dismissed L-1A Case: Consulting And Import

"., .Identifyingdatadeleted~
preventclearly,unwarranted
invasionofpetsoB8lprivaoy
,rUBLIC COpy'
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services '
File:
IN~:
SRC 05 262 51022
Petitioner:
, Beneficiary:
Office: TEXAS SERVICE CENTER Date:. t'l1\'1 0t 1,'1
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S~C. § 1101(a)(15)(L)' .
ON BEHALF OF PETITIONER:
INSTRUCTIONS:.
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to,
the o,fficethat originally decided your c~se. Any further inquiry mlist be made to that office.
~~:~f,
Administrative Appeals Office,
www.uscis.gov
SRC 05 262 51022
Page 2
DISCUSSION: The DIrector, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Offic~ (AAO) on appeal. The MO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its executive director as
an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.c. § 1101(a)(l5)(L). The petitioner is a corporation organized in the State of
Florida that claims to be engaged in consulting, investment, and import of Venezuelan products and services.
The petitioner states that it is an affiliate of c.A., 'located in Venezuela. The beneficiary
was initially granted a one-year period of stay in the United States in order to open a new office, and the
petitioner now seeks to employ the beneficiary for three additional years.
The director deriied the petition concluding thatthe petitioner did not establish that the beneficiary would be
employed in the United States ina primarily manage~alor 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, the petitioner's representative asserts that the,
director's decision was based on'an incorrect application of law, and did not properly consider the evidence '
submitted by the petitioner. The petitioner's representative further alleges that the director placed undue
emphasis on' the small size of the petitioner's staff and failed to fully consider the petitioner's descriptions of
the beneficiary's job duties.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same e'mployer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 c.P.R. § 214.2(1)(3) states that an individual petition filed on Fonn 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) ofthis section.
\
(ii) Evidencethat 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 yea;rs preceding the filing of
thepetition~
SRC 05 262 51022
Page 3
(iv) Evidence that the alien's prior year of employment abroad was ina position that was
managerial, executive or involved specialized kllowledge and that the alien's prior
education, 'training,and employment qualifies,him/her 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 provjdes 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) ~vidence that the United States entity has been doing business as defined m
paragraph (l)(l)(ii)(H) ofthis 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 des~ribing 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.
• 1 " '
The sole issue addressed by the director is whether the petitioner established that the beneficiary would be
employed by the United States entity in a primarily managerial or executive capacity.
Section 101(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:
(i) manages the organization, or a department, s.ubdivision, function, or component of
-. the drganization; -
(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 si.lpervis~d, 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 \
..
SRC 05 262 51022
Page 4
. (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 ina managerial capacity merely by virtue of th~ supervisor's supervisory
, duti~s unless the employees supervised are professionaL·
Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1l01(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
, (i)
(ii)
(iii)
(iv)
~irects the management of the organization or a major component or function of the
organization;
. .
establishes the goals and policies of the organization, component, or function;
.' . .
exercises wide latitude in discretionary decision making; and
receives onlygene,ral supervision or direction from higher level executives, the board
of directors, or stockholders ofthe organization.
. . .
The nonimmigrant petition was filed on September 28, 2005. The petitioner 'stated on Form 1-129 that the
beneficiary would continue to serve as president of the, three-person office, and described his proposed duties
as the following:.
Design and implemeritshort and long term" strategies for the organization. Complete
management ~nd financial responsibilities,power to hire and terminate employment, serve as
legal advisor and business consultants [sic] to our [V]enezuelan clients. Responsible for
running day'today ()perations duringthe first three years of the company.
~he petitioner submitted a copy of its Florida Form UCT-6, Employer's Quarterly Report, for the second
quarter of 2005, which confirmed the employment of the beneficiary and two part-time employ~es who each
earned a monthly salary of $500.
On October 24, 2005, the\directorissued a request for additional eVidence to establish that the beneficiary
would be employed in a primarily managerial or executive capacity. Specifically, the director instructed the
petitioner to submit a definitive statement describing the beneficiary'sU$. employment, including his
position title, alist of all duties, the percentage of time spent on each duty, and the number of subordinate
managers/supervisors or other employees who report directly to the beneficiary,along with,a brief description
of their job titles, educational background and duties. The director also asked the petitioner to indicate
whether the beneficiary functions at a senior level within the corporation, and to specify who provides the, .
product sales/servi~es or produces the product of the business. In addition, the director request~d a copy of
the petitioner's organizational chart and payroll records for the period October 1, 2004 through October 1,;
2005. ' '
SRC 05262 51022
Page 5
In. a response dated January 8, 2006, the petitioner stated that the beneficiary serves as the beneficiary's vice­
president and noted that the position is equivalent to a chief executive ?fficer, at the top of the company's
hierarchy. The petitioner provi~ed the following description of the beneficiary's duties:
• Responsible for· delivering leadership. and support of his team on .issues such as
management and direction of the daily activities and investments of the business with an
emphasis on implementing the operating policies, making sure that the organiZational
leadership and its strategic plan meet and exceed the corporation's goals. 12 hours/week
-30%
• Over~ee and .direct all personnel matters such as the 'selection, placement and
supervision ·of all departmental staff with emphasis in retaining a top level management
team capable of meeting and exceeding goals for new sales and. renewal revenue for
successful client's consulting projects~ Authority to hire, fire all levels of personnel. 8
" , . . .
hours/week - 20%
• Work intan<iem with the senior management team in their areas of expertise
·en~ompassing all aspects of client service, and new business development, hence,
promoting the company's growth sales·'force, including expansion into new geographic
markets, to achieve or exceed budget. 8 hours/week - 20% .
• Eilsure that [the petitioner] keeps being a growing, profitable, client focused firm on the
forefront of innovation in the global consulting market in the U.S. implementing sales
and marketing strategies and campaigns to generate new business sales and increase
renewal sales. Ultimate responsible [sic] for company's P&L. 8 hours/week - 20%
• Responsible for. the company's overall· operations,business affairs and expansion into
new and targeted areas. Represent the company before all authorities at a local, State or
Federal levelin all Issues pertaining to the business (legal, tax, regulating bodies and
commissions). 4 hours/week-10%
. The petitioner submitted an organizational chart which depicts the beneficiary as vice-president, reporting to
the company president. The chart shows that the beneficiary supervises a finance department manager and an
accounts department manager, who in turn supervises a sales representative; a sales assistant, and
"indepetldent contractors. i, The petitioner indicated that the sales representative and sales assistant were hired
in November 2005, after the instant petition was filed. As noted by the director, staff hired by the petitioner
after-the d~te of filing will not be considered in determining whether the beneficiary will be employed in a
managerial or executive capacity. The petitioner must establish eligibility. at the time of filing the
nonimnligrant visa petition. A visa petition may not be approved· at a future date after the petitioner or;·
beneficiary becomes eligiQleunder a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978)..
The petitione~ provid~d. the following description for th~ positi~n of accounts. department ~anager, who is
also referred to as "accounts department vice president":
In this position Ms. I . will lead all aspects of current client's ne~ds. She
. is responsible to look forward and research the market conditions in the local, regional or
SRC 05 262 51022
Page 6
national areas to determine potential sales of a product or service. She may gather
information on competitors, prices,sales, and methods of marketing and distribution. Further,
she may use survey results 10 [sic] create a marketing campaign bases [sic] on regional
· preferences and buying habIts. Developing and prioritizing opportunities· for new business
within strategic or project parameters; oversight of client's consulting activities across all
internal departments; and managing deadlines; budget f~recasting; cost estimating; generating
billing reports, and approving monthly billing. She is also responsible for overseeing the
correct data entering of purchase orders into the system, and making sure that all clerical '
duties are .correctl erformed b her team to keep appropriate records of all of the client's
business with
Thepetitioner provided the following description for its finance department. manager, who is also
referre4 to as "finance and administration vice president":
In this position Mrs._ is responsible for the supefVlSlOn and coordination of
· activities for management support. Performs. a general management function that may
include: Account Receivables; Account Payables; supervise daily program planrting and
evaluation; determine goals, objectives and resource allocation and requirements for
activities; select, train, and evaluate professional and administrative support personnel;
provide planning and management analysis services. Be the liaison with· Pestano &
·Associates PA. .
The petitioner's payroll records and quarterly wage reports confirmed that both employees continued to be
employed on a part-time basis at a ~alary of $500 per month at the time the petition was filed. In response to
the director's request as to who provides the company's product sales/seryices or produces the product of the
business, the petitioner explained as follows:
Depending on the client's consulting needs, one or more departments within [the petitioner]
may need to join together to create, design and deliver the type ofservices that the customer
reqUIres.
Usually the .Account pepartment Manager meets with the client to determine its needs and
expectations, and provides the Vice-President with a brief as to the ·required services. Later
the Vic~~President and the Account Manager design the project and meet with the client to set
llP the timeline.
The director denied the petition on April 13, 2006, 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 found the petitioner's description of the beneficiary's duties to be insufficient to establish
that the beneficiary would be employed in an executive capacity, noting· that the description was "not
supported by documentary evidence, and does not provide sufficient information regarding the direction of
the management of the petitioner." The director concluded that, notwithstanding the job titles of the
beneficiary's subordinates, the petitioner had not"established that the two part-time employees supervised by
SRC 05 262 51022
Page 7
the. beneficiary are employed in managerial, professional or supervisory positions. The director determined
that given the current structure of the company, the beneficiaIY,would perform the day-to-day services of the
organization, rather than perform primarily managerial or executive duties.
On appeal, the petitioner's representative asserts that the director'~ decision "was based on an incorrect
application of the law by not properly considering the evidence submitted by: the Petitioner." The petitioner's
representative asserts that the beneficiary is employed in aprimarily managerial or executive capacity as his
duties "are in agreement with the job description of an Executive, and he is not involved in the day-to-day
operations of the business." Specifically, the petitioner's representative states that the beneficiary "is
responsible for the entire operation of the company," "has the authority and has establishedgoals and policies,
,for the company," "exercises wide latitude in discretionary decision-making, and only reports to the President
of the company."
The petitioner's representative further emphasizes the beneficiary~s authority; noting that he made the decision
to "slow down the operations and take a 'cautious wait and see approach' resulting in slower growth than
previously forecasted for the U.S. company." The petitioner'srepresenta,tive asserts that both of the
,beneficiary's subordinates, while employed on a part-time basis, are professionals who work with minimal
supervision from the beneficiary. In addition, the representative asserts thatthe company's continued growth
and success is established by evidence' that the company hired additional employees soon after the petition
was filed, and by the company's increased rev~nues,a:s indicated on the 2005 corporate tax return.
In support of the appeal, the petitioner submits, in part: copies of resumes and educational credentials for the
company's accounts department manager and finance department manager; letters from five companies, each
of which claims to have a subcontractor relationship with the petitioner "by giving support and technical
adVise to its customers"; and, its 2005 IRS Form 1120, U.S. Corporation Income Tax Return, showing gross
rece.ipts of $90~932. ' ,
Upon. review of the petition and the evidence, and for the reasons discussed herein, the petitioner has not
established that the beneficiary would be employed in a managerial or executive capacity under the extended
petition. ,When examining the executive or managerial' capacity of the beneficiary, the AAO will look first to '
the petitioner's description of the job duties. See 8 C.ER. § 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. [d. In addition, 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 do~s 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,
1991r
The petitioner claims that the beneficiary qualifies as a manager or executive because he occupies the highest­
level position within the company, manag~s its employees, and is responsible for expansion of the business.
However, the fact that an individual has an executive job title and exercises discretion over a company's
,operations' does not necessarily establish eligibility',for classification as an intracompany transferee in. a
SRC 0526251022
Page 8
manageria:lorexecutive capacity within the meaning of section 101(a)(44) of the Act. The actual duties
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108
, (B.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).,
, ,
The record'does not establish that a majority of the beneficiary's time has been or will be primarily directing
the management of the organiiation. The petitioner's initial description' of the beneficiary's duties indicated
that he is personally resporisible for serving as a legal adVisor and business consultant to the petitioner's
clients. Since the petitioner claims to be engaged in the provisiqn of business consulting services to the
restaurant industry, the duties described suggested that the beneficiary performs both managerial duties
, '
associated with overseeing ~he day-to-day operations, yet' also personally provides the services of the
'business. An employe~' 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 «apacity. 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 'I" 19 I&N Dec. 593, 604 (Comm. 1988).
Acc~rdirigly, the director requested that the petitioner clarify the beneficiary's duties by providing a
, comprehensive job description?f his position. However, the petitioner's response did not assist in clarifying
the n~ture of the beneficiary's duties, or clarify how the beneficiary's tIme is allocated among managerial and
non-managerial tasks. For example, the petitioner indicated that the beneficiary devotes the largest percentage
of his time to "delivering leadership and support to his team on issues such as management arid direction of
the daily activities' and investments." However, the petitioner did not clarify what ~pecific "activities" and'
"investments" the beneficiary "leads:' the nature of the "support" he provides, or provide_~n adequate
explanation' of why leadership of his two part-time subordinates, who purportedly work with minimal '
supervision,requires such a large portion o.fhis time. Specifics are clearly an important indication of whether
a beneficiary's duties are primarily ~)(ecutive or managerial in nature,otherwise meeting the definitions would
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y.
1989); affd, 905 F.2d 41 (2d. Cir. 1990).
The petitioner indicated that the beneficiary devotes an additional 20 percent of his time to working "in
tandem" with his senior management team in their areas of expertise encompassing all aspects of client.
service and new business development." However, the petitioner does not specifically define the beneficiary's
role with respect to providing-client services or clearly indicate who on its staff is responsible for delivery of
the company's consulting serv!ces. As noted above, the petitioner initially indicated that the beneficiary ,
himself serves as a consultant and legal advisor to the petitioner's clients, and in response to the request for
. evidence~ ,suggested that the beneficiary merely leads such activities through .the supervision of lower-level
workers. The initial description appeared to have the beneficiary doing more of the actual work, while the
second iteration of the' job has the beneficiary managing more of the actual work done in the petitio~er's
operation. The purpose of the request for evidence js to elicit further information that clarifies whether
eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). When responding to a request
fOr evide~ce, a petitioner canriotoffer a new position to the beneficiary, or materially change a position's title,
its level of authority within ~he organizational hierarchy, or its associated job responsibilities. The petitioner
, must establish that the position offered to the beneficiary when the petition was filed m~rits cl~ssification as a .
, managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978).
SRC 05 262 51022
Page 9
Finally, the petitioner indicated that the beneficiary devotes 20 percent of his time to implement sales and
marketing strategies and .campaigns to generate sales. However, at the time the petition was filed, tbe
petitioner did not employ the sales representative or sales assistant, and the petitioner has not clarified who on
the petitioner's staff was responsibl~ for marketing· the petitioner's services, if not the beneficiary. The
beneficiary's actual duties in the areas of sales and marketing have not been clearly described. Reciting the .
beneficiary's· vague job resporisibilities 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. Again, the actual duties
themselves will reveal the true nature of the employment. FedinBros. Co., Ltd. v. Sava, 724 F. Supp. at i 108.
As noted above, the petitioner's initial description of the beneficiary's duties indicated that. he is personally
responsible for delivering consulting services to the petitioner's clients, and a review of the employment·
background· of the petitioner's three employees confi~s that the beneficiary is the only employee of the
company with a professional background in the restaurant business, the industry targeted by the petitioning
company. When specifically instructed. by the director to explain who provides the petitioner's services, the
petitioner provided a vague response, noting that it "depend[s] on the client's consulting needs" and that "one
or more departments may need to join together to create, design and deUver the type of services that the
customer requires." The petitioner's "departments" consist of two part-time employees; one of whom is
claimed to be responsible only for the petitioner's own financial and ad~inistrative functions, rather than
Client services. The accounts department manager, who works on a part-time basis, is elaimed to perform a
wide variety of duties including market research, data collection and surveying, creation of marketing, budget
forecasting, generating billing reports, approving monthly ·billing, "oversight of client's consulting activities
across all internal departments," and "making sure that ,all clerical duties are correctly performed by her·
team." Again, the petitioner did not specify to what "internal departments" it was referring, nor does the
record establish that the account department manager supervises a "team" to perform clerical duties.
Similarly, the finance manager is described as selecting, training and evaluating professional a~d
administrative support personnel," yet, she is not claimed to supervise any employees. Finally, the AAO notes
that while the petitioner indicates that Carmen Hernandez serves as the petitioner's accounts department
manager, there areseveral doc~ments in the record which are signed by Ms. Hernandez in the c~pacity of
company president. Doubt cast on any aspect of the petitioner's proof may, ~f 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). Overall, the job descriptions submitted do not appear to comport with the·
size. or type of business operated by the petitioner, and it is thus unclear how responsibilities are actually
divided among the petitioner's three employees. .
On appeaJ, the petitioner .claimsfor the first time to utilize the services of independent contractors to perform
.services on behalf of the petitioner's clients. However, the only evidence submitted in support of this claim
are letters from five companies who claim to give "support and technical advice" to the petitioner's customers
as subcontractors. The petitioner has not provided evidence of payments made to these subcontractors, nor
described the nature and scope of the services they provide. 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 D~c. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. '1972)). Furthermore, the AAO notes that two of the companies claiming to be subcontractors
SRC05 262 51022
Page 10
submitted letters in support of the 'initial petition in which they claimed to be customers of the petitioning
company, and eyiderice in the record indicates that the petitioner has invoiced these companies for consulting
services. 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.
at 591-92. Again, 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 offer.ed in support of the visa petition. Id. at 591.
The petitioner has not established that subordinate employees or independent contractors will ~elieve the'
beneficiary from primarily providing the petitioner's services.
Although the beneficiary is not required to. supervise .personnel, if it is claimed that he is employed in a
managerial capacity based on his supervision of personnel, the petitioner must establish that the subordinate
employees are supervisory,professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. The petitioner
claims that its finance department manager and account department manager ~re professionals.
In evalu~ting whether the beneficiary manages professional employees, the AAO must evaluate whether the'
. subordinate positions require a baccalaureate degree asa 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
bt~ limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or.-secondary
schools, colleges, academies, or' seminaries." The te~ .;;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 bacc~laureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec.81? (Comm. 1988); Matter of Li'!g, 13 I&N Dec. 35 (Irc. 1968);
Matter ofShin, 11 I&N Dec. 686 (D~D. 1966).
Therefore, the AAO must focus on the level of educationrequired 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 eniployed 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, f?r example, to perform the bookkeeping and administrative work of the finance
department manager, who' is among the beneficiary's subordinates. Furthermore, although the petitioner has
given both of the beneficiary's subordinates managerial job titles, The petitioner has not shown that either of
these employees' supervise subordinate staff members or manage a clearly defined department or function of
the petitioner, such that they could be classified as managers or supervisors. Thus, the petitioner has not
established that the beneficiary's subordinate employees are' supervisory, professional, .or managerial, as
required by section 101(a)(44)(A)(ii) oqhe Act.
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of
the organization, may not be the determining factor in denying a visa to a multinational manager or executive.
See § 101(a)(44)(C) of the Act, 8 U.S.C. § l101(a)(44)(C). 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 organiz~tional structure and staffing levels of the petitioner. See 8 C.F.R. § 214.2(l)(14)(ii)(D). The
regulation at 8 C.F.R. §. 214.2(i)(3)(v)(C) allows the "new office" operation one year within the date of
· SRC 0526251022
Page 11 .',
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.
At the time of filing, the petitioner was a one-year-old company that claimed to be engaged in providing
consulting services to clients in tl}e restaurant industry. The petiti(jn'erclaimed to employ the beneficiary as its
"executive director" or vice-president, and two part-time managers. While company size cannot be the s~le
· basis for denying a petition, that element can ne-verthelessbe' considered, particularly in light of other such
pertinent factors as the nature of the petitioner's business, which, together, can be used as indicators which
help determine whether a beneficiary can remain focused on managerial or executive duties or whether that
person is needed, in large part to assist in the company's day-to-day operations. The petitioner's description
of the beneficiary's duties cannot be read or considered in the abstract, rather the AAO must determine based
on a totality of the record whether the description ofthe benefici~ry's duties represents a credible.perspective
of the. beneficiary's rolewith(nthe organizational hierarchy. The record does not demonstrate that the
beneficiary has a sufficient 'number of employees in the United States employed full-time who could market,
selland provide consulting services on behalf of the petitioner's clients. At most,. it appears that the
beneficiary's subordinates would relieve the beneficiary from performing administrative and financial tasks.
The petitioner's general description of the beneficiary's duties and the lack -ofsufficient full:·timepersonnel in
·the United States to perform the petitioner's client-based tasks, are insufficient to. establish that the. .
beneficiary will primarily perform managerial or executive tasks.
Furthermore, as discuSsed above, the petitioner initiaiIy inoicated that the beneficiaryhirriself provides.
· services to the petitioner's clients, and he is the only employee with a background in· the restaurant industry
served by the U.S. 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 vice-president
and two part-time mat;lagerialemployees. Regardless, the reasonable needs of the petitioner serve only as a
· factor in evaluating the lack -of staff in the context ofreviewing the daimed 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.
-As noted above, the petitioner submitted evidence that it hired additional personnel subsequent to the filing of
the petition. The·AAO is not required to consider evidence of hiring that occurred subsequentto the filing of
the petition.. The petitioner must establish eligibility at the time of filing thenonimrni~a~tvisa 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~Mat(er ofMichelin Tire Corp., 17 I&N Dec..248 (Reg. Comm. 1978). Further, 8 C.F.R. §
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 positio~. There is noprovislo~ in CIS' regulations that allows
for an extension of this on¢-year period. If the business is not sufficie~~ly operational after one year, the
petitioner is ineligi~le by regulation for an extension. While the beneficiary may have achieved significant _
accomplishments toward establishing the petitioner's operations in the United States, the petitioner has not
SRC 05 262 51022
Page 12
shown that ithas reached the point that he will be employed in a pr{mari1ymanagerial or executive capacity
as of the ,date this petition was filed. For this reason the appeal will be dismissed .
•
In visa petition proceedings,' the burden of proving eligibility for the benefit sought remairis entirely with the
petitioner. Section 291 of the Act, SU.S.c. § 1361: Here, that burden has not been met.
ORDER: The appeal is dismissed.
"