dismissed L-1A Case: Business Management

identifying data deleted to 
prevent cfwIy tmwmnted 
invasi~ln of pnsonal privacy 
PUBLIC COPY 
U.S. Department of Jlomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 05 146 50844 Office: CALIFORNIA SERVICE CENTER Date: N~V 2 8 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
, pLpZL 
obert P. ~:emann, Chief 
' Administrative Appeals Office 
WAC 05 146 50844 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner, a California corporatio 
petitioner states that it is a subsidiary of 
in China. Accordingly, the United Sta 
(USCIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-1A) pursuant to 
section 101(a)(15)(L) of the Act (the Act), 8 U.S.C. $ 1101(aj(15)(L). The beneficiary was initially 
granted L-1A classification for a period of one-year to open a-new office in the United States, and the 
petitioner now seeks to extend the beneficiary's stay in order to continue to fill the position of vice 
presidenthusiness manager for a two-year period. 
The director denied the petition concluding that the record contains insufficient evidence to demonstrate 
that the beneficiary will be employed in a managerial or executive capacity. The director specifically 
noted several discrepancies between the organizational chart of the U.S. company submitted by the 
petitioner with the original petition and the U.S. company's chart submitted in response to the director's 
request for evidence. In addition, the director- stated that it appears the beneficiary will not supervise a 
subordinate staff of professionals or managers. 
On appeal, the petitioner states that the beneficiary is employed in a managerial and executive capacity as 
demonstrated in the detailed job description previously dmitted. In addition, the petitioner states that 
the beneficiary will supervise managers and professionals since the job duties his subordinates perform 
are sufficiently complex, and since the managers will in turn supervise other employees. The petitioner 
further asserts that the beneficiary's position is in an executive capacity since "the beneficiary's position 
does in fact involve significant authority over generalized policy of an organization or major subdivision 
of an organization." Finally, the petitioner clarifies the discrepancies listed by the director in the decision 
by stating that the positions listed in the original U.S. organizational chart are the same positions listed in 
the U.S. chart submitted in response to the director's request for evidence. The petitioner submits a brief 
and supporting documentation in support of the appeal. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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) firther 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. 
WAC 05 146 50844 
Page 3 
(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 hirnlher 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 (I)(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 to be addressed in this proceeding is whether the petitioner has established that the beneficiary 
will be employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment with an organization in which the employee 
primarily- 
(i) 
 manages the organization, or a department, subdivision, function, or component of the 
organization; 
WAC 05 146 50844 
Page 4 
(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 withn 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. $ 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment withln 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-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The nonirnmigrant petition was filed on April 25,2005. The Form 1-129 indicates that the beneficiary will be 
employed in the position of vice president/business manager for the petitioner, and the petitioner has five 
employees in the United States. In a support letter dated April 1, 2005, the beneficiary's proposed duties are 
described as the following: 
i 
1. To assist President in subsidiary's day-to-day overall business management and operations 
such as business policy and strategy formulation, budget planning, employment hiring (20% 
of her total time); 
2. To act as President to be responsible for the Petitioner's overall business management and 
operations in the absence of Presid~nt (510%) of her total time); 
3. Organize and attend major business talks with other companies, including wholesalers and 
retailers and agents, and sign contracts (20% of her total time); 
4. 
 [Flormulate and administrate sales strateges such as studying and establishing sales 
territories, quotes, and goals; review sales reports to adjust sales programs in connection 
with market needs, volume potential, price schedules and discount rates, and develop sales 
WAC 05 146 50844 
Page 5 
campaigns to accommodate goals of company; and direct staffing and training to develop 
and control sales programs.. . and tap new market areas (30% of her total time); 
5. Formulate and administrate sales strateges such as studying and establishing sales 
territories, quotas and goals (15% of her total time), and 
6. Direct staffing and training to develop and control sales programs (5-10% of her total time). 
In addition, the petitioner submitted an organizational chart for the U.S. entity indicating the beneficiary 
supervises the business department, warehouse department, administrative department and finance 
department. According to the submitted chart, the beneficiary will supervise one manager in the 
administrative department, one manager and one assistant manager in the warehouse department, and one 
manager in the finance department. The same individual is employed in the positions of administrative 
department manager and finance department manager. In addition, the beneficiary will also function as the 
business department manager and will supervise an assistant. The organizational chart also indicates that the 
U.S. entity has commissioned salespersons and assistants. The petitioner also submitted its California Form 
DE-6, Quarterly Wage Report and Withholding Report, for the first quarter of 2005, which confirms the 
employment of the individuals named on the organizational chart. 
On May 12, 2005, the director requested that the petitioner submit additional evidence in support of its 
petition. In part, the director requested the following: a copy of the U.S. organizational chart including the 
names of all executives managers and supervisors, and number of employees withn each department; a job 
description, educational level and annual salaries for all employees under the beneficiary's supervision; 
copies of the U.S. company's payroll summary, Form W-2 and W-3 evidencing wages paid to employees for 
2003 and 2004; a list of the specific goals and policies the beneficiary has established over the last six 
months; a list of the specific discretionary decisions the beneficiary has exercised in the last six months; 
evidence that the higher level executives, the board of directors, or stockholders of the organization required 
only general supervision of the beneficiary; and, a specific day-to-day description of the duties the 
beneficiary has performed over the last six months. 
In response to the director's request, the petitioner submitted a letter dated May 30, 2005, indicating that the 
beneficiary's position is vice presidentlbusiness manager and the petitioner reiterated the job duties 
previously submitted with the orignal petition. In addition, the petitioner indicated that the position of 
President at the U.S. company is not currently filled by any individual, thus the beneficiary will also perform 
the following duties as acting president: 
1. Plan and develop company policies and implement goals through subordinate 
administrative personnel; 
2. Coordinate activities of department to effect operational efficiency and economy; design 
and develop new products to meet market needs; 
3. Approve and allocate company budget, analyze department budget requests to identify 
areas in which reduction can be made; 
4. Confer with administrative personnel, review activity, operation, and sales reports to 
determine changes in operations required; 
5. Direct preparation of directives to departmental administrators outlining policies, 
programs, or operations improvements; 
6. Coordinate the relationship between the Petitioner and the Parent Company; and 
WAC 05 146 50844 
Page 6 
7. Hire, fire, and train managerial employees. 
In addition, the petitioner submitted a specific day-to-day description of the duties the beneficiary has 
performed over the last six months as requested by the director. The duties are described as the following: 
Because the beneficiary is principally responsible for the overall management of the 
petitioner, her duties in a "typical day" will focus on monitoring the llly achievements of 
the goals of [sic], and coordinating the smooth operations of the departments of the 
Petitioner. Since the most important normal daily business of the Petitioner will come from 
the activities of the Marketing Department and the Financial Department, the Beneficiary 
will direct management and operations of the above two departments through their 
managers. Typically, she will make final decisions regarding contract negotiations and sign 
the contracts on behalf of the Petitioner and sometimes participate in the negotiations 
involving big contracts; solve the managerial and executive problems arising among the 
departments by summoning meetings of all department managers; coordinating the business 
operations of the departments for daily business; evaluating the business reports of all 
departments especially the Marketing Department and adjust the business goals according to 
the market tendency with the department manager; contacts personally [sic] to find new 
client and new markets in the US and in South American countries; coordinating the 
business between the Petitioner and its parent company in China in respect of financial 
strategy and business goals of the Petitioner so that the parent company can provide 
necessary business assistance and vice versa. 
The petitioner also re-submitted an organizational chart of the U.S. company, and a brief job description and 
the educational level of all the beneficiary's subordinates. The organizational chart for the U.S. company is 
the same as the previously filed organizational chart and it indicates that the beneficiary will supervise the 
business department, warehouse department, administrative department and finance department. Thus, the 
chart indicates that the beneficiary will supervise one manager in the administrative department, one manager 
and one assistant manager in the warehouse department and one manager in the finance department. The 
same individual is employed in the positions of administrative department manager and finance department 
manager. In addition, the chart shows that the beneficiary will also function as the business department 
manager and will supervise an assistant. 
The petitioner also submitted job descriptions for the four employees supervised by the beneficiary. The job 
titles stated in the petitioner's letter dated May 30, 2005 are slightly different from the job titles stated in the 
U.S. organizational chart. The job title of assistant warehouse manager on the U.S. organizational chart is 
stated as warehouse manager in the petitioner's support letter. In addition, the U.S. organizational chart 
indicates one assistant for the business department, but the petitioner states the job title as sales and business 
person in its response to the director's request for evidence. 
The director denied the petition on August 5, 2005 on the ground that the petitioner did not establish that 
the beneficiary would be employed in a primarily managerial or executive capacity. The director also 
noted that the evidence does not support a finding that the petitioner will be supervising a subordinate 
staff of professionals or managers. In addition, the director noted that two job titles listed on the 
WAC 05 146 50844 
Page 7 
organizational chart were listed differently in the petitioner's response to the director's request for 
evidence. 
On appeal, the petitioner asserts that the petitioner submitted a detailed job description for the position of 
vice president/business manager, which establishes that the beneficiary will be primarily engaged in 
managerial and executive duties. In addition, the petitioner states that the beneficiary will supervise 
professional employees and lower-level managers. Finally, the petitioner states that there are no 
discrepancies in the job titles listed in the U.S. organizational chart, and it submitted both the 
organizational chart submitted with the original petition and the organizational chart submitted in 
response to the director's request for evidence. 
The petitioner's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not 
established that the beneficiary would be employed in a managerial or executive 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.F.R. 4 214.2(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 prove 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 discretion over the day-to-day operations of the business, 
the petitioner's description of her proposed duties suggest that the beneficiary's actual duties include a 
number of non-managerial and non-executive duties. 
The beneficiary's proposed job description includes vague duties such as the beneficiary will "assist 
President in subsidiary's day-to-day overall business management and operations such as business policy and 
strategy formulation, budget planning, employment hiring," and will be "responsible for the Petitioner's 
overall business management and operations in the absence of President." The petitioner does not explain 
how the beneficiary will perform these requirements and what exactly are the goals and policies of the 
petitioner. 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 her 
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 petitioner's descriptions of the beneficiary's position do not 
identify the actual duties to be performed, such that they could be classified as managerial or executive in 
nature. 
In addition, the job duties required of the beneficiary include non-qualifying duties such as the beneficiary 
will "organize and attend major business talks with other companies, including wholesalers and retailers and 
agents, and sign contracts," "formulate and administrate sales strategies such as studying and establishing 
sales territories, quotes, and goals," "develop sales campaigns to accommodate goals of company," and 
WAC 05 146 50844 
Page 8 
"formulate and administrate sales strategies such as studying and establishing sales territories, quotas and 
goals." It appears that the beneficiary will be directly performing the sales and marketing activities of the 
business rather then directing such activities through subordinate employees. An employee who "primarily" 
performs the tasks necessary to produce a product or provide a service is not considered to be "primarily" 
employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring 
that one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology International, 19 I & N Dec. 593,604 (Cornm. 1988). 
In the instant matter, the job description submitted by the petitioner provides little insight into the true 
nature of the tasks the beneficiary will spend on various duties. While the petitioner has provided a 
breakdown of the percentage of time the beneficiary will spend on various duties, the petitioner has not 
articulated whether each duty is managerial or executive. Thus, the AAO must attempt to glean the 
nature of the beneficiary's proposed duties from the vague descriptions submitted. 
The petitioner indicated that the beneficiary will spend 20 percent of her time to "attend major business 
talks with other companies, including wholesalers and retailers and agents, and sign contracts." Without 
additional clarification from the petitioner regarding the managerial or executive duties involved, the 
AAO cannot distinguish this vague responsibility from routine sales tasks. It is not clear what is the 
purpose of the business talks and what the beneficiary achieves from the meetings. These duties have not 
been shown to be managerial or executive in nature. 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 Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). The lack of managers or subordinate employees for the beneficiary to direct in 
the negotiating tasks for the U.S. company, and the job description indicating that the beneficiary is 
directly in charge of negotiating and meeting with clients, raises questions as to whether the beneficiary is 
managing these activities or actually performing duties related to sales and client relations. 
The petitioner further states that the beneficiary will spend 45 percent of her time in sales operations such 
as developing and implementing sales strategies and sales campaigns; research the market; review sales 
reports to adjust sales programs in connection with market needs, volume potential, price schedules and 
discount rates; and direct the training of staff of the sales program. The record does not resolve whether 
the beneficiary will perform the day-to-day tasks to develop and implement the sales and marketing 
programs and policies, or whether she will direct others to do so. According to the evidence submitted by 
the petitioner, it does not appear that the U.S. company has hired any employees to develop and 
implement the sales and marketing program for the company. Since the U.S. company lacks employees 
to handle the sales and marketing functions, and for the beneficiary to direct and coordinate, the record 
raises questions as to whether the beneficiary is managing these activities or actually performing the 
petitioner's sales and marketing duties. Instead, it appears that the beneficiary is performing the tasks 
necessary to produce a product or to provide services rather then managing others to produce the product 
or provide a service. An employee who "primarily" performs the tasks necessary to produce a product or 
provide a service is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); see also Matter of Church Scientology International, 19 I & N Dec. 593, 
604 (Comm. 1988). 
WAC 05 146 50844 
Page 9 
According to the first U.S. organizational chart submitted by the petitioner, the chart indicates that the 
U.S. company hired commissioned salespersons and assistants. However, in the second U.S. 
organizational chart submitted by the petitioner in response to the director's request for evidence, the chart 
does not indicate the commissioned salespersons or assistants. 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, 59 1-92 (BIA 1988). Furthermore, even 
if the petitioner utilizes contractual employees in the areas of sales and marketing, the petitioner has 
neither presented evidence to document the existence of these employees nor identified the services these 
individuals provide. Additionally, the petitioner has not explained how the services of the contracted 
employees obviate the need for the beneficiary to primarily conduct the petitioner's business. Without 
documentary evidence to support its statements, the petitioner does not meet its burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998). 
According to the petitioner, in addition to the beneficiary, the company has four additional employees at 
the time the petition was filed. As vice president of the U.S. company, it appears the beneficiary will 
supervise one manager in the administrative department, one manager and one assistant manager in the 
warehouse department and one manager in the finance department. The beneficiary will also function as the 
business department manager and will supervise an assistant. The same individual is employed in the 
positions of administrative department manager and finance department manager. The petitioner also 
submitted job descriptions for the four employees supervised by the beneficiary. As noted above, the job 
titles stated in the petitioner's letter dated May 30, 2005 are slightly different from the job titles stated in the 
U.S. organizational chart. The job title of assistant warehouse manager on the U.S. organizational chart is 
stated as warehouse manager in the petitioner's support letter. However, AAO reviewed the job description 
for this employee, and the job description states that thls individual will assist the warehouse manager, thus it 
appears that the position is in fact an assistant position. In addition, the U.S. organizational chart indicates 
one employee as an assistant for the business department, however, the petitioner states the job title as sales 
and business person. 
In the denial decision, the director noted the discrepancies in certain position in the U.S. company as 
mentioned above. The director stated "one employee,, identified as an Assistant to the 
Warehouse Manager in the first organizational chart, becomes a Warehouse Manager in the second chart. 
Another one, identified as Assistant to the Manager of the Business Department, becomes a Sales and 
Businessperson in the second one." On appeal, the petitioner re-submits two organizational charts for the 
U.S. entity filed with the petition and indicated that the job titles were consistent in both charts. The AAO 
reviewed the record and it appears that the discrepancies noted by the director were not listed on the 
organizational chart as the director asserted, but instead the discrepancies in the job titles were found in the 
petitioner's letter dated May 30, 2005, in response to the director's request for additional evidence. 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). 
As noted above, in the request for evidence, the director requested that the petitioner submit a specific 
day-to-day description of the duties the beneficiary has performed over the last six months. The 
WAC 05 146 50844 
Page 10 
petitioner failed to submit this document in its response. 
 Instead, the petitioner provided a vague 
description that mirrored the previously submitted description of the beneficiary's proposed duties. 
Further, the submitted job description contains several references to the petitioner's "Marketing 
Department," which does not appear on any of the submitted organizational charts. This evidence is 
critical as it would have established if the beneficiary held a position of managerial or executive capacity 
by the U.S. company. The purpose of the request for evidence is to elicit further information that clarifies 
whether eligibility for the benefit sought has been established. 8 C.F.R. 9 103.2(b)(8). The failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 9 103.2(b)(14). The petitioner's response to the director's request for evidence did not 
assist in establishing if the beneficiary was employed by the U.S. entity in a managerial or executive 
capacity. 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 (Cornm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In addition, although the petitioner asserts that the beneficiary is managing a subordinate staff, the record 
does not establish that the subordinate staff is composed of supervisory, professional, or managerial 
employees. See section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will not be considered to be 
acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees 
supervised are professional. Section 101(a)(44)(A)(iv) of the Act. The petitioner submitted an 
organizational chart indicating that the beneficiary will supervise one manager in the administrative 
department, one manager and one assistant manager in the warehouse department, one manager in the finance 
department and one assistant in the business department. The petitioner has not submitted evidence that the 
beneficiary's subordinates are supervisory, professional or managerial employees. It appears that these 
subordinates will be in charge of clerical, administrative, warehouse and basic finance functions. In the 
instant case, the petitioner has not, in fact, established that a bachelor's degree is actually necessary to 
perform the import and export and sales functions of the subordinates supervised by the beneficiary. 
Rather, based on the type of business operated by the petitioner and its staffing levels, the department 
"managers" would necessarily be involved in the routine tasks associated with operating a business, 
which can not be considered professional in nature. 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 is sufficiently complex to support an executive or manager position. An 
individual whose primary duties are those of a first-line supervisor will not be considered to be acting in a 
managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
professional. Section 10 1 (a)(44)(A)(iv) of the Act. Thus, the petitioner does not establish that the 
subordinate staff is composed of supervisory, professional or managerial employees. 
Furthermore, if the position offered to the beneficiary is executive in capacity, the statutory definition of 
the term "executive capacity" focuses on a person's elevated position within a complex organizational 
hierarchy, including major components or functions of the organization, and that person's authority to 
direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1101(a)(44)(B). Under the statute, a 
beneficiary must have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of managerial 
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-operations of the enterprise. An individual will not be 
WAC 05 146 50844 
Page 11 
deemed an executive under the statute simply because they have an executive title or because they 
"direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise 
"wide latitude in discretionary decision making" and receive only "general supervision or direction from 
higher level executives, the board of directors, or stockholders of the organization." Id. According to the 
organizational chart for the United States entity, it appears that the president will supervise the 
beneficiary. Although the petitioner has been identified as acting president of the company, the AAO 
notes that the petitioner's administrative and finance department manager has signed tax returns, leases 
and other documents as the company's chief executive officer. This employee, who is also a 25% 
shareholder of the U.S. company, also received a higher salary than the beneficiary. Collectively, the 
evidence in the record raises doubts regarding the petitioner's claim that the beneficiary operates at a 
senior level within the company's organizational hierarchy. Doubt cast on any aspect of the petitioner's 
proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). It is unclear if 
the beneficiary will have wide latitude in discretionary decision-making, nor has the petitioner indicated 
that the beneficiary will establish the goals and policies of the organization. Thus, the petitioner has not 
established that the position is in an executive capacity. 
As discussed above, the beneficiary's job description included primarily non-qualifying duties associated 
with the petitioner's day-to-day functions, and the petitioner has not identified sufficient employees within 
the petitioner's organization, subordinate to the beneficiary, who would relieve the beneficiary from 
performing routine duties inherent to operating the business, particularly with respect to sales and 
marketing activities. The fact that the beneficiary has been given a managerial job title and general 
oversight authority over the business or a department is insufficient to elevate her position to that of an 
executive or manager as contemplated by the governing statute and regulations. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 9 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, 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. 9 214.2(1)(14)(ii)(D). The 
regulation at 8 C.F.R. 5 214.2(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 ineligible by regulation for an extension. In the instant matter, the petitioner has 
not reached the point that it can employ the beneficiary in a predominantly managerial or executive 
position. 
At the time of filing, the petitioner was only operational for one month and realized a gross sales of $500, 
000. The firm employed the beneficiary as vice president~business manager, plus one employee who 
filled the positions of administrative department manager and finance department manager, one 
warehouse department manager, one assistant warehouse department manager and one assistant for the 
business department. The AAO notes that most of the employees have managerial or executive titles. 
The petitioner did not submit evidence that it employed any subordinate staff members who would 
WAC 05 146 50844 
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perform the actual day-to-day, non-managerial operations of the company. Based on the petitioner's 
representations, it does not appear that the reasonable needs of the petitioning company might plausibly 
be met by the services of the beneficiary as president and three managerial employees. 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 AAO recognizes the petitioner's claim that the beneficiary had significantly less than one year to 
establish the business, due to a delay in the issuance of her visa at the U.S. Consulate in Guangzhou. The 
petitioner did not, however, provide documentation to establish the stated length of the delay and the 
reasons therefore. In addition, the petitioner did not explain why the beneficiary entered the United States 
on February 11, 2005 when she obtained her visa on November 11, 2004. 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 Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Regardless, any request for an extension of a petition 
that was originally approved as a new office must be evaluated under the criteria set forth at 8 C.F.R. tj 
214.2(1)(14)(ii) and establish the beneficiary's eligibility as of the date of filing. Again, the regulation at 8 
C.F.R. tj 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. 
Based upon evidence submitted, it appears that the beneficiary has been and will be performing the 
services of the U.S. entity rather than performing primarily managerial or executive duties as its vice 
president. The petitioner has not demonstrated that the beneficiary will be functioning at a senior level 
within an organizational hierarchy other than in position title. Accordingly, the petitioner has failed to 
demonstrate that the beneficiary has been or will be employed primarily in a qualifying managerial or 
executive capacity. For this reason, the appeal will be dismissed. 
The petition will be denied 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. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.