dismissed L-1A Case: Automotive Parts

&a Wefd to 
pmwmt damiy unwarranted 
invasion ol penonal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 07 232 52027 Office: VERMONT SERVICE CENTER Date: 0 3 2008 
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 1 0 1 (a)(] 5)(L) 
ON BEHALF OF THE 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 fbrther inquiry must be made to that office. 
' / 
rninistrative Appeals Office 
EAC 07 232 52027 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Ofice (MO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of the manager of its 
claimed U.S. subsidiary as an L-1 A nonirnmigrant 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 is a Colombian 
corporation. The U.S. entity, a Florida corporation, states that it is engaged in the import, export and 
wholesale of parts for automobiles, trucks and heavy equipment. The beneficiary was initially granted a one- 
year period in L-1A classification, and the petitioner now seeks to extend the beneficiary's stay for three 
additional years. 
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. In denying the petition, the 
director observed that although the petitioner claimed to employ three employees in the United States, the 
evidence submitted suggests that the beneficiary is the only employee of the U.S. company. The director 
determined that the beneficiary would evidently be primarily engaged in providing the goods and services of 
the United States business to its customers, rather than primarily performing managerial or executive duties. 
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 asserts that the director's 
decision contains several factual errors and suggests that the director failed to conduct a careful and thorough 
review of the record. Counsel asserts that the petitioner demonstrated submitted shows by a preponderance of 
the evidence that the proffered position is managerial and executive in nature. Counsel submits a brief and 
additional evidence in support of the appeal. In addition, counsel requests oral argument before the AAO. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(l5)(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 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. 
EAC 07 232 52027 
Page 3 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifjring 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 
education, training, and employment qualifies himher 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 whether the petitioner established that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. tj 1 101 (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 recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
EAC 07 232 52027 
Page 4 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonirnmigrant visa petition was filed on July 31, 2007. On the Form 1-129 petition, the petitioner 
indicated that its U.S. subsidiary has three employees. In a letter dated July 20, 2007, the petitioner indicated 
that the beneficiary performs the following duties as manager of the U.S. company: 
[The beneficiary] has refined and re-engineered the business goals, and continues to 
implement the operational and management policies of Heavy Auto Parts, Inc. in the United 
States, including its structure, components, and functions in accordance to the parent 
company's systems and business operation directives. Moreover, [the beneficiary] has 
exercised, and continues to exercise, wide latitude in discretionary decision-making, 
receiving his directives and general supervision solely from the parent company's President. 
As part of his duties, he has been the executive Manager of the organization in the State of 
Florida, and has supervised and controlled the work of the company's staff. [The beneficiary] 
has had, and continues to have, full authority to hire or fire personnel, or recommend 
promotions or leave authorizations for the company staff. Moreover, [the beneficiary] 
exercise[s] managerial and executive discretion over the day-to-day operations of the 
American auto parts enterprise, directly reporting the status and functions of the organization 
solely to the President of the foreign parent company, to [sic]. [The beneficiary] is solely 
responsible of his acts and application of his managerial and executive discretionary powers. 
Furthermore, [the beneficiary] directs and coordinates the managerial activities of the 
business, including managing staff, preparing work schedules, and overseeing duties. He 
reviews financial statements, sales and activity reports, and other performance data to 
determine productivity and goal achievement and to determine areas needing cost reduction 
and program improvement, so as to properly and effectively establish and implement 
departmental policies, goals, objectives, and procedures, while conferring with board 
members, organization officials, and staff members as necessary. He also manages activities 
directly related to providing the company's services, coordinates the American subsidiary's 
financial and budget activities to hnd operations, maximize investments, and increases 
efficiencies as dictated by his executive and managerial acumen. The foreign parent company 
wishes [the beneficiary] to continue, on a temporary basis, to be responsible for supervising 
the staffs work, sets [sic] standards for the work along with its general guidelines, supervise 
the creation of business incentives, and shall continue to coordinate the activities of fully 
establishing the business operations, services, investments, and related operations, the work 
qualie of the American subsidiary, promoting the business enterprise, recommending the 
acquisition of new businesses, and the completing the interface of the international parent 
company operational systems with that of the American subsidiary. 
On August 14, 2007, the director issued a request for additional evidence to establish that the beneficiary 
would be employed in a primarily managerial or executive capacity under the extended petition. In part, the 
director instructed the petitioner to submit: (1) a comprehensive description of the beneficiary's duties with an 
explanation as to how the duties will be managerial or executive in nature; (2) a list of United States 
EAC 07 232 52027 
Page 5 
employees that identifies each employee by name and position title; (3) a complete position description for all 
U.S. employees, including a breakdown of the number of hours devoted to each employees' job duties on a 
weekly basis; (4) copies of the U.S. company's IRS Forms 941, Employer's Quarterly Federal Tax Return, for 
all four quarters of 2006 and the first two quarters of 2007; (5) copies of the petitioner's 2005 and 2006 IRS 
Forms 1120, U.S. Corporation Income Tax Return.; and (6) copies of all IRS Forms W-2 and Forms 1099 
issued by the United States entity in 2006. 
The petitioner's response to the director's request for evidence was received on September 27, 2007. The 
petitioner provided the following expanded position description for the beneficiary's role as "commercial 
manager": 
[The beneficiary] has the discretion over operations decisions for the company. [The 
beneficiary] manages the organization andlor essentials [sic] functions of the organization. 
He is responsible to negotiate contracts with suppliers in the acquisition of equipment and 
parts inventory, major customers, and financial institutions on behalf of the corporation. His 
knowledge in construction equipment and truck parts are [sic] fundamental for the 
organization's purchasing process. He manages the essential function within the organization 
of overseeing the organization and selling the products to be distributed in the U.S. [The 
beneficiary] as the commercial manager with knowledge in International trade is responsible 
for the international operations. [The beneficiary] overseas [sic] the sales negotiation of 
equipment and parts with international customers in different regions of the world such as 
Latin America and Middle [Elast increasing the export of U.S. products to the rest of the 
world. [The beneficiary] is responsible to evaluate and hire insider or outsiders [sic] 
employees to be hired by [the U.S. company]. He directly supervises and has the authority to 
hire and fire or recommended [sic] those as well as other personnel actions (such as 
promotion and leave authorization) or, if not [sic] other employee is directly supervised, he 
functions at a senior level within the organizational hierarchy or with respect to [the] function 
managed. [The beneficiary] also exercises discretion over the day to day operations of the 
activity of the function for which he has authority. 
The petitioner also re-iterated the previously submitted position description, and provided the following 
breakdown of the beneficiary's responsibilities: 
(5%) 
 Networking with business industries in community to identify and cultivate new 
information sources, attend trade shows and conferences to keep abreast of industry. 
(5%) 
 Travel and communicate within the United States with various distributors, clients, 
equipment purchasing, and potential suppliers and clients. 
(5%) 
 Preparation of budget for the operations and monitor finances 
(1 0%) Determination of needs of the US company, including purchasing the equipment and 
inventory that will be used. 
(5%) 
 Evaluate and review the services ultimately provided by the company to ensure it 
meets proper specifications as per customer, and the products to ensure conformity 
with standards. 
EAC 07 232 52027 
Page 6 
(10%) Identify new international and domestics [sic] markets for penetrations [sic] and 
development of marketing strategies. This includes the development of advertising 
strategies. 
(1 5%) Maintain regular communications with the foreign parent company. 
(15%) Monitor the activities for all employees and the development of outsourced jobs such 
as accounting services, advertisement material services, among others. 
(30%) Manage the overall activities of the company; andlor supervise the administration and 
finances of the company. 
The petitioner stated that the U.S. company employs a part-time administrative assistant who performs the 
following duties: 
Receiving and placing [plhone calls: 5 hours 
Sales support: 2 hours 
Preparing reports: 4 hours 
Sending and [rleceiving mail: 2 hours 
Office and warehouse supplies ordering and maintenance: 2 hours 
Assisting managers with e-mails, letters, memos and communications: 5 hours 
Finally, the petitioner stated that the U.S. company employs an independent sales representative who "is 
responsible for new business development by identifying opportunities and contacting new and existing 
customers for the company's parts program." The petitioner stated that this employee's time is allocated as 
follows: 
Calling customers: 3 hours 
Visiting fleet customers and repair shows: 9 hours 
Customer support and troubleshooting: 5 hours 
Communicating with managers: 3 hours 
The petitioner provided copies of the U.S. entity's IRS Forms 941, Employer's Quarterly Federal Tax Return, 
for the last two quarters of 2006 and the first two quarters of 2007. The U.S. entity indicated on each Form 
941 that it had one employee. The salary of $6,500.01 paid to the company's sole employee in the second 
quarter of 2007 is consistent with the beneficiary's proffered annual salary of $26,000. The petitioner 
submitted a copy of the beneficiary's Form W-2, Wage and Tax Statement for 2006, which shows that he 
received a salary of $7,333. The petitioner did not provide copies of any Forms 1099 issued in 2006, or any 
other evidence of wages paid to contract employees. The petitioner's 2006 IRS Form 1120 reflects wages paid 
to the beneficiary only. The record, therefore, contains no documentary evidence of payments to the 
administrative assistant or independent sales representative. 
The director denied the petition on October 2, 2007, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. The director addressed the 
petitioner's staffing levels and noted that the petitioner claimed to employ three staff. The director incorrectly 
stated that the petitioner had not provided the requested position descriptions for its employees. This comment 
EAC 07 232 52027 
Page 7 
will be withdrawn.' The director further noted that, although the petitioner claimed that the U.S. company has 
a staff of three people, its quarterly tax returns reflect that the company has only one employee. 
In addition, the director observed that the beneficiary's proffered annual salary of $26,000 "does not appear to 
be commensurate with a bona fide manager or executive position in a major metropolitan business market," 
and the director also commented upon the beneficiary's "apparent lack of a college degree" as "telling of the 
importance of the position he holds." These comments are inappropriate and will be withdrawn. The 
director's position is not supported by the statute and regulations, which contain no salary or educational 
requirements for L-1 beneficiaries. Furthermore, the record reflects that the beneficiary completed a 
bachelor's degree prior to commencing his position with the U.S. entity. 
The director went on to discuss the beneficiary's position description, noting that the information provided by 
the petitioner merely identified general managerial functions and failed to specify exactly what the 
beneficiary would be doing within the context of the company's current staffing arrangement. The director 
found that it was not clear that the position would be managerial or executive in nature, other than in position 
title. The director observed that the U.S. company does not appear to have any full-time salespersons or other 
employees to provide sales and services to customers, and concluded that it is likely that the beneficiary will 
perform or help to perform these types of non-qualifying duties, rather than primarily performing managerial 
or executive duties. 
On appeal, counsel for the petitioner asserts that the director failed to consider all of the relevant evidence 
submitted, failed to make a "careful determination," and issued a decision "fraught with unreasonably 
arbitrary and capricious handling of the evidence." Counsel emphasizes that the petitioner did in fact submitd 
job descriptions and photographs requested in the request for evidence, and notes that the director appears to 
have overlooked such evidence. Counsel also asserts that the director incorrectly applied the regulation 
pertaining to evidentiary requirements for "new office" petition extensions pursuant to 8 C.F.R. 8 
214.2(1)(14)(ii), rather than applying the regulation at 8 C.F.R. 8 214.2(1)(14)(i). Counsel notes that although 
the beneficiary was previously granted only one year in L-1A status, which is the maximum period in L-1A 
classification permitted for a beneficiary coming to open or be employed in a new office, the U.S. company 
was in fact incorporated in 2001, and this information was included on the petition. Counsel states that if the 
director "even bothered to look at the previous petition, his or her review was careless and shoddy because the 
previous petition clearly indicated that it was not for a new office." Counsel submits a copy of the L 
Classification Supplement submitted with the petitioner's previous L-1 petition on behalf of the beneficiary 
(EAC 06 229 51831), on which the petitioner indicated that the beneficiary would not be coming to the 
United States to open a new office. 
Here, it should be noted that record of proceeding before the director did not contain a copy of the previously 
approved visa petition. Each petition filing is a separate proceeding with a separate record. See 8 C.F.R. 8 
1 
The director also stated, incorrectly, that the petitioner had failed to submit requested photographs of the 
U.S. business, and therefore questioned "the veracity of the instant petitioning entity as a functioning business 
entity for immigration purposes." The record reflects that the petitioner did in fact submit the requested 
photographs of the U.S. office; therefore, the director's comment is withdrawn. 
EAC 07 232 52027 
Page 8 
103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information contained in 
that individual record of proceeding. See 8 C.F.R. 9 103.2(b)(16)(ii). Although the U.S. company was 
established in 2001, there are instances in which a company may not commence regular business operations 
for some time following incorporation. Pursuant to 8 C.F.R. § 214.2(1)(l)(ii)(H) "doing business" means the 
regular, systematic, and continuous provision of goods or services. Here, the record shows that, while the 
U.S. entity filed a Form 1 120 for the 2005 calendar year, it did not pay any salaries, wages or compensation to 
officers in that year, report any cost of labor, or indicate any payments to outside contractors, other than $710 
in "professional fees." It achieved gross sales of $24,061. Based on the evidence in the current record, it was 
not unreasonable for the director to assume that the petitioner was not doing business in a regular and 
systematic manner for a full year prior to the filing of the initial petition on behalf of the beneficiary in 
August 2006, and therefore, conclude that the instant petition was for the extension of a petition involving a 
"new office." See generally 8 C.F.R. 9 214.2(1)(l)(ii)(F) and 8 C.F.R. 5 214.2(1)(14)(ii). 
Regardless, the petition was ultimately denied based on the petitioner's failure to establish that the beneficiary 
would be employed in a primarily managerial or executive capacity as those terms are defined at section 
lOl(a)(44)(A) and (B) of the Act. The petition was not denied based on the petitioner's failure to satisfy the 
evidentiary requirements for new office petition extensions set forth at 8 C.F.R. § 214.2(1)(14)(ii). The 
director's citation to these regulations is withdrawn; however, the director's error in this regard is found to be 
harmless. 
Counsel further asserts that the director erred by concluding that the beneficiary would not be employed by 
the U.S. company in a primarily managerial or executive capacity under the extended petition. Counsel 
contends that the petitioner's description of the beneficiary's duties "evidences that the beneficiary has 
functioned, and would continue to function, in a managerial and executive capacity." Counsel asserts that the 
petitioner is providing an objective expert opinion from Professor James D. Thaler, Jr., a professor at Stetson 
University College of Law, in support of its claim that the proffered position is in fact primarily managerial 
and executive in nature. Counsel provides in his brief a six-page summary of Professor Thaler's opinion 
letter, noting that Professor Thaler concluded that the beneficiary is a "high level manager and executive with 
this company," and that the beneficiary's job description "more than satisfies the definition of someone who 
acts primarily as a manager or executive." 
Counsel concludes that the petitioner has established by the preponderance of the evidence that the 
beneficiary's proffered duties are executive and managerial, and that the petitioner's U.S. subsidiary is a 
viable enterprise. Counsel asserts that the U.S. company, achieved year-to-date sales of $215,147.88 in 2007, 
a 370% increase over the company's 2006 total sales, and that such success can be attributed to the 
beneficiary's "managerial and executive prowess." 
Finally, counsel has submitted a request for oral argument in order to address "[tlhe issue of what exactly 
constitutes managerial and executive duties in light of the ever changing global business environment all 
companies face today." Counsel also wishes to address "the utter lack of equity, and abuse of discretion, that 
is rampantly evident in this case." 
EAC 07 232 52027 
Page 9 
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. However, as 
a preliminary matter, the AAO concurs with counsel that the director's decision does in fact contain factual 
errors, an application of an improper standard, and one incorrect citation to the regulations. There errors have 
been addressed above. The director should focus on applying the statute and regulations to the facts presented 
by the record of proceeding. 
However, the AAO cannot find, nor has counsel claimed, that these errors led the director to incorrectly 
conclude that the beneficiary would not be employed in a primarily managerial or executive capacity. The 
director's determination was in fact supported by valid references to evidence in the record. Specifically, the 
director noted that the petitioner failed to provide a detailed description of the beneficiary's actual duties, and 
failed to resolve apparent inconsistencies in the record with respect to the U.S. entity's staffing levels. Neither 
counsel nor the petitioner has directly addressed these deficiencies on appeal. 
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 
decision except as it may limit the issues on notice or by rule."); see also, Junk v. US. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Dor v. 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. 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. 
The definitions of executive and managerial capacity 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). Here, while the beneficiary evidently exercises authority over the 
petitioner's business as its manager and sole full-time employee, the record is insufficient to establish that his 
actual duties would be primarily managerial or executive in nature. The fact that the beneficiary manages a 
business, regardless of its size, does not necessarily establish eligibility for classification as an intracompany 
transferee in a managerial or executive capacity within the meaning of sections 101 (a)(15)(L) of the Act. See 
52 Fed. Reg. 5738,5739 (Feb. 26, 1987). 
The petitioner's description of the beneficiary's job duties fails to establish that he would perform primarily 
managerial or executive duties under the extended petition. While several of the beneficiary's duties are given 
managerial connotations, a review of the totality of the record does not support the petitioner's claim that a 
majority of the beneficiary's time would be devoted to performing duties that fall under the statutory 
definitions or managerial or executive capacity. Rather than clarifying the beneficiary's actual day-to-day 
duties as manager of the U.S. company, the petitioner's initial description of the beneficiary's duties merely 
EAC 07 232 52027 
Page 10 
paraphrased the statutory definitions of managerial and executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act. For example, the petitioner indicated that the beneficiary "exercises wide latitude in 
discretionary decision-making," "implement[s] the operational and management policies" of the U.S. 
company, "supervised and controlled the work of the company's staff," has "full authority to hire or fire 
personnel," "exercise[s] managerial and executive discretion over the day-to-day operations of the business," 
and "establish[es] and implement[s]departmental policies, goals, objectives, and procedures. Conclusory 
assertions regarding the beneficiary's employment 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. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The remainder of the beneficiary's position description did little to shed light on the actual duties he would 
perform as the manager and sole full-time employee of a truck and heavy equipment spare parts import, 
export and wholesale company. The petitioner stated that the beneficiary "actively manages activities directly 
related to providing the company's services" but did elaborate as to what "activities" he supervises, who 
provides the company's services, or what specific tasks the beneficiary performs in this regard. Similarly, the 
petitioner stated that the beneficiary "coordinates . . . financial and budget activities," but it did not identify 
the specific finance and budget-related tasks the beneficiary performs or "coordinates," nor did it identify any 
lower-level personnel who would relieve the beneficiary from day-to-day finance-related tasks such as 
bookkeeping. 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. at 1 108. 
Accordingly, the director requested a comprehensive description of the beneficiary's duties and an 
explanation as to how they would be managerial or executive in nature. In response, the petitioner re-iterated 
the same overly general position description, and added new duties, such as negotiating contracts with 
suppliers to acquire equipment and spare parts inventory, participating in the purchasing process, managing 
the "essential function" of "selling the products to be distributed in the U.S.," and overseeing "the sales 
negotiation of equipment and parts with international customers in different regions of the world." The 
petitioner stated in its breakdown of the beneficiary's duties that the beneficiary spends: 10 percent of his time 
"purchasing the equipment and inventory that will be used"; 5 percent of his time "networking with business 
industries"; 5 percent of his time to "communicate . . . with various distributors, clients, equipment 
purchasing, and potential suppliers and clients"; 10 percent of his time evaluating the company's products and 
services, and 10 percent of his time identifying new markets." All of these duties relate to the petitioner's day- 
to-day purchasing, sales and marketing activities, and the petitioner failed to explain how such duties qualify 
as managerial or executive in nature. It is insufficient for the petitioner to state that the beneficiary manages 
the function of "selling products" or "oversees sales negotiations" without establishing that someone other 
than the beneficiary performs the actual day-to-day sales transactions. As discussed hrther below, the 
petitioner has failed to establish that the U.S. company employs direct staff or contractors who would relieve 
the beneficiary from performing the company's day-to-day activities. 
EAC 07 232 52027 
Page 11 
The petitioner indicated that the beneficiary spends the majority (60 percent) of his time maintaining 
communications with the foreign parent company, monitoring activities for all employees and outsourced 
employees, and managing the "overall activities of the company andlor supervis[ing] the administration and 
finances of the company." Although the petitioner indicates that these three responsibilities constitute the 
beneficiary's "primary" duties, it once again failed to elaborate what specific tasks are entailed by the 
beneficiary's responsibility for managing the company's "overall activities" or "administration and finance." 
The petitioner also failed to provide any detail regarding the nature or purpose of the beneficiary's 
communications with the parent company and whether such communications involvement management 
issues. Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive 
or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108. Given that the company claims to export 
products to Latin American customers, it is not unreasonable to suppose that communications with the 
Colombian parent company might involve routine matters such as tracking shipments, obtaining purchase 
specifications or other activities related to the U.S. company's operational functions. Finally, the petitioner 
has not clearly demonstrated through documentary evidence that it has lower-level employees or outsourced 
workers, such that supervision of such employees would require 15 percent of the beneficiary's time. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Crqft ofCalifornia, 14 I&N Dec. 190 (Reg. Cornrn. 1972)). 
Overall, the descriptions of the beneficiary's duties do not allow the AAO to determine the actual duties to be 
performed by beneficiary, such that they can be classified as managerial or executive in nature. Whether the 
beneficiary is a managerial or executive employee turns on whether the petitioner has sustained its burden of 
proving that his duties are "primarily" managerial or executive. See sections 101 (a)(44)(A) and (B) of the Act. 
Here, the petitioner has not adequately documented what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. Notwithstanding the breakdown 
provided by the petitioner, the majority of the duties remain too vaguely-defined to be categorized as 
managerial. The petitioner's description of the beneficiary's job duties does not adequately establish what 
proportion of the beneficiary's duties is managerial in nature, and what proportion is actually non-managerial. 
See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Absent a clear and credible breakdown 
description of the beneficiary proposed duties and the amount of time to be spent on them, the AAO cannot 
determine what proportion of his duties would be managerial or executive, nor can it deduce whether the 
beneficiary is primarily performing qualifying duties. The AAO cannot accept an ambiguous position 
description and speculate as to the related managerial or executive duties to be performed within the context 
of the petitioner's business. 
Furthermore, the petitioner's description of the beneficiary's duties cannot be read or considered in the 
abstract. Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the 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. 
EAC 07 232 52027 
Page 12 
As observed by the director, the record does not demonstrate that the petitioner has a sufficient number of 
direct or contracted employees who could perform the non-managerial duties associated with operating the 
petitioner's business on a day-to-day basis. While the petitioner has consistently claimed to employ three 
employees, there is no documentary evidence to corroborate the employment of the claimed "administrative 
assistant and sales" employee or the independent sales representative. As noted by the director, the 
petitioner's IRS Forms 941 for the last two quarters of 2006 and first two quarters of 2007 indicate that the 
petitioner has one employee, not three employees. The director reasonably assumed that the employee 
reported on the Forms 941 is the beneficiary himself, and the petitioner has not claimed that this assumption 
was incorrect. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582,591-92 (BIA 1988). 
By requesting copies of the petitioner's recent Forms W-2, Forms 1099 and Forms 941, the director was 
clearly and reasonably instructing the petitioner to submit documentary evidence to show that it actually 
employs the claimed staff. If the petitioner's employees are not paid as payroll employees or as contractors, it 
is reasonable to expect the petitioner to submit comparable documentary evidence to demonstrate that it 
employed the claimed staff at the time the petition was filed. The record is devoid of any evidence of 
payments to the beneficiary's claimed subordinate employees. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. at 165. Although the director specifically referenced the petitioner's failure to 
submit evidence of payments to two of its three workers, the petitioner has neglected to address this issue on 
appeal, and has still not submitted documentary evidence of payments to the claimed subordinate staff. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1 101(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. However, it is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees 
who would perfonn the non-managerial or non-executive operations of the company, or a "shell company" 
that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when USCIS notes 
discrepancies in the record and fails to believe that the facts asserted are true. Id. 
At the time of filing, the U.S. entity was a six-year-old company that is described as a "heavy duty trucks & 
trailer parts wholesaler," with domestic and international customers. The petitioner reasonably requires 
someone to locate and purchase parts and inventory, to maintain relationships with suppliers and find new 
suppliers, to handle customer sales and service activities, to coordinate the transport and distribution of 
products to domestic and international customers, to maintain the company's day-to-day finances, to manage 
accounts payable and receivable, to advertise and market the company's products and services, and to perform 
routine clerical and administrative tasks associated with operating any business. The petitioner has not 
established that anyone other than the beneficiary was responsible for performing any of these non- 
managerial day-to-day functions of operating its business at the time the petition was filed. It is reasonable to 
EAC 07 232 52027 
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conclude that these activities would require far more of the beneficiary's time than any managerial duties he 
may perform given the petitioner's staffing levels. The actual duties themselves will reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Snva, 724 F. Supp. at 1108. 
There is no indication in this matter that the director did not consider the reasonable needs of the organization 
in making his determination that the beneficiary would not be employed in a primarily managerial or 
executive capacity. On the contrary, it appears the reasonable needs were considered, and the director 
concluded that the petitioner was incapable based on its overall purpose and stage of development to support a 
primarily managerial or executive position as defined by sections 101(a)(44)(A) and (B) of the Act. Contrary 
to the petitioner's assertions, the record does not establish that the beneficiary was relieved from primarily 
performing non-managerial duties associated with the company's sales, purchasing, customer service, 
marketing, financial, administrative and clerical functions. Moreover, even if the petitioner had established 
that the U.S. company employs the claimed part-time administrative and sales employees, it is not evident 
that two part-time employees would relieve the beneficiary from primarily performing non-qualifying duties 
associated with the company's sales, marketing, purchasing and financial functions. 
Collectively, the lack of a subordinate staff brings into question how much of the beneficiary's time can 
actually be devoted to the claimed managerial or executive duties. As stated in the statute, the beneficiary 
must be primarily performing duties that are managerial or executive. See sections 101 (a)(44)(A) and (B) of 
the Act. Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. See 
sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1101(a)(44). The reasonable needs of the petitioner 
may justify a beneficiary who allocates 5 1 percent of hs duties to managerial or executive tasks as opposed to 
90 percent, but those needs will not excuse a beneficiary who spends the majority of his or her time on non- 
qualifying duties. The AAO has consistently interpreted the regulations and statute to prohibit discrimination 
against small or medium size businesses. However, the AAO has also consistently required the petitioner to 
establish that the beneficiary's position consists of primarily managerial and executive duties. As discussed 
above, the petitioner has not established this essential element of eligibility. 
The petitioner has also asserted that the beneficiary manages the "essential function" of "overseeing the 
organization" and selling the products to be distributed in the U.S. company. 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" with the organization. See section 
101(a)(44)(A)(ii) of the Act, 8 U.S.C. 9 1 101(a)(44)(A)(ii). The term "essential function" is not defined by 
statute or regulation. If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must finish a detailed position description explaining the duties 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. 5 214.2(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 operational duties related to 
the function. In this matter, the petitioner has not provided evidence that the beneficiary manages an essential 
function, as it has not established that he performs managerial duties associated with "selling the products to 
be distributed," While the beneficiary evidently exercises discretion over the business as its sole full-time 
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employee, the petitioner has not established that his primary duties are the high-level duties contemplated by 
the statutory definition of managerial capacity. 
The AAO acknowledges the submission of the advisory opinion letter fiom Professor James D. Thaler, 
offered as evidence that the beneficiary will perform in a qualifying managerial or executive capacity. 
Professor Thaler explains that the beneficiary functions primarily as an executive or manager based upon 
three factors: (1) the definitions of an executive and a manager based upon generally accepted management 
principles; (2) the position description for the offered position as "commercial manager," and (3) the 
definitions listed under Title 8, Code of Federal Regulations, section 204.56)(2). The AAO may, in its 
discretion, use advisory opinion statements submitted as expert testimony. However, where an opinion is not 
in accord with other information or is in any way questionable, the AAO is not required to accept or may give 
less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
Based upon the statements made by Professor Thaler, it is reasonable to determine that the only information 
he possesses regarding the beneficiary's position is a job description provided by the petitioner. He did not 
provide a copy of the position description he reviewed. Based on the content of his letter, it appears that the 
position description was similar, if not identical, to the position description provided by the petitioner in its 
letter dated July 20, 2007. The deficiencies of this position description have been discussed in detail above. A 
review of the letter reveals that Professor Thaler reviewed a job description that paraphrased the statutory 
definitions, and concluded, based on this description, that the beneficiary meets the criteria set forth at 
sections 101(a)(44)(A) and (B) of the Act. Professor Thaler provides no indication that he has any 
information or documentation relating to the beneficiary's actual day-to-day duties, the nature of the 
petitioner's business or its actual staffing structure. For example, Professor Thaler indicates that "as defined in 
the Position Description, [the beneficiary] has no obligation to be involved in frontline work." He also states 
that the petitioner's lower-level tasks are performed by "sales people and clerical staff," and that "[nlowhere 
in the Position Description does it direct [the beneficiary] to personally provide those types of services." As 
discussed above, the petitioner has not submitted documentary evidence to establish that it employs the 
claimed part-time administrative assistant and part-time sales representative, or any other staff. Further, the 
petitioner did not provide Professor Thaler with the more detailed position description provided to USCIS in 
response to the request for evidence, a description which clearly includes operational tasks related to sales and 
purchasing. Professor Thaler's opinion was primarily based on a vague and extremely limited position 
description that was already found by CIS to be excessively generalized. Therefore, in this case, the expert 
opinion submitted is insufficient to overcome the valid objections of the director or the deficiencies discussed 
in detail above. 
Finally, the AAO acknowledges counsel's request for oral argument. However, the regulations at 8 C.F.R. 8 
103.3(b) provide that the requesting party must explain in writing why oral argument is necessary. USCIS has 
the sole authority to grant or deny a request for oral argument and will grant argument only in cases involving 
unique factors or issues of law that cannot be adequately addressed in writing. In this instance, counsel 
identified no unique factor or issues of law to be resolved. Moreover, the written record of proceedings fully 
represents the facts and issues in this matter. Consequently, the request for oral argument will not be granted. 
EAC 07 232 52027 
Page 15 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed in a 
managerial or executive capacity under the extended petition. For this reason, 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. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.