dismissed L-1A Case: Clothing

identifyingdata deletedto
preventclearly unwarranted
invasionofpersonalprivacy
pUBLICCO,"
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: WAC 06 020 50002 &DR () ~ ".Office: CALIFORNIA SERVICE CENTER Date: I'W
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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.
~~~ef
Administrative Appeals Office
www.uscis.gov
WAC 06 020 50002
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 AAO will dismiss the
appeal.
The petitioner filed this nonimmigrant petluon seeking to extend the employment of its business
development/marketing manager as an L-lA nonimmigrant intracompany transferee pursuant to section
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1l01(a)(15)(L). The petitioner,
a California corporation, states that it is engaged in the import and distribution of clothing. It claims to be a
subsidiary of King Rhino Clothing S.A. de C.V., located in Mexico. The beneficiary was initially granted
one year in L-lA classification in order to open a new office in the United States and the petitioner now
seeks to extend his status for three additional years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a 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 evidence
of record establishes that the beneficiary will primarily manage professional employees, as well as an
essential function of the petitioning organization. Counsel contends that the director erred by failing to
consider whether the beneficiary qualifies for the benefit sought as a "function manager." Counsel submits a
brief and documentary evidence in support of the appeal.
To establish eligibility for the L-l 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 lmowledge 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 lmowledgecapacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will etp.ploy
the alien are qualifying organizations as defined in paragraph (1)(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.
WAC 06 020 50002
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.
The regulation at 8 C.F.R. § 214.2(l)(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 (1)(1)(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 ofthe United States operation.
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be
employed by the United States entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(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;
WAC 06 020 50002
Page 4
(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 supervis~r's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the
board of directors, or stockholders of the organization.
The nonimmigrant petition was filed on October 24, 2005. On the Form 1-129, the petitioner stated that the
U.S. company has three employees, and attached the following description of the beneficiary's duties as
business development/marketing manager:
Manage staff, prepared work schedule, determine staffing requirements, interview, hire and
fire. Review financial statements, direct and coordinate financial and budget activities to fund
operations, and maximize investments. [The beneficiary] will continue to set goals and
policies to expand the business and increase sales.
In an attached letter, dated September 19, 2005, the petitioner further described the beneficiary's duties as
follows:
[The beneficiary] has been responsible for developing the business in the United States. He
has been in charge of a major function of the business during its inception and responsible for
establishing a brand name in the United States. [The beneficiary) has hired qualified
employees to assist in them [sic] marketing efforts of the business. He has the authority to
hire and fire employees as seen fit[.]
WAC 06 020 50002
Page 5
[The beneficiary] researches and analyzes market conditions and thereby decide [sic] the best
marketing strategy and channel of distribution. Furthermore, by analyzing current marketing
trends and by gathering information on its competitors, the beneficiary is able to determine
pricing, sales methods, customer preferences and customers buying habits.
The petitioner submitted a copy of its most recent California Form DE-6, Quarterly Wage and Withholding
Report, which confirmed the employment of the beneficiary and two other employees as of the second
quarter of 2005.
The director issued a request for additional evidence on January 20, 2006, instructing the petitioner to
submit additional evidence that the beneficiary will be employed in a managerial or executive capacity,
including: (I) an organizational chart clearly depicting the beneficiary's position and all employees under his
supervision by name, job title, job duties, and educational level; and (2) a more detailed description of the
beneficiary's duties, including the percentage of time spent in each of the listed duties.
In a response dated March 30, 2006, the petitioner included the following statement regarding the
beneficiary's job duties:
As a Marketing Director, [the beneficiary] is in charge of managing the U.S. Subsidiary's
staff, which consists 0 the Company's Market Development Officer, and ~
_ Sale Associate. [The beneficiary] is responsible for preparing the work schedules
~ining the staffing requirements making him responsible for hiring and firing. He
spends 34% of his time overseeing the employees and making sure they are each doing their
main functions....
[The beneficiary] also spends approximately 25% of the time on the phone, negotiating, and
tracking merchandise. He makes arrangements regarding the shipping, requests for expedites
and speaks to customers. There is also approximately 20% of time spent marketing products
with potential new buyers. The 21% of his left time, the beneficiary is in charge of reviewing
financial documents, directing and coordinating the Company's financial and budget activities
to fund operations. He also implements the departments policies, goals, procedures and
objectives to increase the sales.
100% of [the petitioner's] products are clothes that are imported directly from the Parent
company in Mexico. It is important that the manager speaks both fluently in English and
Spanish to make the transactions and order the correct merchandise.... His knowledge and
fluency of the languages, do not only save the company money by avoiding mal-transactions
but it also helps gain customers by providing efficient orders.
Above all, [the beneficiary] holds monthly meetings with the Market Development Officer to
review and discuss the process and objectives of the company. He is working on procedures
to increase the sales and make [the petitioner] as successful or much more than its Parents
[sic] company.
WAC 06 020 50002
Page 6
In an attached organizational chart, the petitioner provided the following job descriptions for the
beneficiary's subordinates:
Market Development Officer (PHD in Economy)
• Develop pricing strategies, balance firm objectives and customer satisfaction
• Identify, develop and evaluate marketing strate~, based on knowledge of establishment
objectives
• Compile lists describing product or service offerings
• Use sales forecasting and strategic planning to ensure the sale and profitability of
products
Sales Associate (High School Graduate)
• Maintains knowledge of current sales and promotions, policies regarding payment and
exchanges, and security practices.
• Ticket, arrange and display merchandise to promote sales
• Compute sales prices, total purchases and receive and process cash or credit payment
• Recommend, select and help locate or obtain merchandise based on customer needs and
desires.
The director denied the petition on May 8, 2006, concluding that the petitioner had failed to establish that
the beneficiary would be employed in a primarily managerial or executive capacity. The director observed
that the beneficiary's proposed duties are primarily comprised of marketing tasks that do not fall under the
statutory definitions of managerial capacity, and noted that several of the beneficiary's duties were stated in
vague and general terms that failed to identify the specific managerial task to be performed. The director
concluded that the record did not demonstrate that the beneficiary would primarily supervise a subordinate
staff of professional, managerial, or supervisory personnel who would relieve him from performing non­
qualifying duties; that the beneficiary would be functioning at a senior level in an organizational hierarchy;
or that the beneficiary would primarily manage an essential function of the organization.
On appeal, counsel for the petitioner asserts that the Immigration Act of 1990 (IMMACT 90) "made it very
clear that [CIS] may not discriminate between functional managers and managers who oversee personnel."
Counsel reiterates the position description submitted in response to the director's request for evidence and
asserts that "[o]bviously, the job description provided evidences that [the beneficiary] will be acting as a
'functional' manager, responsible for the marketing of the company." Counsel asserts that both of the
beneficiary's subordinates are professionals who hold degrees related to their positions and states that the
employees "will alleviate Beneficiary in performing non-qualifying or general duties." Counsel further notes
that the petitioner will hire additional employees in the near future, while the beneficiary will continue to be
responsible for "the key duties and functions within the marketing component."
In addition, counsel states:
As a functional manager, [the beneficiary] will develop pricing strategies, balancing firm
objectives and customer satisfaction, identify, develop, and evaluate marketing strategy,
WAC 06 020 50002
Page 7
based on knowledge of establishment objectives, market characteristics, and cost and markup
factors. Moreover, he will evaluate the financial aspects of product development, such as
budgets and expenditures, research and development appropriations, and return-on­
investment and profit-loss projections. Coordinate marketing activities and policies to
promote products and services, working with advertising and promotion managers. [The
beneficiary] will direct the hiring, training, and performance evaluations of marketing and.
sales staff and oversee their daily activities. Negotiate contracts with vendors and distributors
to manage product distribution, establishing distribution networks and developing distribution
strategies.
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.5 (5th Cir. 1989), Mars Jewelers,
Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), and several unpublished decisions to stand for the
proposition that the statute was not intended to limit managers or executives to persons who supervise a
large number of persons.
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the
beneficiary's duties for the petitioner will be primarily managerial or executive. When examining the
executive or managerial capacity ofthe beneficiary, the AAO will look first to the petitioner's description of
the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job duties must clearly
describe the duties to be performed by the beneficiary and indicate whether such duties are either in an
executive or managerial capacity. Id.
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the
petitioner must show that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the
requisite authority, but that a majority of his or her duties are related to operational or policy management,
not to the performance of the duties of another type of non-managerial or non-executive position, or other
involvement in the operational activities of the company.
As noted by the director, the petitioner's description of the beneficiary's duties did not demonstrate that the
beneficiary will primarily perform the types of high-level responsibilities that are specified in the statutory
definitions of managerial or executive capacity. For example, the petitioner indicated that the beneficiary
spends 25 percent of his time "on the phone, negotiating, and tracking merchandise," making shipping
arrangements and speaking to customers. The' petitioner further emphasized the importance of the
beneficiary's bi-lingual skills to ensure accurate and efficient order transactions. Based on the petitioner's
representations, the beneficiary is directly responsible for accepting sales orders and making shipping
arrangements for the company, rather than delegating these operational tasks to his subordinate personnel.
The petitioner further indicated that the beneficiary devotes an additional 20 percent of his time to
"marketing products with potential new buyers." Again, the petitioner did not indicate that the beneficiary
supervises or delegates these non-qualifying duties. Accordingly, these two responsibilities, which account
for 45% of the beneficiary's time, have not been demonstrated to be managerial or executive in nature.
WAC 06 020 50002
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The petitioner stated that the beneficiary devotes an additional 21% of his time to "reviewing financial
documents, directing and coordinating the Company's financial and budget activities to fund operations."
However, the petitioner has not identified any subordinate employees who would perform the routine day­
to-day bookkeeping, banking and fmancial functions of the company, or prepare financial documents for the
beneficiary's review. Therefore, it cannot be concluded that the beneficiary's responsibilities with respect to
the petitioner's financial activities would be primarily managerial.
Overall, the position description submitted in response to the director's request for evidence suggests that
more than half of the beneficiary's time would be allocated to non-qualifying marketing, logistics and
financial-related tasks, rather than to managerial- or executive-level duties. An employee who "primarily"
performs the tasks necessary to produce a product or to provide services or other non-qualifying duties 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 ofChurch Scientology Intn '1., 19 I&N Dec. 593, 604 (Comm. 1988).
On appeal, counsel reiterates the job description submitted in response to the director's request for evidence,
noting that these duties account for 100 percent of the beneficiary's time, yet counsel goes on to attribute
additional duties to the beneficiary, including two responsibilities that were previously claimed to be
performed by the petitioner's "market development officer." 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Furthermore, where, as here, a
petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to
respond to that deficiency, the AAO will not accept evidence, such as new job duties, offered for the first
time on appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofObaigbena, 19 I&N
Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have
submitted the documents in response to the director's request for evidence. Id. On appeal, a petitioner
cannot offer a new position to the beneficiary, or materially change a position's title, its level of authority
within the organizational hierarchy, or the associated job responsibilities. The petitioner must establish that
the position offered to the beneficiary when the petition was filed merits classification as a managerial or
executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). Under the
circumstances, the AAO need not and will not consider the job description submitted on appeal.
On appeal, counsel asserts that the beneficiary is a "function manager," who supervises professional
employees. 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 V.S.c. § 1101(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(l)(I)(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. § 2l4.2(l)(1)(ii)(B)(3).
WAC 06 020 50002
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Here, the petitioner claims that both of the beneficiary's subordinates, a market development officer and a
sales associate, are employed in a professional capacity. 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 101(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 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 ofShin, 11 I&N
Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree
held by a 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. Although the petitioner has provided brief job descriptions for the beneficiary's subordinates,
the AAO cannot determine based on the limited information provided that a bachelor's degree is required to
perform the duties of a sales associate or market development officer. The AAO particularly questions the
accuracy of the job description provided for the sales associate, which suggests that he performs duties in a
retail sales setting, although the petitioner does not in fact operate a retail business. 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 ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
Furthermore, the petitioner initially indicated that the market development officer possesses a doctorate
degree, while the sales associate is a high school graduate. On appeal, counsel asserts that both employees
possess bachelor's degrees in a specialization related to their job duties. Again, 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. Id. at 591-92. Without documentary evidence to support the
claim, the assertions of counsel will not satisfy 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. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). In
the instant case, the petitioner has not established that a bachelor's degree is actually necessary, for example,
to perform the claimed duties ofthe sales associate or market development officer.
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. § 1101(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 that clearly describes the duties
to be performed in managing the essential function, i.e. 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. § 214.2(l)(3)(ii). In addition, the petitioner's description of
WAC 06 020 50002
Page 10
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 services is not considered to be "primarily" employed in a managerial or
executive capacity. Boyang, Ltd. v. INS., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing
Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Corom. 1988». In this matter, the
petitioner has not provided evidence that the beneficiary manages an essential function.
While performing non-qualifying tasks necessary to produce a product or service will not automatically
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive
duties. Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" manager turns
in part on whether the petitioner has sustained its burden of proving that his duties are "primarily"
manageria1. As discussed above, based on the petitioner's representations, it is evident that the beneficiary
devotes the majority of his time to performing non-managerial duties related to the petitioner's marketing,
shipping and finance functions, rather than performing primarily managerial duties.
With regard to the petitioner's employees, counsel suggests that the director denied the petition, in part,
because the beneficiary supervises only two employees. As required by section 101(a)(44)(C) of the Act, 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 staffmg levels of the petitioner. See 8 C.F.R. §
214.2(l)(l4)(ii)(D). The regulation at 8 C.F.R. § 214.2(l)(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.
There is no indication in this matter that the reasonable needs of the organization were not properly
considered by the director. On the contrary, it appears the reasonable needs were considered, and the
director concluded that the petitioner was incapable based on its overall purpose and stage of development to
support a primarily managerial or executive position as defined by sections 101(a)(44)(A) and (B) of the
Act. Further, the director did not deny the petition based solely on the number of employees supervised by
the beneficiary. The director reviewed the job descriptions submitted by the petitioner, which included a
number of non-managerial duties, and also observed that the petitioner did not employ other employees to
perform many of the day-to-day non-managerial tasks inherent to operating the petitioner's business. The
reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily"
employed in a managerial or executive capacity as required by the statute. See sections 101(a)(44)(A) and
(B) of the Act, 8 U.S.C. § 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who
allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent, but those needs
will not excuse a beneficiary who spends the majority of his or her time on non-qualifying duties.
WAC 06 020 50002
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Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.2 (5th Cir. 1989), and Mars
Jewelers, Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small
size of a petitioner will not, by itself, undermiile a finding that a beneficiary will act in a primarily
managerial or executive capacity. Counsel has furnished no evidence to establish that the facts of the instant
petition are analogous to those in National Hand Tool Corp. v. Pasquarell or Mars Jewelers, Inc. v. INS. It
is noted that both of the cases cited by counsel relate to immigrant visa petitions, and not the extension of a
"new office" nonimmigrant visa. As the new office extension regulations call for a review of the petitioner's
business activities and staffing after one year, the cases cited by counsel are distinguishable based on the
applicable regulations. See 8 C.F.R. § 214.2(l)(l4)(ii). Additionally, in contrast to the broad precedential
authority of the case law of a United States circuit court, the AAO is not bound to follow the published
decision of a United States district court in matters arising within the same district. See Matter ofK-S-, 20
I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge's decision will be given due
. consideration when it is properly before the AAO, the analysis does not have to be followed as a matter of
law. Id. at 719. As counsel has not discussed the facts of any of the cited matters, they will not be
considered in this proceeding.
Counsel further refers to several unpublished decisions in which the AAO determined that the beneficiary
met the requirements of serving in a managerial capacity, specifically as a function manager, even though he
or she supervised few or no employees. Counsel has furnished insufficient evidence to establish that the
facts of the instant petition are analogous to those in the unpublished matters. Again, going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. Furthermore, while 8 C.F.R. § 103.3(c) provides
that AAO precedent decisions are binding on all CIS employees in the administration of the Act,
unpublished decisions are not similarly binding.
On appeal, counsel indicates that the petitioner intends to hire additional employees in the near future.
However, 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
The AAO does not dispute that small companies require leaders or individuals who plan, formulate, direct,
manage, oversee and coordinate activities; however the petitioner must establish with specificity that the
beneficiary's duties comprise primarily managerial or executive responsibilities and not routine operational
or administrative tasks. The fact that the beneficiary manages a business, regardless of its size, does not
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive
capacity within the meaning of sections 101(a)(l5)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26,
1987). Here, the record fails to establish that the majority of the beneficiary's duties will be primarily
directing the management of the organization or a component or function of the organization. Accordingly
the appeal will be dismissed.
ill 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.
WAC 06 020 50002
Page 12
ORDER: The appeal is dismissed.