dismissed L-1A Case: Automotive Parts

' identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 l(a)(l5)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. 9 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. 9 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
T ank you, 
+ v Perry Rhew 
Chief, Administrative Appeals Office 
WAC 09 029 5 1399 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a limited liability company organized in the State of 
Missouri in 2007, states that it is engaged in the sale and distribution of gaskets and gasket materials, - - 
primarily for the automobile industry. It claims to be a subsidiary of, located 
in Izmir, Turkey. The beneficiary was initially granted one year in L-I A classification in order to open a new 
office in the United States and the petitioner now seeks to extend his status for two additional years. 
The director denied the petition concluding that the petitioner failed to 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. On appeal, the petitioner asserts that it believes that its previously 
submitted documentation "was not able to clearly communicate [the beneficiary's] duties within the 
company." The petitioner has submitted four statements in support of the appeal, along with additional 
documentary evidence, in an effort to establish that the beneficiary will be employed in a primarily 
managerial or executive capacity under the extended petition. 
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 the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate 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 employed 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 
WAC 09 029 5 1399 
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 regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form I- 129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 9 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
WAC 09 029 5 1399 
Page 4 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 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-making; 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 Form 1-129, Petition for a Nonimmigrant Worker, on November 12, 2008. The 
petitioner indicated that the company had two employees, with a projected staff of two to three employees for 
2009. In a letter dated November 7, 2008, the petitioner described the beneficiary's proposed duties as 
follows: 
[The petitioner] would like for [the beneficiary] to continue to direct U.S. expansion of sales 
and consulting operations, including strategic planning, marketing, and sales, financial 
controlling, human resources and reporting; direct procurement, including strategic planning, 
and the management of marketing and sales, budgeting and finance, controlling, human 
resources and reporting. [The beneficiary] will ultimately be responsible for directing all of 
[the petitioner's] operations and expansion in the United States; directing all our activities 
including the essential functions of budgeting, contract negotiation, and human resources; and 
managing the hiring and training of personnel in compliance with our managerial style and 
philosophy. Finally, we would like for him to serve as a direct executive/managerial liaison 
between [the petitioner], our U.S. customers, and our parent company, Temel Gaskets 
Turkey. 
The etitioner stated that the beneficiary also serves as a " 
dh The petitioner indicated that its gross income exceeded $125,000 during 2008 and that it has two 
employees and one contractor. 
WAC 09 029 5 1399 
Page 5 
The petitioner submitted a business plan which provides an overview of fiscal year 2008 activities and 
projections for 2009. On page four of the business plan, the petitioner further described the beneficiary's 
relationship with NAPA Autoparts: 
[The beneficiary] . . . has been providing consulting services to NAPA Autoparts 
(Automotive Parts Group, Atlanta, GA) and has achieved successful results that have 
generated savings over 10 million dollars for the company so far in 2008. NAPA has decided 
to continue to request [the beneficiary's] services and through out the completion of the 
current projects. NAPA is aiming at higher savings in 2009. 
With respect to the company's goals, the business plan indicates: 
[The petitioner] sets one of its main goals as expanding [the company's] US customer 
portfolio, therefore increasing the volume of business with its US clients. It will also focus 
on its other major operation and will aim at taking on more Six Sigma consulting projects 
within large automotive corporations similar to NAPA. [The petitioner] will implement Six 
Sigma to provide ways to reduce costs in the operations of these organizations. 
The petitioner indicated that it will continue to offer Six Sigma quality management consulting services to 
major auto parts and auto manufacturing companies as a strategy for introducing its parent company as a 
supplier. 
The business plan includes a chart depicting the operational structure of the petitioner and its parent company, 
which shows that the company's operations are divided into two areas: (1) foreign marketing management, 
including market research, tradeshow arrangement for the parent company, and customer account 
representation; and (2) Six Sigma Consulting Services for the auto industry, including Six Sigma Black Belt 
training and on-site project support, and software development for Six Sigma project management. 
The petitioner further described the beneficiary's consulting activities on page 13 of the business plan: 
[The beneficiary] has completed the Green Belt and the Black Belt training for Six Sigma. He 
is currently offering his consulting services as a Six Sigma Black Belt to NAPA Autoparts. 
[The beneficiary] manages over 75 active projects within the organization and provides 
support to 120 company employees from various managerial positions . . . . 
As a part of the program, [the beneficiary] holds meetings with NAPA's top management for 
new project proposals and for discussion of project results. He also provides head quarter's 
support and field support for the roll out of the company's Six Sigma program. 
The business plan also discusses the beneficiary's accomplishments with respect to marketing the company's 
products to U.S. customers, noting that the petitioner has experienced an increase in business with American 
WAC 09 029 5 1399 
Page 6 
auto parts distributors PA1 Industries, Magnum Diesel Parts and Maxiforce Diesel Engine Parts. The 
petitioner further indicated that the beneficiary is in communication with five potential new customers. 
On page 19 of the business plan, the petitioner discusses the U.S. company's continuing operations, noting 
that the beneficiary "will continue to be in direct contact with [the foreign entity]" and "continue to be the 
main contact for [the foreign entity's] U.S. customers." The plan further indicates that the beneficiary "will 
continue his market indicators analysis and present the results to the top management as a decision support 
mechanism," represent the foreign entity at an upcoming U.S. trade show, and follow up with customers after 
the show. In addition, the plan indicates that the beneficiary will continue to be a consulting resource for . 
NAPA Autoparts, "but will expand the coverage of the consulting side of [the petitioner's] operations to other 
major players of the auto parts industry." 
The petitioner indicates in its business plan that it hired who provides support for market 
research, maintains the Six Sigma project tracking tool developed by the beneficiary, and will be trained by 
the beneficiary as a Six Sigma green belt as a potential consultant for future Six Sigma projects. The 
petitioner stated that it also hired as a contractor to provide support for web application design 
projects. The petitioner submitted "Privacy and Non-compete Agreement" for each employee. According to 
the agreements, both individuals were hired to develop applications or web applications. 
Finally, the petitioner submitted a profit and loss statement for 2008 which shows income for services 
provided as follows: 
The director issued a request for additional evidence (RFE) on November 19, 2008, in which she instructed 
the petitioner to submit additional evidence to establish that the beneficiary will be employed in a primarily 
managerial or executive capacity. Specifically, the director requested: (1) a more detailed description of the 
beneficiary's duties, including the percentage of time the beneficiary allocates to each specific duty; (2) the 
U.S. company's organizational chart clearly depicting the beneficiary's position and all employees under his 
supervision; (2) for each employee, a brief description of job duties, educational level, annual salaries/wages, 
and source of remuneration; (3) evidence of wages paid to employees including state quarterly wage reports 
and IRS Forms 941, W-2 and W-3; (4) a list of the discretionary decisions that the beneficiary has made over 
the last six months; and (5) a specific, day-to-day description of the duties the beneficiary performed over the 
last six months. 
In response to the RFE, the petitioner submitted an affidavit dated December 15, 2008, in which it further 
described the beneficiary's duties as follows: 
As President of [the petitioner], [the beneficiary] will manage and direct, through a 
subordinate team of function managers, degreed professionals, and other skilled workers, the 
Aarketing and sale of [the foreign entity's] products in the United States market. This 
managerial and executive job function will demand at least 60% of [the beneficiary's] time. 
WAC 09 029 5 1399 
Page 7 
The remaining 40% of [the beneficiary's] time will be devoted to managing the delivery of 
the company's management consulting services to its largest corporate consulting client, 
NAPA Autoparts. 
As President of [the petitioner], [the beneficiary] will specifically manage the company's 
account representatives, customer service manager, and marketing assistant, who will engage 
in market and cost analyses, the development of marketing and branding campaigns, and the 
sale and delivery of [the company's] product line to new and existing customers. He will also 
manage the company's software engineer, who will develop software products to facilitate 
and enhance the sale and delivery of [the company's] product, as well as the company's 
automotive consulting services to the company's customers. [The beneficiary] will have sole 
executive responsibility for directing the overall growth and development [of] [the 
petitioner]. [The beneficiary] will be exclusively vested with the authority to establish 
company policies and procedures and to make personnel decisions (e.g., the decision to hire, 
promote, coach, and/or fire other employees). 
stated that, as of the date of the affidavit, it employs the beneficiary, and 
and that it is in the process of hiring two additional employees. The petitioner stated tha 1 
supports the petitioner's Enterprise Resource Planning (ERP) software, which takes and processes 
customer orders and handles customer billing, and also develops software to support the company's 
management consulting services. The petitioner indicated that conducts market research, analyzes 
return on investment for various modes of marketing, conducts cost analyses, and provides pricing and order 
status updates to customers. With respect to the future staff, the petitioner stated that one individual accepted 
a position as an account representative and management assistant, while the other individual would be a 
marketing assistant. In addition, the petitioner indicated that it intends to hire a second account representative 
and a customer service manager in "early 2009." 
In lieu of the requested quarterly wage reports and IRS Forms 941, Employer's Quarterly Federal Tax Return, 
the petitioner submitted a letter from its accountant, who stated that the petitioner's only payroll activity 
occurred in the fourth quarter of 2008, and therefore, the relevant quarterly report is due on January 3 1, 2009 
and had not been filed. 
The director denied the petition on December 30, 2008, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. In denying the petition, the director found that the petitioner described the beneficiary's duties in 
broad and general terms, without describing in detail what he does on a day-to-day basis. With respect to the 
beneficiary's supervision of subordinate personnel, the director emphasized that the petitioner did not submit 
any evidence of the two workers claimed to be employed at the time the petition was filed. The director 
observed that, as the petitioner did not appear to have any employees responsible for marketing, sales, 
budgeting, contract negotiations and human resources, the routine duties associated with these functions are 
likely performed by the beneficiary himself. The director concluded that the company had not grown to the 
point where it requires the beneficiary to perform primarily managerial or executive duties. 
WAC 09 029 5 1399 
Page 8 
On appeal, the petitioner asserts that the director's decision was incorrect and states that its previously 
submitted documentation "was not able to clearly communicate [the beneficiary's] duties within the 
company." 
In support of the appeal, the petitioner submits an updated organizational chart depicting the structure of the 
U.S. company as of January 10, 2009; lists the company's goals for the next three years; lists the beneficiary's 
major accomplishments during the first year of operation; and provides detailed job descriptions for the 
beneficiary, current employees and future positions to be filled. 
The petitioner asserts that while the beneficiary initially performed some non-qualifying tasks, "the addition 
of 3 employees to [the company] allowed the staffing levels to reach the adequate levels at which [the 
beneficiary] no longer had to contribute to non-managerial tasks and was given the opportunity to develop 
new business ventures and increase the volume of the current business. Further, the petitioner asserts that all 
current employees of the company have completed at least a bachelor's degree in their specialized fields and 
do qualify as professionals. The new job description for the beneficiary lists his title as "Marketing Manager 
and North American Sales Manager," and lists 15 duties. The description will not be repeated here in its 
entirety; however, the main responsibilities are listed as developing pricing strategies, identifying and 
developing marketing strategies, formulating, directing and coordinating North American marketing 
activities, evaluating financial aspects of new product design and development, negotiating exclusivity 
contracts and sales conditions, and hiring, training and evaluating marketing and sales staff. 
The petitioner states that it currently employs an ERP systems analyst, a market research manager, and an 
advertising and promotions managerlbranch manager. The petitioner's revised organizational charts lists 
position openings for a purchase and warehouse manager, a technical sales representative and a sales 
representative. As evidence of wages paid to these employees, the petitioner submits copies of company 
checks dated between December 12,2008 and December 18,2008. 
Since filing the appeal on January 23, 2009, the petitioner has supplemented the record with three additional 
statements dated March 30, April 6, and May 3, 2009, and additional evidence relating to the company's 
ongoing business activities in 2009. The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). Therefore, the AAO will limit its review to evidence that establishes the beneficiary's 
eligibility as of November 2008. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary 
would be employed in a primarily managerial or executive capacity under the extended petition. 
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. 5 214.2(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. 
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Page 9 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must show that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). While the AAO does not doubt that the beneficiary 
exercises discretion over the petitioner's business as its president and senior member of its two or three- 
person staff, the totality of the evidence submitted does not demonstrate that the beneficiary's actual duties 
will be primarily managerial or executive in nature. 
The petitioner's initial description of the beneficiary's duties was vague and failed to provide any insight into 
what it is the beneficiary does on a day-to-day basis as the petitioner's president. The petitioner stated that the 
beneficiary will "direct U.S. expansion of sales and consulting operations," manage marketing and sales, 
"direct procurement," "serve as a direct executive/managerial liaison" between the U.S. company, customers 
and parent company," hire and train personnel, and "direct all [of the U.S. company's] activities including the 
essential functions of budgeting, contract negotiation and human resources." While such responsibilities 
provide a broad view of the scope of the beneficiary's activities, they fail to illustrate what specific tasks the 
beneficiary performs to accomplish his objectives. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The petitioner failed to provide any detail or explanation of the beneficiary's 
activities in the course of his daily routine. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and those of his or her subordinate employees, the 
nature of the petitioner's business, the employment and remuneration of employees, and any other facts 
contributing to a complete understanding of a beneficiary's actual role in a business. The detailed business 
plan submitted with the initial filing shed additional light on the nature of the beneficiary's duties, and 
suggested that he has been and will be directly providing Six Sigma consulting services to NAPA Auto Parts 
and other U.S. auto parts and auto manufacturing companies. According to the business plan, the beneficiary 
would be managing over 75 active projects within NAPA Auto Parts throughout 2009. The record also shows 
that more than 90% of the revenue generated by the petitioner during its first year of operations was derived 
directly from the beneficiary's services as a consultant to NAPA Auto Parts. The petitioner submitted three 
letters from NAPA executives indicating that the beneficiary would continue this relationship throughout 
2009, as well as a letter from CPI Consultant Group stating that the beneficiary would have "daily 
involvement" in ongoing Six Sigma projects throughout 2009. Based on this evidence, it is reasonable to 
believe that a substantial portion of the beneficiary's time has been and will be devoted to personally 
providing Six Sigma consulting services. An employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 10 l(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 
604 (Comm. 1988). 
WAC 09 029 5 1399 
Page 10 
In response to the director's request for a detailed position description indicating the specific tasks the 
beneficiary performs and the percentage of time he devotes to each duty, as well as a specific day-to-day 
description of the duties the beneficiary had performed over the last six months, the petitioner submitted a job 
description that was even more general than that provided with the initial petition. The petitioner stated that 
the beneficiary will devote 60% of his time to manage and direct the sale of the foreign entity's gasket 
products in the United States "through a subordinate team of function managers, degreed professionals and 
other skilled workers," with the remaining 40% of his time dedicating to "managing the delivery of the 
company's management consulting services to its largest corporate consulting client." These statements were 
barely responsive to the director's request for a detailed and specific description of the beneficiary's duties. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). 
The AAO acknowledges that the petitioner has submitted a more detailed description of the beneficiary's 
duties on appeal; however, the newly-submitted job description will not be considered for two reasons. First, 
the purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the detailed description of the beneficiary's duties to be considered, 
it should have submitted the documents in response to the director's request for evidence. Id. The petitioner 
concedes that its previous submissions were "not able to clearly communicate [the beneficiary's duties]." 
Under the circumstances, the AAO need not and does not consider the sufficiency of the evidence submitted 
on appeal. 
Further, whereas the initial evidence suggested that the beneficiary has been and will be devoting a significant 
portion of his time to providing consulting services, and the petitioner later stated in response to the RFE that 
the beneficiary devotes 40 percent of his time to "managing the delivery of the company's managing 
consulting services," the job description submitted on appeal conspicuously and inexplicably omits any job 
duties relating to this branch of the company's operations. Absent some reasonable explanation from the 
petitioner, the AAO is not persuaded that the beneficiary's proposed duties changed so significantly between 
the time the petition was filed in November 2008 and the time the appeal was filed in January 2009. A 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Overall, the descriptions of the beneficiary's duties submitted prior to the adjudication of the petition included 
a combination of vaguely described managerial duties and non-qualifying duties suggesting that the 
beneficiary, as of the end of the first year of operations, was still directly involved in providing the services of 
the U.S. company. A review of the petitioner's staffing levels at the time of filing, as discussed further below, 
also suggests that the beneficiary, was actually directly performing the majority of the petitioner's sales and 
marketing tasks and directly providing the petitioner's Six Sigma Consulting services at the time of filing, as 
opposed to managing such activities with the support of a subordinate staff, as claimed by the petitioner in 
response to the request for evidence. 
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Page 11 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101 (a)(44)(A)(i) and (ii) of the Act, 8 U .S.C. 4 1 1 0 1 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that a "first line supervisor is not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are professional." Section 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. 5 2 14,2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 4 214.2(1)(1)(ii)(B)(3). 
The regulation at 8 C.F.R. €j 214.2(1)(14)(ii)(D) requires the petitioner to submit a statement describing the 
staffing of the new operation, including the number of employees and types of positions held accompanied by 
evidence of wages paid to employees. At the time of filing, the petitioner claimed to employ one employee 
and one contractor. The petitioner stated in its business plan that the employee, would be 
trained as a Six Sigma Green Belt to assist with consulting activities and that he was providing support with 
market research and maintaining a project tracking tool development by the beneficiary. The contract he 
signed with the petitioner indicates that he was hired to develop applications and web applications. In 
response to the RFE, the petitioner stated that provides support for internal ERP software and 
develops sofhvare for Six Sigma Consulting. The petitioner did not indicate that he performed the marketing 
or consulting duties attributed to him at the time of filing. 
As evidence of employment, the petitioner submitted a copy of a USCIS Form 1-9, 
Employment Eligibility Verification, completed in September 2008. Any Form 1-9 presented by a petitioner 
must be accompanied by other evidence to show that the employee has commenced work activities. Forms I- 
9 verify, at best, that a business has made an effort to ascertain whether particular individuals are authorized 
to work; they do not verify that those individuals have actually begun working. See Matter of Ho, 22 I&N 
Dec. 206, 212 (Assoc. Comm. 1998). The AAO acknowledges that the petitioner was not required to file its 
initial state quarterly wage report or IRS Form 941 until January 2009, after the petition was adjudicated. 
However, the petitioner has not supplemented the record on appeal with these documents. The petitioner has 
submitted a copy of a single company check in the amount of $350 issued to on December 18, 
2008. This is insufficient to establish that he was employed by the petitioner at the time of filing as claimed. 
Moreover, the check was paid to him for "work order entry - graphical interface" which suggests that he was 
likely paid on a contract basis and not as a regular salaried employee. 
The petitioner indicated that the contractor provides support for web application design projects. The 
contractor was no longer employed by the petitioner by the time it responded to the request for evidence and 
the record contains no evidence of payments to this individual. The petitioner indicated that it hired- 
as a marketing researcher, but did not provide any evidence of wages paid to him or indicate his hire date, 
therefore it cannot be determined whether he was hired before the end of the first year of operations. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
WAC 09 029 5 1399 
Page 12 
All other staff claimed by the petitioner were hired in December 2008 or later, and the petitioner indicates that 
it intends to hire two to three additional employees in 2009. However, 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of the petition to support an executive 
or managerial position. There is no provision in USCIS regulations that allows for an extension of this one- 
year period. At the end of one year, the petitioner employed, at most, one employee and one contractor, but it 
has not adequately documented the nature of their duties or submitted sufficient corroborating evidence of 
wages paid to them, as required by 8 C.F.R.5 214.2(1)(14)(ii)(D). Therefore, while the AAO does not doubt 
that the beneficiary has the authority to hire and fire employees, the evidence of record does not establish that 
he was supervising and controlling the work of a subordinate staff of managerial, supervisory or professional 
employees at the time the petition was filed. 
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 l(a)(44)(A)(ii) of the Act, 8 U.S.C. $ 1 10 1 (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 detailed job description clearly stating the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. $ 214.2(1)(3)(ii). 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. In this matter, the petitioner has not provided evidence that the beneficiary manages 
an essential function. 
Although the petitioner has indicated that the beneficiary manages and directs the sales and marketing 
function and manages the delivery of management consultant services, the essential functions of the 
petitioning company, it is the petitioner's obligation to establish that the day-to-day non-managerial tasks of 
the function managed are performed by someone other than the beneficiary. Even if the AAO considered the 
employee and contractor the petitioner claimed to employ at the time of filing, the contracts these employees 
signed indicate that they were hired to develop applications, not to perform sales, marketing or management 
consulting duties. Therefore, it is reasonable to conclude that the beneficiary himself was responsible for 
marketing the foreign entity's products in the United States and providing consulting services to the 
petitioner's customers at the end of the first year of operations. 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; see also 
Brazil Quality Stones, Inc. v. ChertofS, 53 1, F.3d 1063, 1069-70 (9th Cir. 2008). 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. As discussed above, the petitioner has not sustained this burden. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 10 l(a)(44)(B) of the Act, 8 U.S.C. $ 1 101 (a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
WAC 09 029 5 1399 
Page 13 
managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An individual 
will not be deemed an executive under the statute simply because they have an executive title or because they 
"direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide 
latitude in discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. Here, the petitioner has not 
established that the beneficiary is relieved t70m direct involvement in the day-to-day operations of the 
enterprise. 
Pursuant to section 10l(a)(44)(C) of the Act, 8 U.S.C. 9 1101(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, USCIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In reviewing the relevance of the number of employees a petitioner has, federal courts have 
generally agreed that USCIS "may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager." Family Inc. v. US. Citizenship and 
Immigration Services 469 F. 3d 13 13, 13 16 (9'h Cir. 2006) (citing with approval Republic of Transkei v. INS, 
923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). 
Furthermore, in the present matter, however, the regulations provide strict evidentiary requirements for the 
extension of a "new office" petition and require USCIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. fj 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 9 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. There is no provision in USCIS regulations that allows for an extension of this one- 
year period. If the business does not have sufficient staffing after one year to relieve the beneficiary from 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
Even though the petitioning enterprise is in a preliminary stage of organizational development and anticipates 
additional growth, the petitioner is not relieved from meeting the statutory requirements. 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 Mutter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant matter, the petitioner has not 
established that the beneficiary would be employed in a primarily managerial or executive capacity under the 
extended petition. Accordingly, the appeal will be dismissed. 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.