dismissed L-1A Case: Educational Services

U.S. Department of IIomeland Security 
20 Massachusetts Ave., N.W., Rm 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
SERVICE CENTER 
 Date: SE? 0 5 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(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 ease. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
ert P. Wiemann, Chief 
,e 
\ Administrative Appeals Office 
EAC 04 242 53992 
Page 2 
DISCUSSION: The Director, Vermont 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 petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act , 8 
U.S.C. 3 1101(a)(15)(L). The petitioner is a branch office of an 
Australian public limited company authorized to do business in Massachusetts. It provides international 
educational services, including consulting and professional development courses. The petitioner seeks to 
employ the beneficiary as a senior consultant for its "First Steps" product range for a three-year period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
failed to acknowledge that the beneficiary will manage a subdivision of the U.S. entity, an essential function 
of the organization, and a team of professional educational consultants. Counsel further clarifies that the 
beneficiary will be replacing the petitioner's former senior consultant and undertalung her duties, rather than 
performing the same duties concurrently, as assumed by the director. Counsel submits a brief and additional 
evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 8 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
EAC 04 242 53992 
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(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The issue in this matter is whether the beneficiary will be employed by the United States entity in a primarily 
managerial capacity. The petitioner does not claim that the beneficiary will be employed in an 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; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
The nonimmigrant petition was filed on August 25, 2004. In an appended letter dated August 17, 2004, the 
petitioner asserted that the beneficiary would serve in the position of "Senior Consultant - First Steps Product 
Range" with the following responsibilities: 
Directing and coordinating the liaison and negotiation with professionals and clients at 
the school and systems levels regarding the sale of professional development courses and 
curriculum resources. 
Coordinate the design, production and delivery of sales and marketing materials. 
Managing, monitoring and reporting course outcomes. 
Contribute to business and strategic planning as part of the Australian office Senior 
Management Group of the company. 
Participate in the management of the fiscal budget and human resources issues. 
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Coordinate training and mentor new consultants. 
Contribute [to] a collaborative team environment. 
The petitioner submitted an organizational chart for its group which depicts the U.S. office as having two 
contracted managers, a senior consultant for "First Steps Literacy" (FSL), an FSL consultant, an office 
manager, and one per-diem FSL consultant. 
On September 3, 2004, the director requested additional evidence to establish that the beneficiary will be 
employed by the U.S. entity in a managerial or executive capacity, including additional evidence showing the 
management structure and personnel structure of the office. ~'~ecificall~, the director instructed the petitioner 
to answer the following questions: 
1) How many subordinate supervisors are or will be under the beneficiary's management? 
2) What are the job titles and job duties of those employees? 
3) What executive/managerial and technical slulls are required to perform the duties in the 
United States? 
4) How much of the time spent by the beneficiary is or will be allotted to 
executive/managerial duties and how much to other non-executive functions? 
5) What degree of discretionary authority in day-to-day operations does or will the 
beneficiary have in the United States position? 
The director also requested an organizational chart depicting the beneficiary's proposed position in the U.S. 
entity's hierarchy. In a response dated November 14, 2004, counsel for the petitioner provided the following 
information regarding the proposed position in the United States: 
The US Branch, currently operates with six (6) employees and projects; upon [the 
beneficiary's] L-1 US entry, the employment of six additional employees to head, implement 
and manage the professional development and consulting of the "First Steps" products. [The 
beneficiary] will initiate the hiring and screening for the permanent positions of the 
Consulting Team applicants. 
The Consulting Team and International division of Consultants are fully trained professionals 
with specialized knowledge of the company's products. The Consultant's support and method 
of execution of the product, plays a very important role for classroom teachers to be properly 
training in each of the components through based courses. 
[The beneficiary] will be responsible for the managing of the Consulting Team and 
Subdivision of the First Steps project at the US Branch. As a Senior Consultant - First Steps 
Product Range, she will serve under the same conditions as she currently serves in Australia, 
and her managerial duties will be very similar as those with the company in Australia. . . . 
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The petitioner attached an organizational chart for the U.S. branch office which depicts a manager and 
publisher who supervises an office manager and the beneficiary's proposed position. The chart shows that the 
beneficiary would supervise three teams of consultants, including: six regional consultants (two already hired 
and three "to be hired"); three national consultants (one of whom was already hired); and five "per diem 
consultants," including three employees who were already hired. One of the "per diem" consultants was 
previously identified as a manager. Three of the consultants identified on the organizational chart did not 
appear on the chart submitted with the initial filing. The petitioner submitted payroll records confirming the 
employment of a senior consultant, consultant, and office manager as of June 30,2004. 
In addition, the petitioner provided additional information requested regarding the beneficiary's foreign 
position, and noted that the U.S. position would be "very similar." The petitioner submitted detailed job 
descriptions for each position within the foreign office, including the consultant and senior consultant 
positions. The specific duties of the senior consultant are identified as: 
Co-ordinates and directs the negotiation of the location, cost and logistics of professional 
development courses and consultancy 
Facilitates professional development courses and consultancy 
Co-ordinates and directs responses to interest in the purchase of professional development 
courses and curriculum resources 
Co-ordinates and directs phone and e-mail support to agents delivering professional development 
on ECU RL's behalf 
Coordinates, hrects the delivery of, and conducts information sessions regarding the nature of 
professionals development courses and curriculum resources 
Designs, writes or reviews and revises curriculum and professional development materials 
Designs, drafts and reviews sales and marketing materials, including advertisements, brochures, 
newsletters and journal articles 
Attends education conferences to present papers, seminars and workshops promoting the Product 
Range 
Records revenue, expenses and client feedback for each professional development course led 
Attends and contributes to . . .senior management group meetings on a fortnightly basis 
Responds promptly to circulated business planning meetings 
Assists the manager in developing an annual forecast 
Monitors and analyses trends in course and consultancy sales, royalty returns and strategic plan 
KPI data 
Co-ordinates and directs the training of new consultants 
Attends and contributes to team and monthly staff meetings 
Supports and assists other Consultants in course preparation and presentation 
Responds to requests for copyright permission promptly 
Complete administrative duties. . . as directed by the Manager. 
The petitioner noted that the beneficiary's duties with the foreign entity are approximately 85 percent 
managerial and 15 percent technical or marketing-related. The petitioner noted that her managerial duties 
included contributing to the conceptualization, research and development and creation of texts and 
EAC 04 242 53992 
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professional development course material, coordinating and facilitating First Steps professional development, 
managing financial and project planning, and serving on the senior management team, while her technical 
duties included provision of customer service and ongoing support to new and existing customers, and 
training and mentoring consultants. 
The director denied the petition on December 1,2004, concluding that the beneficiary would not be employed 
in a primarily managerial or executive capacity. The director observed that it does not appear that the U.S. 
company employs a staff who would relieve the beneficiary from "performing the non-qualifying duties of the 
daily operation of the company." The director further observed that the petitioner already employs a senior 
consultant and questioned the need for the beneficiary's services in the same position. The director 
acknowledged that the petitioner intends to hire approximately six to seven additional employees in the 
future, but noted that it must be established that the beneficiary would be employed in a managerial or 
executive capacity immediately upon her transfer to the United States, not at a future date. The director found 
that the petitioner's current staffing levels did not warrant the employment of the beneficiary in a managerial 
position. 
The director also determined that the petitioner had failed to establish that the beneficiary would be 
supervising and controlling work of supervisory, professional or managerial employees on a full-time basis 
upon arriving in the United States, or that she would manage an essential function, department or subdivision 
of the organization. 
On appeal, counsel for the petitioner asserts that the director "failed to understand the Petitioner's 
organizational business plans and unique consulting business structure." Counsel notes that while the director 
acknowledged the petitioner's staffing levels, she failed to take into account that the employees are 
"educational consultants" and should be classified as professionals. Counsel contends that the beneficiary 
will manage a subdivision of the U.S. branch, a team of professional educational consultants, and an 
"essential function" of the organization, namely the "First Step consulting team subdivision of the US 
Branch." 
Counsel further contends that the beneficiary would be replacing the individual who was employed as the 
U.S. entity's senior consultant as of the date of filing, rather than serving concurrently in the same position. 
The petitioner submits evidence that this employee, who held an H-1B visa valid until September 30, 2004, 
has returned to Australia to assume a position with the foreign entity. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2(1)(3)(). 
 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. 
Furthermore, 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 
EAC 04 242 53992 
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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 supervision of lower-level employees or the performance of the duties of another type of non- 
managerial or non-executive position. 
The job description submitted with the initial petition was too broad and nonspecific to convey an 
understanding of the beneficiary's proposed daily responsibilities, such that they could be classified as 
primarily managerial in nature. For instance, the petitioner indicated that the beneficiary would be "directing 
and coordinating the liaison and negotiation with professionals" regarding sales of the company's products 
and services, and coordinating "the design, production and delivery of sales and marketing materials." The 
petitioner did not, however, identify what specific tasks the beneficiary will perform to "coordinate" sales 
negotiations, identify who would actually provide the petitioner's sales services, or explain who is responsible 
for the actual design and production of sales and marketing materials. Without additional information, it is 
impossible to conclude that the beneficiary's role in sales and marketing of the petitioner's products is 
primarily managerial in nature. Specifics are clearly an important indication of whether a beneficiary's duties 
involve specialized knowledge, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990). 
Similarly, the initial job description included vague duties such as "managing, monitoring and reporting 
course outcomes," "participat[ing] in" the management of the fiscal budget and human resources issues, 
coordinating training and mentoring new consultants, and contributing to "a collaborative team environment." 
Again, the petitioner failed to specify how the beneficiary would "manage" course outcomes, identify the 
scope of her contribution to human resources and budget issues, or explain how training consultants rises to 
the level of managerial capacity. 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 answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103,1108 (E.D.N.Y. 1989), afld, 905 F.2d 41 (2d. Cir. 1990). 
Upon review of the initial job description, the director instructed the petitioner to answer five specific 
questions regarding the beneficiary's U.S. proposed employment in a managerial or executive capacity, 
including the amount of time the beneficiary would allot to managerial versus non-managerial duties, and the 
job titles and job duties of the beneficiary's proposed subordinates. In response, the petitioner stated that the 
beneficiary would initiate the hiring of six new staff members upon her transfer to the United States and 
would be responsible for "managing . . . the Consulting Team and Subdivision of the First Steps product at 
the US branch." Other than stating that the beneficiary's responsibilities would be "very similar as those with 
the company in Australia," the petitioner did not elaborate upon the beneficiary's duties or otherwise respond 
to the director's specific inquiries regarding the beneficiary's proposed U.S. employment. 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 
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Page 8 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). 
Furthermore, the AAO notes that the initial description of the beneficiary's duties did not specifically indicate 
that she would be responsible for hiring or directly supervising consultants, a responsibility that the petitioner 
and counsel now emphasize as being among her primary responsibilities. In fact, the petitioner identified the 
beneficiary's current role in training and mentoring the foreign entity's consultants as "technical" rather than 
"managerial" in nature. A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 
1998). 
The petitioner's indication that the beneficiary's responsibilities will be "very similar" to her current 
responsibilities with the foreign entity is insufficient to establish that the beneficiary would be employed in a 
primarily managerial or executive capacity with the U.S. entity. The U.S. entity, which appears to have 
commenced business operations in the beginning of 2003, is in an earlier stage of organizational development 
in terms of staffing and would not necessarily require the beneficiary to perform the same proportion of 
managerial versus non-managerial duties. For example, the company-wide organizational chart submitted 
with the petition showed one senior consultant, six consultants, and two "per diem" consultants working for 
the foreign entity, versus one senior consultant, one consultant and one "per diem" consultant working for the 
U.S. entity. 
Further, the detailed job descriptions submitted for the beneficiary's foreign position, and those of the foreign 
entity's other employees, fail to establish that the position of senior consultant is primarily managerial in 
nature. The job descriptions submitted show considerable overlap between the duties of a consultant and 
senior consultant within the petitioner's international organization, suggesting that the latter is more akin to a 
"lead" position, as opposed to a supervisory or managerial position. For example, both positions are 
responsible for: designing, writing, reviewing and revising curriculum and professional development 
materials; recording revenue expenses and client feedback for professional development classes delivered; 
conducting information sessions regarding the company's products and services; "facilitating" professional 
development courses and consultancy; mentoring new consultants; drafting or contributing to the drafting of 
sales and marketing materials; attending conferences to present papers, seminars and workshops promoting 
the organization's products; supporting and assisting other consultants in course preparation and presentation; 
attending and contributing to weekly team meetings and monthly staff meetings and completing 
administrative duties assigned by the manager. None of these duties appear to be managerial or executive in 
nature. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1103,1108 (E.D.N.Y. 1989), afyd, 905 F.2d 41 (2d. Cir. 1990). 
While the senior consultant position is assigned some duties not assigned to other consultants, the record fails 
to establish that these duties would be the beneficiary's primary responsibilities. For example, the senior 
consultant is responsible for attending management meetings twice monthly, participating in business 
planning meetings, assisting in the development of an annual forecast, and analyzing sales trends and key 
performance indicators to provide data used by the manager to make financial and human resources decisions. 
While these duties would be considered managerial in nature, the petitioner has not established that they 
EAC 04 242 53992 
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would require a significant portion of the beneficiary's time. The only other distinction made between the 
consultant and senior consultant position is that the latter "coordinates" negotiations with clients, responses to 
inquiries made by potential clients, and provision of support to "agents" delivering professional development, 
while the consultant is described as directly performing these duties. However, it is not clear how the senior 
consultant "coordinates" these sales and customer service activities or whether these duties would be 
considered supervisory in nature. 
 In addition, the AAO notes that the petitioner conceded that the 
beneficiary's role in "providing customer service and ongoing support to new and existing customers" is 
"technical" rather than managerial in nature. 
Overall, the petitioner has failed to establish any clear distinctions between the proposed qualifying and non- 
qualifying duties of the beneficiary. Based on the foregoing discussion, it appears that the duties of a senior 
consultant, while professional and complex in nature, do not differ significantly from those of a consultant. 
The petitioner's assertion that the beneficiary currently devotes 85 percent of her time to management-level 
duties, and the implied suggestion that her time would be similarly allocated in the proposed U.S. position, is 
not supported by the evidence in the record. The petitioner bears the burden of documenting what portion of 
the beneficiary's duties will be managerial or executive and what proportion will be non-managerial or non- 
executive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the lack of a detailed and 
credible breakdown of how the beneficiary's time would be allocated, the record does not demonstrate that 
the beneficiary will function primarily as a manager. Rather, it appears that the beneficiary would be directly 
performing tasks related to the petitioner's marketing, product and service development, service delivery and 
sales hnctions. 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. See 
sections 10 l(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 Int 'l., 19 I&N Dec. 593,604 (Cornm. 1988). 
Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 9 101(a)(44)(A)(ii) of the Act. Here, the AAO acknowledges that the 
petitioner's consultants are employed in professional positions. However, as discussed above, the evidence of 
record does not establish that the beneficiary will be primarily supervising these employees, as the duties of 
the senior consultant and consultant are barely distinguishable. In addition, the position description for a 
"manager" within the petitioner's organization suggests that this position, rather than the senior consultant, is 
actually responsible for prioritizing the duties of the consultants and senior consultants, and conducting their 
performance reviews, which raises further questions regarding the level of authority the beneficiary would 
exercise over the petitioner's consultants. 
Counsel correctly states on appeal that, pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 3 
1101(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. 
At the time of filing, the petitioner was a one- to two-year old company providing professional development 
and educational consulting services to the primary and secondary school market. The organizational chart 
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submitted with the initial petition stated that the company employed two managers on a contract basis, one 
senior consultant (to be replaced by the beneficiary), one office manager, one consultant, and one "per diem" 
consultant. The petitioner submitted payroll records confirming the employment of the office manager, senior 
consultant and consultant. While the AAO agrees that the petitioner has a reasonable need for the 
beneficiary's services to replace the departing senior consultant, it cannot be concluded that the petitioner 
employs sufficient employees to relieve the beneficiary from performing the day-to-day operational functions 
of the petitioner's service-oriented businesses. Regardless, 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). As discussed 
above, the petitioner has not established this essential element of eligibility. 
Alternatively, counsel asserts that the beneficiary will be employed in a qualifying managerial capacity 
because she "will manage essential functions pertaining to the 'First Step' consulting team subdivision of the 
US Branch." The term "function manager" applies generally when a beneficiary does not supervise or control 
the work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. $ 1 10 1 (a)(44)(A)(ii). The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is 
managing an essential function, the petitioner must furnish a detailed job description that 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. 8 C.F.R. $ 214.2(1)(3)(ii). In addition, 
the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. An employee who primarily performs the 
tasks necessary to produce a product or to provide services is not considered to be employed in a managerial 
or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing 
Matter of Church Scientology International, 19 I&N Dec. 593,604 (Cornrn. 1988)). 
While performing non-qualifymg 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" managerial. 
As discussed above, the petitioner fails to adequately document what proportion of the beneficiary's duties 
would be managerial functions and what proportion would be non-managerial. The petitioner lists the 
beneficiary's duties as managerial, but it fails to quantify the time the beneficiary spends on them. This 
failure of documentation is important because, as discussed above, it appears that a substantial portion of the 
beneficiary's duties are the same duties performed by the consultants she is claimed to supervise. These 
duties, which involve designing marketing and sales materials and participating in course delivery, do not fall 
directly under traditional managerial duties as defined in the statute. Again, absent a clear and credible 
breakdown of the time spent by the beneficiary performing her duties, the AAO cannot determine what 
proportion of her duties would be managerial or executive, nor can it deduce whether the beneficiary is 
primarily performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. 
Supp. 2d 22,24 (D.D.C. 1999). The record does not establish that the beneficiary will primarily manage the 
EAC 04 242 53992 
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"consulting team subdivision," rather than performing the same marketing, sales and services-oriented duties 
performed by the consultants. 
The AAO acknowledges the petitioner's assertion that it intends to expand its operations and hire additional 
consultants to staff its United States operations. However, the petitioner's future staffing levels and business 
activities cannot be taken into account when determining whether the beneficiary will serve in a qualifying 
capacity. The petitioner must establish eligibility at the time of filing the nonirnrnigrant 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 of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.