx-ational. Sec Roycrng Ltd. v. IiYS, 67 F.3d 305(Table), 1995 WL 
576839 at *5 (9"' Cir. 199S)(unpublisned):citing to hfattcr- qf' C'lztlvch Scientology Int'I and fmding an 
employee who primarily performs operatio~~al tasks is nor a managerial or executive employee); see also, 
IKEA US, Inc. v. U.S. Dept. ofJustice, 48 F. Supp. 2d 21, 24 (D.D.C. 1099); Republic of Transkei v. INS, 923 
F.2d 175, 177 (D.C.Cir. 1991). 
EAC 07 246 5 1940 
Page 10 
It should be emphasized that a company's silt. alone, wtthout 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 Q 101(a)(44)(C) of the Act, 8 U.S.C. $ 1 l(!l(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 u ho would perf'onn the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct b~siness in a regular and continuous manner. See, 
e.g. Systronics Covp. 11. INS, 153 F. Supp. 2d 7, 15 (D D.C' 2(101). 
The petitioner states that it is engaged In tlle purchasing, ref~~rbishment, dismantling, export and domestic sale 
of used automobiles and spare parts. The cnnkpany currently enlploys an ownerlgeneral manager and a sales 
manager, and it seeks to hire the beneiiciary iis its operations manager. All of the petitioner's employees have 
managerial job titles, and the petitioner haL, 11ot ident~fied any employees to perform the non-managerial 
duties associated with the day-to-day operations of the b~siness, as well as non-qualifying tasks related to its 
financial and administrative functions. At tile same time, the petitioner indicates that most of these core 
functions, other than sales, will come under the beneficiarq's responsibility. Therefore, it is reasonable to 
conclude, and has not been shown otherv, rbe, that the beneficiary will be performing operational duties 
associated with the above-referenced buslnes, actlvitles isher than perfcmning primarily managerial duties. 
The record does not establish that a n~ajvn~y 
 the beneficiaq's duties will be primarily managing an essential 
function of the petitioning organization l'l~e rcc:crd indicates that a preponderance of the beneficiary's duties will, 
at least initially, be operational duties neccsm-y to operate the petitioner's business on a day-to-day basis. 
Although the petitioner claims that the bznefi~iaiy's depailment will be staffed in the hture, the petitioner must 
establish eligibility at the time of filing the i~c~nimmigrani visa petition. As noted above, a visa petition may 
not be approved based on speculation oi' fbture eligibi1,ty or after the petitioner or beneficiary becomes 
eligible under a new set of facts. See itif~zt!c>~. of Michc.l!rz Tii-c Covp., 17 I&N Dec. 248; Matter of Katigbak, 
14 I&N Dec. at 49. Based on the evidence f~nlished, it cannot be found that the beneficiary will be employed in 
a primarily managerial or executive capacity. i'vr tlus reaun, the appeal tvill be dismissed. 
In visa petition proceedings, the burden ot' pl; )\.ing eligib~lity for ;he benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 ci.S.( . $ 1361. 
 Mere, the petitioner has not sustained that burden. 
Accordingly, the appeal is dismissed. 
ORDER: The appeal is dismissed.