dismissed L-1A Case: Business Consulting And Accounting

U.S. ~e~artment of Homeland Security 
20 Massachusetts Ave N W , Rrn 3000 
U. S. Citizenship 
and Immigration 
Services I 
File: SRC 03 224 50801 Office: TEXAS SERVICE CENTER Date: DE~ 0 8 a@ 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
<, 
SRC 03 224 50801 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petitlon for a nonimmigrant visa and 
affirmed her declsion on a subsequently filed motion to reconsider. , The matter is now before the 
Admlnlstratlve Appeals Office (AAO) on appeal. The AAO will dlsmiss the appeal. 
The petitioner filed thls nonimmigrant petition seeking to extend the employment of its financial manager as 
an L-1 A nonimmigrant lntracompany transferee pursuant to sectlon 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. fj 1101(a)(15)(L). The petitioner is a Texas corporation that claims to be 
engaged in the provision of business consulting and accounting serv1ces:The petitioner states that it is a 
subsidiary of Farmacia El Picacho, C.A., located in Venezuela. The beneficiary was initially granted a one- 
year penod in L-1A status to be employed in a new office and the petitioner now seeks to extend the 
beneficiary's stay for three additional years. 
The director denied the petition on February 18, 2005, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The petitioner subsequently filed an appeal on April 1, 2005', which the director treated as a motion 
to reconsider pursuant to the regulation at 8 C.F.R. fj 103.3(a)(2)(v)(B)(2). The director affirmed her previous 
decisiion in a decision dated April 15,2005. 
The petitioner subsequently filed the instant appeal. The director declined to treat the appeal as a motion and 
forwarded it to the AAO for review. On appeal, counsel for the petitioner asserts that the director erroneously 
concluded that the beneficiary would not be supervising professional employees, and that the previously 
submitted evidence establishes that the beneficiary would act in a managerial or executive capacity. Counsel 
further claims that the petitioner's operations have expanded significantly since the instant petitlon was filed, 
resulting m greater responsibllitles for the beneficiary, and an increase in the number of employees supervised 
by him. Counsel submits new and previously submitted evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
1 
 The Form I-290B, Notice of Appeal was initially received by the Texas Service Center on March 18, 2005, 
 \ 
28 days after the director's decision. However, on March 21, 2005, the appeal was returned to counsel 
because the version of the Form I-290B on which the form was submitted had been replaced by a newer 
version as of March 5,2005. The petitioner re-filed the appeal on the new Form I-290B on April 1,2005. The 
MO notes that the appeal should have been accepted as timely filed under the circumstances, particularly as 
the new version of the Form I-290B became available only subsequent to the director's February 15, 2005 
decision and was therefore not provided to the petitioner. 
SRC 03 224 50801 
,. 
Page 3 
The regulation at 8 C.F.R. § 21'4.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, 'managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
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 regulation at 8 C.F.R. 
 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined-in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
,(E) 
 Evidence of the financial status of the United States operation. 
 , 
The issue in the present matter is whether the petitioner established that the beneficiary will be employed by 
the United States entity in a primarily managerial or executive capacity under the extended petition. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 
 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
SRC 03 224 50801 
Page 4 
(1) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(11) 
 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 I 
(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. tj 1101(a)(44)(B), defines the term "executive capacityi' 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 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonimrnigrant petition was filed on August 13, 2003. In an undated letter submitted m support of the 
petition, the petitioner provided the following description of the duties performed by the beneficiary as the 
U.S. company's financial manager: 
[The beneficiary] has been in charge directly of our financial department. He also is 
responsible for establish [sic] goals and standards of our company in terms of strategic 
associations to create internal procedures and select managerial and non-managerial 
personnel. [The beneficiary] has day-to-day discretionary authority in coordinating and 
directing the work of our company. 
Counsel further addressed the beneficiary's dutles in an undated letter which accompanied the petition filing, 
I 
noting that the beneficiary is responsible for "proper execution of the financial work" of the company, 
SRC 03 224 50801 
Page 5 
evaluating financial department personnel, and recommending the firing of personnel. 
 The petitioner 
indicated that the company had ten employees as of the date of filing. Counsel referenced the statutory 
definition of "managerial capacity," and noted that "the management of a certain number of employees is not 
a prerequisite for the attainment of L-1 status." Counsel emphasized that it is "solely necessary that the 
position be one of supervision of a function within the organizatlon." 
The petitioner submitted an organizational chart showing the staffing of the U.S. company as of June 30, 
2003. The chart depicts the beneficiary as "Accounting & Finance Manager," with responsibility for 
overseeing one assistant and three "accountant assistants." The chart indicates that the beneficiary reports to 
the company's general manager. Notably, the organizational chart shows that an employee identified as 
serves as the company's sales manager in a position which is at the same level as the 
beneficiary's within the company's organizational hierarchy, also reporting to the general manager. The 
petitioner submitted its Flonda Form UCT-6 for the second quarter of 2003, which confirmed the 
employment of the ten employees identified on the petiboner's organizational chart as of June 30,2003. 
The director issued a request for additional evidence on March 20,2004. The director instructed the petitioner 
to submit documentary evidence of the U.S. company's current staffing level as well as a definitive statement 
describing the U.S. employment of the beneficiary, to include the number of employees who report dlrectly to 
the beneficiary, a brief description of their job titles and duties, and their educational background. The 
director advised that if the beneficiary does not supervise other employees, the petitioner should identify the 
essential function of the organization he manages. 
In a response dated June 8, 2004, counsel for the petitioner provided the following description of the 
beneficiary's duties: 
He is directly in charge of the Financial Department (directs the organization financial goals, 
objectives and budgets). He directs the preparation of financial reports that summarize and 
forecast the organization financial position; he oversees to [sic] accountant assistants; Directs 
and coordinate [sic] activities to implement institution policies, procedures and practices; 
prepares and review [sic] operational reports and schedules to ensure accuracy and efficiency; 
analyses internal processes and schedules to ensure accuracy and efficiency; analyzes internal 
processes and recommend and implement procedures or policy changes; accounting 
procedures; directly supervises and reviews the work of accountants and bookkeepers; 
examines and evaluates financial and information systems; coordinates and directs the 
financial planning, budgeting and procurement activities of the .organization; lead staff 
training and development in budgeting and financial management areas[.] He has day-to-day 
discretionary authority in coordinating and directing the work of the company[.] 
The petitioner indicated that the company's other employees include an accountant (-ho was 
previously identified as the company's sales manager); a-bookkeeper who was previously 
identified as "accountant assistant"); a manager ( who was previously identified as the 
company's general manager); a sales managerlmarketmg - ( , who signed the company's initral 
supporting letter as the company's president); and an assistant ( -, who was not listed on the 
SRC 03 224 50801 
Page 6 
previous organizational chart). Counsel indicated that the beneficiary supervises the accountant and the 
bookkeeper and provided job descnptions for both positions. 
,- 
The petitioner submitted evidence that possesses the equivalent of a bachelor's degree in 
accounting, and evidence that Angelica Beltran is qualified as a public accountant in Colombia. The 
petitioner also provided its Florida Forms UCT-6, Employer's Quarterly Report, for the fourth quarter of 
2003 and the first quarter of 2004, and copies of the U.S. company's IRS Forms W-2, wage and Tax 
Statement for 2003. A comparison of the Forms W-2 and the previously submitted Form UCT-6 for the 
second quarter of 2003 confirms that three of the four employees identified as the beneficiary's subordinates 
on the original organizational chart were employed during the second quarter of 2003 only, and were 
therefore not on the petitioner's payroll as of the date the petition was filed. The petitioner employed four 
employees during the fourth quarter of 2004. 
The director denied the petition on February 18, 2005, concluding that the petitioner had failed to establish 
that the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director observed that the petitioner's organizational chart indicates that the beneficiary is a first 
line supervisor, and noted that the petitioner's description of the employees' duties and qualifications shows 
that the employees who work under the beneficiary's direction are neither professionals nor supervisors. The 
director further found that the petitioner failed to establish that the beneficiary would be employed as a 
functional manager. The director noted that as of the filing date of the petition, the U.S. company had not 
grown to a point where the beneficiary would function at a senior level within an organizational hierarchy or 
with respect to a function. 
The petitioner filed an appeal on March 18, 2005, which was rejected by the director as improperly filed. The 
appeal was re-filed and accepted on April 1,2005. In an attachment to Form I-290B, counsel asserted that the 
petitioner "described the employment of the beneficiary, the position and duties of personnel directly 
supervised by the beneficiary and evidence of their professional category . . . demonstrating by this way, that 
the beneficiary acts in a managerial and executive capacity." Counsel re-submitted his June 8,2004 response 
to the request for evidence and copies of the educational documents for the beneficiary's claimed 
subordinates. 
Counsel further asserted that the size of the company and the scope of the beneficiary's responsibility had 
increased significantly since the petition was filed and submitted evidence of the company's staffing levels as 
of January 2005, in the form of an organizational chart, a letter from the petitioner, and copies of the 
company's 2004 Forms W-2,-Wage and Tax Statement. On the petitioner's new organizational chart, the 
beneficiary is depicted as the petitioner's financial and operation manager with supervisory responsibility for 
an accounting manager, two sales managers, an operations coordinator, and four operations supervisors, who 
in turn supervise a total of more than 50 contractors. 
8. 
The director considered the appeal to be untimely, but reopened the matter as a motion to reconsider pursuant 
to 8 C.F.R. 5 103.3(a)(2)(v)(B)(Z). In a decision dated April 15, 2005, the director affirmed her previous 
determination that the beneficiary would not be employed in a managerial or executive capacity. The director 
SRC 03 224 50801 
Page 7 
noted that the petitioner's recent growth would not be taken into consideration, as the petitioner must 
establish eligibility for the classification sought as of the date of filing. 
\ 
The director observed that the petitioner had submitted inconsistent information regarding its staffing levels, 
and specifically noted the following: 
Petitioner lists several persons who report to the beneficiary. Of these two have degrees. 
However the petitioner's Organziational [sic] chart, purported to be from June 30, 2003 is in 
conflict with their statements. Although petitioner claims that y is an accountant 
1 
under the beneficiary's direction, the organizational chart 
 is "Sales 
Manager" and that both he and the beneficiary report directly to 
beneficiary is not a manager based on supervising 
 Petitioner submitted 
evidence that is qualified to perform the functions of a professional 
, 
 accountant. However, the organizational chart and petitioner's letter both indicate that she is a 
bookkeeper. . . . Therefore, the beneficiary is not supervising the work of professionals. . . . 
and is therefore, a first line supervisor of non-professional and non-supervisory workers. 
The instant appeal of the director's April 15, 2005 decision was filed on May 16, 2005. Counsel for the 
petitioner re-submits the previous appeal and supporting documents and requests that it be treated as timely 
filed on March 18, 2005. Counsel does not address the specific deficiencies and inconsistencies enumerated 
by the director in her April 15,2005 decision. 
Upon review of the petition and supporting evidence, the petitioner has not established that the beneficiary 
will be employed in a managerial or executive capacity under the extended petition. When examining the 
executive or managerial capacity of the beneficiary, the MO will look first to the petitioner's description of 
the job duties. See 8 C.F.R. fj 214.2(1)(3)(11). The petitioner's descnption 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 petitioner initially submitted a vague and nonspecific job description which failed to convey an 
understanding of the managerial or executive duties to be performed by the beneficiary on a day-to-day basis. 
For example, the petitioner indicated that the beneficiary would "establish goals and standards of our 
company in terms of strategic associations," "coordinate the day-to-day operations of the business," exercise 
"day-to-day discretionary authority in coordinating and directing the work of office's departments," and "can 
recommend and firing of personnel." These statements merely paraphrase portions of the statutory definitions 
of managenal and executive capacity. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $5 
1 10 1 (a)(44)(A) and (B). 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. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). 
In response to the director's request for a definitive statement descnblng the beneficiary's U.S. employment 
capacity, the petitioner provided a slightly lengthier, yet equally vague account of the beneficiary's duties. For 
SRC 03 224 50801 
Page 8 
example, the petitioner stated that the beneficiary is "in charge of the Financial department," "has day-to-day 
discretionary authority in coordinating and directing the work of the company," "analyses [sic] internal 
processes7' and recommends policy changes, "directs and coordinate[s] activities to implement institution 
policies, procedures and practices," and prepares and reviews "operational reports." The petitioner did not 
identify the specific tasks the beneficiary performs to manage the department or to coordinate and'direct the 
work of the company, nor did it specify what activities the beneficiary "directs" to implement policies, or 
describe the types of reports the beneficiary prepares, reviews and analyzes. 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 has 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. Suva, 724 F. Supp. at 1108. The AAO will not 
speculate as to the managerial or executive job duties to be performed by the beneficiary in connection with 
being "in charge" of the "financial department." The petitioner's description of the beneficiary's duties does 
not describe the actual duties to be performed by the beneficiary, such that they could be classified as 
'managerial or executive in nature. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10 1 (a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 10 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)(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)(ii)(B)(3). 
Counsel claims on appeal that the petitioner submitted sufficient evidence to establish that the beneficiary will 
supervise two professional employees. However, neither counsel nor the petitioner acknowledges or attempts 
to explain the discrepancies in the evidence submitted with respect to the beneficiary's subordinate staff. The 
initial organizational chart submitted depicted the staff of the U.S. company as of June 30, 2003 and showed 
that the beneficiary supervised an assistant, and three accountant assistants, including The 
assistant and two of the three accountant assistants appear to have left the company prior to the filing of this 
petition, as their total wages for the year were paid during the second quarter. The petitioner indicated on the 
same organizational chart that s the company's sales manager, who, like the beneficiary, reports 
to the general manager of the company. In response to the director's evidence. the ~etitioner indicated that 
- - 
the beneficiary supervises 
II and- 
d changed the job titles of these employees, 
respectively, to "bookkeeper 
 accountant." 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). Due to this unexplained discrepancy in 
Mr. s actual job title and position within the petitioner's organizational hierarchy, the evidence of 
record does not persuasively demonstrate that the beneficiary supemsed this employees as of the date of 
filing. 
SRC 03 224 50801 
Page 9 
Therefore, the record demonstrates that the beneficiary supervised 'one employee, who either served as a 
bdokkeeper or an "accountant assistant." In evaluating whether the beneficiary manages professional 
employees, the MO must evaluate whether the subordinate position requires a baccalaureate degree as a 
minimum for entry into the field of endeavor. Section .lOl(a)(32) of the Act, 8 U.S.C. fj 1101(a)(32), states 
that, "[tlhe 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 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 ofling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11'1&~ Dec. 686 (D.D. 1966). 
Therefore, the MO must focus on the level of education required by the position, rather than the degree held 
by a .subordinate employee. The beneficiary's subordinate appears to be qualified to perform professional 
duties as an accountant. However, 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. In the instant' case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary, for example, to perform the duties of a bookkeeper or assistant. Accordingly, the director 
reasonably concluded that the beneficiary would not supervise professional personnel. 
Without a comprehensive description of the beneficiary's duties, the director reasonably reviewed the 
petitioner's staffing levels as a factor in determining whether he would be employed in a managerial or 
executive capacity. The petitioner's general description of the beneficiary's duties cannot be read or 
considered in the abstract, rather the MO must determine based on a totality of the record whether the 
description of the beneficiary's duties represents a credible perspective of the beneficiary's role within the 
 . 
organizational hierarchy. Pursuant to section 10 1 (a)(44)(C) of the Act, 8 U.S.C. fj 1 10 1 (a)(44)(C), if staffing 
levels are used as a factor in determining whether an individual is acting in a managerial or executive 
' capacity, CIS must take into account the reasonable needs of the organization, in light of the overall purpose 
and stage of development of the organization. In the present matter, however, the regulations provide strict 
evidentiary requirements for the extension of a "new office" petition and require CIS to examine the 
organizational structure and staffing levels of the petitioner. 
 See 8 C.F.R. 5 214.2(1)(14)(ii)(D). 
 The 
regulation at 8 C.F.R. fj 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of 
approval of the petition to support an executive or managerial position. There is no provision in CIS 
regulations that allows for an extension of this one-year period. If the business does not have sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and administrative 
tasks, the petitioner is ineligble by regulation for an extension. 
The evidence submitted does not establish the petitioner's actual staffing levels as of August 2003, however, 
the MO notes that the company employed ten workers during the second quarter of 2003 and only four 
workers during the fourth quarter of 2003. A comparison of the Form UCT-6, Employer's Quarterly Report, 
and the Forms W-2 issued by the petitioner in 2003 shows that six of the ten employees listed on the Form 
UCT-6 worked only during the second quarter of that year and were thus not employed as of the date of filing. 
Therefore, at most, the record establishes that the company had five employees as of the date of filing, as 
there appears to have been one other employee, James Guzman, who was employed as of the date of filing, 
SRC 03 224 50801 
Page 10 
although his job title and duties have not been &fined. The petitioner claims to be engaged in the provision of 
business and financial consulting services, but the petitioner has not established that it employed any ' 
consultants who would perform these services for the company's clients. For this reason, the job descriptions 
provided for the beneficiary and the' other employees are not credible. Based on the petitioner's 
representations, it does not appear that the reasonable needs of the petitioner's service-oriented business might 
plausibly be met by the services of the beneficiary as finance manager, a general manager, a sales manager, a 
bookkeeper/accountant assistant, and one other employee. Regardless, the reasonable needs of the petitioner 
serve only as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or 
executive duties. The petitioner must still establish that the beneficiary is to be employed in the United States 
in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As 
discussed above, the petitioner has not established this essential element of eligibility. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 l(a)(44)(A)(ii) of the Act, 8 U.S.C. 9 1 10 1 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
, 
 essential function, the petitioner must provide a detailed position description which identifies the function 
with specificity, articulates the essential nature of the function, and establishes the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 8 214.2(1)(3)(11). In 
addition, the petitioner's descnption of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. An employee who primarily 
performs the tasks necessary to produce a product or to provide semces is not considered to be "primarily" 
employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 
576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornrn. 
1988)). 
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 failed to provide a credible description of the beneficiary's actual duties, 
or a breakdown of the percentage of time he allocates to managerial versus non-managerial duties. For this 
reason, the AAO cannot determine whether the beneficiary is primarily performing the duties of a function 
manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. ,1999). 
On appeal, the petitioner provides evidence of the company's growth subsequent to the filing of the petition, 
and submits a new organizational chart showing the beneficiary's current position as finance and operations 
manager. However, the petitioner must establish that the position offered to the beneficiary when the petition 
was filed merits classification as a manage;ial or executive position. Matter of Michelin Tire Corp., 17 I&N 
Dec. at 249. The regulation at 8 C.F.R. 9 214.2(1)(3)(v)(C) allows the intended United States operation one 
year within the date of approval of the petition to support an executive or managerial position. There is no 
provision in CIS regulations that allows for an extension of this one-year period. If the business is not 
sufficiently operational after one year, the petitioner is ineligible by regulation for an extension. 
SRC 03 224 50801 
Page 11 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a pnmarily managerial or executive capacity under the extended petition. For this reason, the appeal will 
be dismissed. 
Beyond the decision of the director, the petitioner has not submitted evidence that the beneficiary was 
employed by the forergn entity in a managerial or executive capacity, as required by 8 C.F.R. 8 
2142(1)(3)(iv). Counsel for the petitioner indicated in his initial supporting letter that the beneficiary served 
as the foreign entity's financial manager, noting that his "supervrsory duties over various employees, his 
management of the various areas, and the Organization's description of his job duties, all verify that he was 
employed with the foreign company in and [SIC] 'Executive' or 'Supervrsory' capacity, as is understood by 
the Act." The director subsequently requested a definitive statement descnbing the beneficiary's employment 
with the forergn entity. In reply, the petitioner submitted job descnptions for the bookkeeper and 
adminrstrative assistant positions previously supervised by the beneficiary, but provided no further 
explanation regarding the beneficiary's duties as financial manager. The farlure to submit requested endence 
that precludes a material line of rnquiry shall be grounds for deny~ng the petition. See 8 C.F.R. tj 103.2(b)(14). 
It cannot be determined that the beneficiary served in a managerial capacity based upon his management of 
"various areas" or his supervision of two non-professional personnel. For this additional reason, the appeal 
will be dismissed. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003);'see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO renews 
appeals on a de novo basis). 
The petition will be denied and the appeal dismissed 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. fj 1361. 
Here, that burden has not been met. 
, 
ORDER: The appeal is dismissed.