dismissed L-1A Case: Bakery

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: 
MAY 0 S 2011 
Office: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 u.s.c. § 1101(a)(15)(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. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.c. § 11OI(a)(15)(L). The petitioner, a California corporation, states that is a subsidiary of Comestibles 
Master Co., Ltd., located in Taiwan. The petitioner is self-described as a bakery cafe, manufacturer, 
wholesaler and retailer. It seeks to employ the beneficiary in the position of bakery manager at its Irvine, 
California location for a period of three years. 
The director denied the petition, concluding that the petitioner failed to establish: (1) that the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity; and (2) that the beneficiary 
has been employed by the foreign entity in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary 
has been and would be employed in a managerial capacity within the petitioner's international organization. 
Counsel suggests that the director misunderstood the nature and scope of the company, and placed undue 
weight on the beneficiary's performance of a few minor, non-managerial duties that do not require the 
majority of his time. 
I. The Law 
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualirying organization must have employed the 
beneficiary in a qualirying 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. § 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 qualirying organizations as defined in paragraph (I)(1)(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. 
Page 3 
(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 
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. 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § I 10 I (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 IOI(a)(44)(B) of the Act, 8 U.S.C. § I 10 I (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 
Page 4 
(iv) receives only general supervision or direction from higher-level executives, the board 
of directors, or stockholders of the organization. 
II. The Issues on Appeal 
A. Employment in a managerial or executive capacity in the United States 
The first issue to be addressed is whether the petitioner established that the beneficiary would be employed in 
the United States in a primarily managerial or executive capacity. 
The petitioner filed the Fonn 1-129, Petition for a Nonimmigrant Worker, on April 22, 2009. In a letter dated 
April 18, 2009, the petitioner described the beneficiary'S proposed duties as follows: 
[The beneficiary] will fill the position of Bakery Manager of [the petitioner] in its Irvine, 
California store. The products are what attract customers to [the petitioner]. Its success 
heavily relies on its dessert and bakery products that are designed and manufactured by in­
house chefs. Therefore, the Bakery Manager is a key managerial position in every [company] 
store because it is who brings together the creative team to design and work on the products 
that made [the petitioner] what it is today. 
More specifically, [the beneficiary] will supervise the kitchen production staff, set standards 
for the work and general guidelines for each production which must be followed and 
executed by the production team, and coordinate the various staff to assure that each product 
is designed and manufactured adequately and on schedule. 
[The beneficiary] will also be responsible to train new staff and coordinate the work of any 
outside independent contractors who are engaged to provide services to the bakery production 
division, such as maintenance workers, vendors, and delivery truck drivers. 
[The beneficiary] has the day-to-day discretionary authority in coordinating the [sic] directing 
the work of the bakery production staff and is responsible for proper execution and 
manufacturing of everyday dessert and bakery products. He will also evaluate the 
perfonnance of bakery personnel and can recommend hiring and firing of personnel. 
As the person responsible for the daily production of the store, [the beneficiary] must spend a 
majority of his time coordinating the specific work of each staff, reviewing its quality for 
confonnity to overall [company] standards, and administering the bakery production staff. 
Strong managerial skills are needed for the important coordination and scheduling functions 
performed by the Bakery Manager. 
The petitioner submitted an organizational chart for its Irvine, California store. The organizational chart did 
not identify any employees by name, nor did it include a position titled "Bakery Manager." The chart depicts 
Page 5 
a store manager who oversees three departments: kitchen, storefront, and favility [sic]. Within the kitchen 
department there is a "bread chef' who supervises 18 bakers, assemblers and Danish personnel, and a "cake 
chef' who supervises an assistant cake chef, and a total of 12 bakers, decorators and assembly personnel. The 
petitioner did not identity where the beneficiary's position falls within its existing organizational structure. 
The petitioner submitted wage and salary records corroborating its statements that it regularly employs 
between 60 and 70 workers. 
The director issued a request for additional evidence ("RFE") on April 28, 2009. The director instructed the 
petitioner, inter alia, to submit additional evidence to demonstrate that the beneficiary will be employed in the 
United States in a primarily managerial or executive capacity. Specifically, the director requested: (I) a more 
detailed description of the beneficiary'S duties in the U.S., including the percentage of time to be spent on 
each of the listed duties; (2) an explanation of exactly which employees the beneficiary will supervise 
including their job titles, educational levels, position descriptions, and annual salaries and wages; and (3) a 
copy of the U.S. company's organizational chart clearly identitying the beneficiary'S position and all 
employees under the beneficiary's supervision by name and job title. 
In a response dated May 15, 2009, counsel for the petitioner provided the following description of the 
beneficiary's duties: 
[The beneficiary 1 will spend 60% of his time supervising the bakery department staff, setting 
standards for the work and general guidelines for each production which must be followed 
and executed by the production team, and coordinating the various staff to assure that each 
product is designed and manufactured adequately and on schedule. [The beneficiary 1 will be 
directly supervising the baker, assemblers and workers in the Danish division for a total of 21 
employees. 
He will also need to maintain a record for maintenance and upkeep of the bakery department 
equipment and facilities. He will also be in charge of maintaining quality standard [ s 1 for the 
products as the special bakery dessert products are what attract the customers in the first 
place. 
[The beneficiary 1 will also spend the remaining 40% of his time to train new staff and 
coordinate the work of any outside independent contractors who are engaged to provide 
services to the bakery production department, such as maintenance workers, vendors, and 
delivery truck drivers. [The beneficiary 1 will have the day-to-day discretionary authority in 
coordinating and directing the work of the bakery department staff and will be responsible for 
proper execution and manufacturing of everyday bakery and dessert products. He will also 
evaluate the performance of bakery department personnel and can recommend hiring and 
hiring of personnel to upper level management team. 
Additionally, as the person responsible for the daily production of the bakery department, [the 
beneficiary 1 will also spend significant amount oftime coordinating the specific work of each 
Page 6 
staff under his direct supervision, reviewing its quality for conformity to overall [company 1 
standards, and administering the bakery department staff. 
The petitioner submitted a revised organizational chart for the U.S. company on which a few handwritten 
changes were made. The petitioner removed the position of "bread chef' from the original chart and wrote in 
"bakery manager." The chart shows that this position reports to the "kitchen production manager," a position 
previously identified simply as "kitchen." Under the position of "bakery manager," the chart depicts three 
positions: baker (7 employees); assembler (8 employees); and Danish (3 employees). The petitioner did not 
identity any employees by name or provide the requested position descriptions for the beneficiary's 
subordinates. 
The petitioner submitted copies of its 2008 IRS Forms W-2, Wage and Tax Statement, for over 80 employees, 
as well as the company's payroll check register for the two-week pay period ended on April 12,2009. 
The director denied the petition on June 2, 2009, concluding that the petitioner failed to establish that the 
beneficiary will be employed by the U.S. entity in a primarily managerial or executive capacity. In denying 
the petition, the director emphasized that the petitioner failed to submit the requested information regarding 
the beneficiary's subordinates, including the total number of employees supervised, their names, job titles and 
job duties. The director acknowledged that the petitioner submitted IRS Forms W-2 for 2008, but noted that 
many of the employees, based on the wages paid, appear to be part-time workers. Finally, the director 
determined that, based on the position description submitted, the beneficiary's position will include the daily 
operations of the petitioner's business rather than duties that are primarily managerial or executive in nature. 
Overall, the director concluded that the beneficiary would be primarily supervising non-professional 
employees, rather than supervising a subordinate staff comprised of managerial, supervisory or professional 
employees, or managing an essential function of the organization. 
On appeal, counsel addresses the director's concern that the wages paid to employees in 2008 appear to be 
commensurate with part-time employment. Counsel emphasizes that the petitioner was not open for business 
for the entire year, and notes that the company's payroll for the quarter ended on June 30, 2009 was in excess 
of $290,000. The petitioner provides a copy of the petitioner's California Form DE-6 quarterly wage report in 
support of the appeal. 
The petitioner also submits a third organizational chart which, according to counsel, shows the names and 
positions of all employees to be supervised by the beneficiary. The newly revised chart has the beneficiary's 
position of bakery manager at the top, and indicates that he will directly supervise a chief baker who the 
beneficiary himself will hire. The chart indicates that the chief baker will supervise two shift supervisors in 
the bread section, and two shift supervisors in the cake section. A total of 17 subordinate employees are listed 
in the bread section, including bread makers, bread packaging, bread/food preparation and "bread Danish 
staff." The chart also lists a total often lower-level employees in the cake section. 
Finally, the petitioner submits the following description of the beneficiary's proposed duties: 
Page 7 
Beneficiary shall be the person directly in charge of the Bakery Department of the Company. 
Beneficiary shall oversee the entire operation through supervision over the Section 
Supervisors. Beneficiary has the sole authority and discretion in hiring, discharging and 
evaluating the perfonnance of all personnel under him in the Department. Beneficiary shall 
be responsible and report only to the operation manager/vice pn~sl,dellt 
Upon review, the AAO concurs with the director's conclusion that the petitioner failed to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
As a preliminary matter, the AAO notes that we have not considered the U.S. company organizational chart or 
position description submitted on appeal in reaching our determination regarding this issue. The petitioner 
availed itself of two prior opportunities to submit a chart depicting the structure of the U.S. company and the 
beneficiary's placement within the company's organizational and managerial hierarchy. 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 af 
Michelin Tire Carp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Moreover, it appears that the new chart and position description were created to address the director's finding 
that the beneficiary would be acting as a first-line supervisor of non-professional personnel, as the new chart 
includes a tier of subordinate supervisors who did not appear in either previous chart, and the new position 
description indicates that the beneficiary will report directly to a vice president, rather than to a kitchen 
manager. Moreover, the new chart expands the scope of the beneficiary's authority to include both the 
"bread" and "cake" departments, when he was previously depicted as supervising only the employees in the 
bread department. A petitioner may not make material changes to a petition in an effort to make a deficient 
petition confonn to USCIS requirements. See Matter af Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
If significant changes are made to the initial request for approval, the petitioner must file a new petition rather 
than seek approval of a petition that is not supported by the facts in the record. We will consider the 
petitioner's organizational structure as depicted prior to the adjudication of the 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. § 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be perfonned by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
The petitioner has provided a detailed description of the beneficiary's proposed duties as "bakery manager." 
However a comparison of the initial organizational chart and the chart submitted in response to the request for 
evidence suggests that the position the beneficiary will hold has also been titled "bread chef." The AAO 
emphasizes that the evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization or department is 
sufficiently complex to support an executive or manager position. 
Nevertheless, it is the beneficiary'S duties, and not his position title, which must be considered in determining 
whether he will be employed in a primarily managerial or executive capacity. The petitioner indicates that the 
will spend "60% of his time supervising the bakery department staff," comprised of "bakers, assemblers and 
Page 8 
workers in the Danish division." None of these employees are depicted on either organizational chart as 
supervisory personnel. The beneficiary's duties in this regard include supervising and coordinating staff, 
setting standards for work, maintaining records for maintenance and upkeep, and maintaining quality 
standards. An additional 40 percent of the beneficiary's time will be devoted to training staff, coordinating 
outside contractors, evaluating personnel, recommending hiring and firing decisions, and spending a 
"significant amount of time coordinating the specific work of each staff under his direct supervision." Based 
on this description, the beneficiary will devote the vast majority of his time to staff supervision, and will 
perform some additional administrative and record-keeping tasks. 
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. § 110 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 
101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 214.2(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. § 214.2(1)(I)(ii)(B)(3). 
While the petitioner indicates that the beneficiary will have the authority to recommend the hiring and firing 
of employees and other personnel actions for workers who report to him, the petitioner has failed to establish 
that the beneficiary will be required to primarily supervise and control the work of other supervisory, 
professional or managerial employees. Based on the organizational charts submitted and the petitioner's 
statements in response to the request for evidence, the job titles of the employees who report to the 
beneficiary's proposed position of "bakery manager" are bakers, assemblers and "workers in the Danish 
division." None of these positions are depicted as supervisory positions on the submitted organizational 
charts. Regardless, an employee will not be considered to be a supervisor simply because of a job title, 
because he or she is arbitrarily placed on an organizational chart in a position superior to another employee, or 
even because he or she supervises daily work activities and assignments. Rather, the employee must be 
shown to possess some significant degree of control or authority over the employment of subordinates. See 
generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (Cited in 
Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11,2007». 
Although requested by the director, the petitioner did not provide names, full job titles, job descriptions or 
educational requirements for all employees who will be working under the beneficiary's supervision. Failure 
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 1 03.2(b)( 14). Accordingly, the petitioner has not established that any of the beneficiary'S 
subordinates are employed in positions that are managerial, supervisory or professional in nature.' The AAO 
1 In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section IOI(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
Page 9 
concurs with the director's conclusion that the beneficiary will be employed primarily as a first-line supervisor 
of non-professional employees. Again, the statute provides 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 IOl(a)(44)(A)(iv) of the Act. Accordingly, the beneficiary does not 
qualify for the benefit sought as a personnel manager. 
Furthermore, the percentage of time the beneficiary devotes to supervising non-professional personnel, clearly 
the majority of his time, will not be considered time allocated to qualifying managerial duties, and as such, 
the petitioner has not established that his duties will be "primarily" managerial in nature. 
The beneficiary does not, in the alternative, qualify as a "function manager." The term "function manager" 
applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead 
is primarily responsible for managing an "essential function" within the organization. See section 
101 (a)(44)(A)(ii) of the Act, 8 U.S.c. § llOl(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 clearly describe 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). 
Here, the petitioner plainly states that the beneficiary will devote well over half of his time to supervising 
subordinate personnel in the bakery department. It has not articulated a claim that the beneficiary would be 
primarily managing an essential function of the petitioning company. As discussed above, the beneficiary 
will be devoting more than half of his time to the non-managerial task of directly supervising and training 
non-professional personnel, and as such, the petitioner has not established that the beneficiary's duties will be 
primarily managerial or executive in nature. While performing non-qualifying tasks 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. Cherto.ff, 531, F.3d 1063, 1069-
70 (9th Cir. 2008). As discussed above, the petitioner has not sustained this burden. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
the United States in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.O. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. Absent a description of job duties for the beneficiary's subordinates and evidence of their 
educational credentials, the AAO will not assume that the positions of baker, assembler or Danish worker 
require the services of individuals who have completed a bachelor's degree. 
Page 10 
B. Employment in a managerial or executive capacity abroad 
The second and final issue addressed by the director is whether the petitioner established that the beneficiary 
has been employed by the foreign entity in a primarily managerial or executive capacity. See 8 C.F.R. 
§ 214.2(1)(3)(iv). 
In its letter dated April 18, 2009, the petitioner indicated that the beneficiary has been employed by the 
petitioner's parent company on a full-time basis since October 2005. The petitioner described the 
beneficiary's duties as follows: 
He is the Bakery Master Chef in the bakery manufacturing factory. He is responsible for 
personnel training, quality control of the dessert and bakery products, and market research 
and products development. 
[The beneficiary] is in charged [sic] of designing and creating new dessert and bakery 
products to satisfy the customers' demand. His responsibilities also include the recruitment 
and training of staff, over which he has hiring and firing authority. He is also responsible for 
coordinating the production of hundreds of stores in Taiwan on a daily basis and assuring 
compliance with scheduling needs. More importantly, he is responsible for the quality of the 
products that come out of the central manufacturing bakery every day. 
[The beneficiary] has complete discretionary authority over the work of the bakery 
production staff. 
The petitioner submitted an organizational chart for the foreign entity, however, the majority of the 
information in the "Bakery Department (Pastry & Bread)" is written in Chinese and the chart was not 
accompanied by a certified English translation. The petitioner did not identify the beneficiary's name or 
position on the organizational chart. 
In the request for evidence issued on April 28, 2009, the director instructed the petitioner to submit: (1) a 
more detailed description of the beneficiary's duties abroad, including the percentage of time the beneficiary 
allocates to each listed duty; (2) an explanation of exactly which employees the beneficiary directs including 
their job titles and position descriptions; and (3) the foreign entity's line and block organizational chart that 
clearly identifies the beneficiary's position and identifies all employees who report to the beneficiary by name 
and job title. The director advised the petitioner that any document submitted to USCIS containing a foreign 
language must be accompanied by a full English translation that has been certified by the translator as 
complete and accurate. 
In response, counsel indicated that the beneficiary "is responsible for daily operations, personnel training, 
quality control of the bakery products, market research and products development." Counsel further stated: 
Page II 
More specifically, Beneficiary spends about 40% of his time assisting the Kitchen Manager 
and Assistant Kitchen Manager in overseeing the daily operations of the bakery department 
and the manufacturing plant. He also coordinates activities among various departments to 
ensure that customers are satisfied with their orders. He is also in charge of the factory's 
inventory, equipment, and supplies. He also needs to maintain a record for maintenance and 
upkeep of the equipments and facilities. He is also in charge of maintaining quality standard 
for the products as the special bakery dessert products are what attract the customers in the 
first place. 
Beneficiary spends another 30% of his time running the administrative and human resources 
functions including recruiting and training new chefs and workers, monitoring employee 
performance and progress, and evaluating and firing of employees under his supervision .... 
Beneficiary oversees 75 employees total with 3 Assistant ControHers, 30 First Chefs, 14 
Second Chefs, and 32 Assistant Chefs. 
Beneficiary also has to oversee the training of new chefs and employees and sometimes trains 
them himself. He has to explain the department's policies and practices. He also schedules 
work hours for the employees under his supervision and makes necessary arrangements when 
workers are sick or needed. He also ensures that the employees are paid accordingly and 
comply with licensing laws and wage and hour issues. 
Beneficiary spends the remaining 30% of his time monitoring industry trends, developing 
new recipes, and conducting market research. As a Master Chef, beneficiary has to 
coordinate with the many chefs he supervises to select the more popular and successful menu 
items, taking into account the likely number of customers and the past popularity of dishes. 
He also needs to work and implement the menu, determining the need for variety and the 
seasonal or cultural availability of bakery products so that expectations of the customers are 
met. ... Beneficiary also meets with franchisees and managers from other stores to design 
and promote promotional items during the year. 
The petitioner resubmitted the organizational chart provided at the time of filing, with minor revisions. The 
petitioner identified the beneficiary'S position of Master Chef, reporting to the Assistant Kitchen Manager, 
within the Pastry Department. Under the beneficiary, the petitioner added handwritten notes, indicating that 
the employees under the beneficiary are assistant controllers, first chefs, second chefs and assistant chefs. 
The director determined that the petitioner failed to establish that the beneficiary has been employed by the 
foreign entity in a primarily managerial or executive capacity. The director observed that the beneficiary's 
duties include non-managerial tasks such as monitoring industry trends, developing new recipes and 
conducting market research, and the record did not establish that the beneficiary performs such duties through 
subordinate personnel. The director further found that the time the beneficiary devotes to performing 
administrative and human resource functions was not shown to involve primarily managerial or executive 
duties. Finally, the director emphasized that the petitioner failed to provide a certified English translation of 
Page 12 
the foreign entity's organizational chart, and did not submit the requested names, job duties, educational level 
and salary of each employee working under the beneficiary's supervision. Overall, the director found the 
evidence insufficient to establish that the beneficiary has been employed abroad in a primarily managerial or 
executive capacity. 
On appeal, counsel for the petItIOner asserts that the beneficiary's position of master chef is primarily 
managerial in nature. Counsel emphasizes that the foreign entity operates a chain of over 325 bakeries and 
cafes, and stresses that the position of master chef within such a vast enterprise "by definition and common 
knowledge, is a key and vital position." 
Counsel contends that all criteria for managerial capacity, as set forth at section 101(a)(44)(A) of the Act, 
have been met. Specifically, counsel asserts that the beneficiary, as "master chef in charge of the Bakery 
Department," manages the "essential function and key component of the business." Counsel further contends 
that the beneficiary oversees three Assistant Controllers, who are professional employees, and 30 first chefs, 
who are supervisory staff responsible for overseeing second chefs, assistant chefs and other kitchen workers. 
Counsel asserts that the beneficiary's duties include human resources functions, and the authority to recruit, 
monitor, evaluate and fire employees. Finally, counsel asserts that he beneficiary exercises discretion over 
the day-to-day operations of the bakery department by monitoring industry trends, coordinating market 
research, making decisions regarding the company's menu, and designing promotional items. 
Counsel emphasizes that the petitioner need only establish that the beneficiary's duties are primarily 
managerial, as long as the petitioner establishes that the beneficiary holds a high level of responsibility and 
does not spend the majority of his time on day-to-day operations. Counsel asserts that, upon review of the 
totality of the evidence, it was not reasonable for the director to conclude that the beneficiary spends a 
majority of his time conducting the non-managerial day-to-day operations of the foreign entity. 
Upon review of the petition and the evidence, and for the reasons discussed herein, the petitioner has not 
established that the beneficiary has been employed by the foreign entity in a primarily managerial or 
executive capacity. 
As noted by counsel, 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 petitioner has submitted a fairly 
detailed description of the beneficiary's duties, the evidence as a whole does not clearly convey his actual 
level of authority within the foreign entity's overall organization. As such, it cannot be concluded that his 
level of authority or actual day-to-day duties rise to the level of an employee who works in a primarily 
managerial capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.P.R. § 214.2(l)(3)(ii). The petitioner's description of the job 
Page 13 
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 petitioner indicates that the beneficiary spends 40% of his time "assisting the Kitchen Manager and 
Assistant Kitchen manager in overseeing the daily operations of the bakery department and the manufacturing 
plant" and also "coordinating activities among various departments." Based on the organizational chart 
submitted, it appears that the foreign entity's bakery department includes two major divisions (pastry and 
bread), and has at least seven different sub-departments and hundreds of employees. It is unclear to what 
extent the beneficiary could be considered responsible for overseeing "the bakery department" or "the 
manufacturing plant" given that he appears to be responsible for employees within a single department. While 
the organizational chart does confirm that the beneficiary reports to the assistant kitchen manager, the 
petitioner has not adequately explained the scope of his authority. It appears that overall control for the entire 
department lies with the beneficiary's superiors. For the same reason, the petitioner's statement that the 
beneficiary is responsible for the entire factory's inventory, equipment and supplies is not supported by the 
organizational structure depicted in the foreign entity's chart. 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). Furthermore, the petitioner failed to 
clearly articulate exactly how the beneficiary assists in oversight of the bakery department and manufacturing 
plant or what specific duties this responsibility entails. 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. Sava, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The AAO notes that the beneficiary's responsibility for administrative and human resources functions 
associated with recruiting and training new chefs, may contain some qualifying managerial duties. However, 
some of the tasks included in this responsibility, such as directly training employees and scheduling work 
hours, are not clearly managerial in nature. Further, in order to establish that the beneficiary'S supervisory 
responsibilities are qualifying managerial duties, the petitioner must establish that the beneficiary supervises a 
subordinate staff comprised of supervisory, professional, or managerial employees. Although the foreign 
entity's partially translated organizational chart depicts several tiers of employees below the beneficiary, an 
employee will not be considered to be a supervisor simply because of a job title, because he or she is 
arbitrarily placed on an organizational chart in a position superior to another employee, or even because he or 
she supervises daily work activities and assignments. Rather, the employee must be shown to possess some 
significant degree of control or authority over the employment of subordinates. See generally Browne v. 
Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (Cited in Hayes v. Laroy Thomas, 
Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11,2007)). 
Although requested by the director, the petitioner did not provide names, job descriptions or educational 
requirements for all employees who worked under the beneficiary's supervision in the foreign entity's bakery 
department. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. § 103.2(b)(l4). Accordingly, the petitioner has not met its burden to 
establish that any of the beneficiary's subordinates are employed in positions that are managerial, supervisory 
or professional in nature. We acknowledge counsel's assertion that the beneficiary'S subordinates include 
three professional assistant controllers and 30 "first chefs" who act as supervisors. However, without 
Page 14 
documentary evidence to support the claim, the assertions of counsel will not satisty the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). If the petitioner wanted this information to be considered, it should have 
submitted a complete response to the director's request for evidence, including a full certified English 
translation of the foreign entity's organizational chart and job descriptions for the beneficiary's subordinates. 
Because the petitioner failed to submit the requested certified translation of the organizational chart, the AAO 
cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. § 103.2(b)(3). 
The petitioner has not established that the beneficiary is primarily engaged in directing and controlling a 
subordinate staff of professional, managerial or supervisory personnel such that he qualifies for the benefit 
sought as a "personnel manager." See section 101(a)(44)(A)(ii) of the Act 
The petitioner indicates that the beneficiary devotes the remaining 30 percent of his time to "monitoring 
industry trends, developing new recipes and conducting market research," a duty that includes coordinating 
with subordinate chefs, franchisee managers, store managers, implementing menus and determining the need 
for variety and seasonal fluctuations in product offerings. While making decisions about the foreign entity's 
menu may require a fairly high level of authority, the petitioner once again failed to clearly identity the scope 
of the beneficiary's authority. The beneficiary is clearly not charged with determining the foreign entity's 
organization-wide menu and product offerings. At most, it appears that he may be responsible for a specific 
bakery department which has not been clearly identified. The AAO concurs with the director's finding that 
market research duties do not fall within the definition of "managerial capacity." 
Overall, while it appears that the beneficiary does possess authority over a component of the foreign entity's 
expansive bakery department, the petitioner's description of the beneficiary's duties is insufficient to establish 
that the majority of his duties are managerial in nature. This failure is based largely on the petitioner's failure 
to support its statements by providing a complete certified English translation of the foreign entity's 
organizational chart clearly identitying the beneficiary'S level and area of authority, and its failure to provide 
the requested job descriptions and other requested information pertaining to the beneficiary'S claimed 
subordinate employees. Again, the failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. § I 03.2(b )(14). 
The AAO acknowledges counsel's claims that the beneficiary is a "master chef in charge of the Bakery 
Department," and that he manages the "essential function and key component of the business." As noted 
above, 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 !o1(a)(44)(A)(ii) of the Act, 8 U.s.C. § I !o1(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 clearly describe the duties to be performed in managing the essential 
function, i.e. identity 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). 
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 
Page 15 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from perfonning operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. In the 
case of a function manager, where no subordinates are directly supervised, these other factors may include the 
beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, 
the scope of the beneficiary's authority and its impact on the petitioner's operations, the indirect supervision 
of employees within the scope of the function managed, and the value of the budgets, products, or services 
that the beneficiary manages. 
As briefly discussed above, the petitioner's claim that the beneficiary is "in charge of the Bakery Department" 
is simply not supported by the other evidence in the record. The petitioner's organizational chart, although 
only partially translated, depicts the beneficiary as being several tiers below the management of the entire 
bakery department, and thus does not support a finding that the beneficiary functions at a senior level within 
the organizational hierarchy or with respect to the function he is claimed to manage. See section 
IOI(a)(44)(A)(iii) of the Act. Rather, the petitioner states that the beneficiary assists the assistant kitchen 
manager in overseeing the department. The assistant kitchen manager appears to have over 80 additional 
direct reports who mayor may not hold a similar level of authority compared to the beneficiary. In addition, 
the petitioner has not clearly identified which component of the bakery department falls within the 
beneficiary's area of responsibility nor demonstrated how such component rises to the level of an "essential 
function." 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'r. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r. 1972». While we 
acknowledge that the beneficiary holds a certain level of authority within a vast bakery facility, the record 
does not adequately document the scope of the beneficiary's authority and its impact on the petitioner's 
operations. The petitioner has not adequately supported its claim that the beneficiary qualifies for the benefit 
sought as a function manager. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity. For this additional reason, the appeal will be 
dismissed. 
III. Conclusion 
The petition will be denied and the appeal dism issed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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.