dismissed L-1A Case: Electronics And Satellite Services

Identi4.iag &a acted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., NW, Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: SRC 06 102 50246 Office: TEXAS SERVICE CENTER Date: JUN 0 3 2008 
IN RE: 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101 (a)(] 5)(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. 
1 
obert P. Wiemann, Chef 
f 
rninistrative Appeals Office 
SRC 06 102 52046 
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DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section I0 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a Georgia limited liability company, states that it is 
engaged in sales, installation and service of electronics and satellite radio and television equipment and 
service. The petitioner claims that it a subsidiary of Card Board Box Manufacturing Company, located in 
Calcutta, India. The beneficiary was granted a one-year period of stay in L-1A 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 initially denied the petition on April 17,2006, concluding that the petitioner did not establish that 
the U.S. entity was doing business for the previous year. On May 1, 2007, the AAO withdrew the director's 
decision and remanded the petition to the director for further action and entry of a new decision. The AAO 
determined that the petitioner had established that it was doing business during the previpus year, but found 
insufficient evidence to establish that the beneficiary would be employed in a primarily managerial or 
executive capacity under the extended petition. The director re-opened the matter and issued a request for 
additional evidence, to which the petitioner submitted a timely response. 
The director denied the petition on December 4,2007, concluding that the petitioner had failed to demonstrate 
that the beneficiary would be employed in a primarily managerial or executive capacity. In denying the 
petition, the director found that the evidence submitted in response to the request for evidence, particularly 
with respect to the petitioner's staffing levels as of the date the petition was filed, was inconsistent with the 
petitioner's previous claims. 
On appeal, counsel for the petitioner asserts that the director erroneously concluded that the beneficiary would 
not be employed in a primarily managerial or executive capacity. Counsel states that the beneficiary will be 
performing executive functions in that he will "direct the management of the company, establish the goals and 
policies of the company, and exercise discretion in making decisions that affect the company." Counsel 
indicated that he would file a brief and additional evidence in support of the appeal within 30 days. The 
appeal was filed on January 2, 2008. The AAO contacted counsel by facsimile on April 21,2008 to determine 
whether he had submitted a brief or evidence, and to allow counsel the opportunity to re-submit any timeIy 
filed documents. Counsel responded on April 23, 2008, and confirmed that he had not filed a brief or 
evidence in support of the appeal as indicated on Form I-290B. Accordingly, the record will be considered 
complete. 
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. 
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The regulation at 8 C.F.R. 5 214.2(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. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The issue in this matter is whether the petitioner established that the beneficiary would be employed by the 
United States entity in a managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
SRC 06 102 52046 
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(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, 
hnctions 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. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 101 (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 hlgher level executives, the board 
of directors, or stockholders of the organization. 
The nonimmigrant petition was filed on February 10, 2006. The petitioner stated on Form 1-129 that it 
employed five workers. In a letter dated January 27, 2006, the petitioner described the beneficiary's duties as 
its president as follows: 
[The beneficiary] has been overseeing all financial, business, marketing and development 
aspects of the U.S. company's operations. . . . 
While in the U.S., [the beneficiary] will continue planning business objectives and 
developing organization policies; reviewing activity reports and financial statements to 
determine progress; directing and coordinating the formulation of financial programs to 
provide funding for new or continuing operations. [the beneficiary] has handled start-up of 
SRC 06 102 52046 
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the new company and continues to direct that operation through marketing; developing and 
growing a customer base and maintaining existing customers. As President, [the beneficiary] 
will continue to enhance the development and marketing aspects of the U.S. operations. He 
will continue to service as CFO. 
The petitioner submitted an organizational chart depicting the following emvlovees reporting directly to the 
- - 
beneficiary: sales); (sales); technician)- 
(technician); and - technician). The petitioner also submitted a chart that included a list of its 
projected employment through 2008. The chart showed that one of its current employees, m~ 
was employed on a contract basis. The petitioner indicated that it anticipated hiring one additional 
technician and one administration employee by the end of 2006. 
The director denied the petition on April 17, 2006 based on a finding that the petitioner did not establish that 
the U.S. company had been doing business for the previous year. The director did not address whether the 
beneficiary would be employed in a managerial or executive capacity. 
The petitioner subsequently appealed the director's decision to the AAO. In a decision dated May 1,2007, the 
director withdrew the director's decision, but found that there was insufficient evidence in the record to 
establish that the beneficiary would be employed in a primarily managerial or executive capacity under the 
extended petition. The petition was remanded to the director, who was requested to issue a request for 
additional evidence and enter a new decision. 
On August 22, 2007, the director issued a request for evidence in accordance with the AAO's instructions. 
The director instructed the petitioner to submit the following: (1) a list of the beneficiary's specific day-to- 
day duties as President of the U.S. entity as of the date the petition was filed; (2) a list of the job titles and 
specific day-to-day job titles for each employee as of the date of filing; (3) information regarding the number 
of hours each employee worked, their job requirements, and their educational backgrounds; (4) payroll 
statements for each employee for the months of January and February 2006; (5) copies of the company's state 
quarterly wage reports for the first quarter of 2006; (6) copies of IRS Forms 1099 indicating the reporting of 
any contract employees who worked for the company at the time of filing; (7) job descriptions for any 
contract employees; and (8) copies of contracts between the U.S. entity and its contract employees, if 
applicable. 
In a response to the director's request, the petitioner provided the following description of the beneficiary's 
duties: 
Conceptualize, identify and develop new strategic business relationships, business 
partnering and collaboration opportunities; 
Direct and implement policies and objectives of the company to ensure continuing 
operations, maximize returns on investments, and increase productivity; 
Analyze operations to evaluate the performance of the company and staff in meeting 
objectives, and to determine areas of potential cost reduction, improvement or change 
Provide strategic guidance and leadership in coordinating sales initiatives; 
SRC 06 102 52046 
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Review financial data on sourcing alternatives; 
Develop businesdmarketing strategy for targeting potential commercial opportunities; 
Oversee negotiation and management of contracts and ongoing performance review of 
suppliers. 
Develop, approve and manage budges, product pricing, product stewardship, 
procurement contracts and capital expenditures involved in the acquisition and 
deployment of materials required for satellite installation. 
Develop and manage commercial strategies and plans to optimize business 
performance in areas such as cash flow, risk management, supplier relationships and 
performance, and customer satisfaction; 
Manage external relationships important to the success of our company, working with 
executive level management of suppliers, competitors andlor third parties. 
Influence decisions on organizational structure and selection of personnel; 
Single-point accountability for establishing long-term relationships with appropriate 
business partners, vendors and clients within the region; 
Provide focal point and leadership on the development of key sourcing and sales 
performance processes and performance indicators to achieve business improvements 
and assure sales and performance objectives are met; 
Organize working and fixed capital from business profits with parent company. . . 
The petitioner stated that under the beneficiary's leadership the petitioner has grown from five satellite 
television subscribers in April 2005, to 100 subscribers per month in August 2006, to over 5,000 subscribers 
as of August 2007. The petitioner further explained the beneficiary's role in the company and delegation of 
duties as follows: 
[The beneficiary] was engaged to a limited extent in day-to-day activities during the early 
stages of the business. Today, [the petitioner] employs 14 workers: four employees (W-2) and 
ten independent contractors (1099). With the growth of the company, day-to-day activities 
such as taking sales call, resolving technical customer issues, dealing with technicians, 
purchasing and inventory control have been assumed by other personnel, thereby freeing [the 
beneficiary] to develop new business opportunities, establish new strategic business 
relationships and develop additional markets. 
The petitioner submitted the beneficiary 
supervises a vice president The chart depicts 
two sales employees, president, and a 
total of nine technicians and two installation companies under the supervision of the technical supervisor. The 
petitioner also provided the requested detailed 'ob descri tions for the vice president, sales employees and 
technical supervisor. It is noted that and mi had different job titles on 
the organizational chart submitted at the time of filing. 
The petitioner submitted a copy of its Georgia Form DOL-4N, Employer's Quarterly Tax and Wage Report, 
for the frst quarter of 2006, which confirmed that the petitioner had five employees at the time the petition 
SRC 06 102 52046 
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was filed. The petitioner reported only four payroll employees during the second quarter of 2006. The 
petitioner also provided copies of IRS Forms 1099, Miscellaneous Income, issued to a total of 11 contracted 
technicians in 2006. These employees received payments ranging from $800 to $32,845.88. 
Finally, the petitioner submitted copies of independent contractor agreements between the company and the 
contractors named on the organizational chart. Nine of the eleven contracts are dated prior to the filing of the 
petition on February 10,2006. 
The director denied the petition on December 4, 2007, 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 acknowledged the newly submitted organizational chart and independent contractor 
agreements. However, the director observed that the petitioner claimed to have only one contract employee at 
the time the petition was filed. The director further observed that the petitioner assigned different job titles to 
three of its employees, when comparing the new organizational chart to the chart submitted at the time the 
petition was filed. The director found that the petitioner made material changes to its staffing structure in an 
effort to make an apparently deficient petition conform to CIS requirements, and noted that such changes are 
not acceptable. The director concluded that the evidence submitted with the initial petition was not persuasive 
in demonstrating that the beneficiary would be employed in a primarily managerial or executive capacity, as 
the evidence suggested that the beneficiary would be engaged in the performance of tasks necessary to 
promote the petitioner's product. 
On appeal, counsel for the petitioner contends that the director erroneously concluded that the beneficiary 
would be primarily engaged in non-qualifying duties. Counsel provides the following statement on Form I- 
290B: 
The documentary evidence submitted in support of the L-1A petition establishes that the 
beneficiary is eligible for L-1 A classification under Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act. The petitioner is seeking to continue its employment of the beneficiary 
in the position of President. As President, the beneficiary will primarily be engaged in 
performing executive functions in that he will direct the management of the company, 
establish the goals and policies of the company, and exercise discretion in making decisions 
that affect the company. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the beneficiary 
would be employed in a primarily managerial or executive capacity under the extended petition. It is 
emphasized that 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 will only 
consider evidence relevant to the beneficiary's eligibility as of the date the petition was filed in February 
2006. 
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. 5 214.2(1)(3)(ii). The petitioner's description of the job 
SRC 06 102 52046 
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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. 
At the time of filing, the petitioner submitted a vague description of the beneficiary's duties that provided 
little insight into the true nature of the tasks he would perform under the extended petition. General statements 
such as the beneficiary will "oversee all financial, business, marketing and development" of the business, plan 
business objectives, and develop organizational policies are insufficient to establish that the beneficiary's day- 
to-day duties are primarily managerial or executive in nature. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation 
of the beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103,1108 (E.D.N.Y. 1989), afd, 
905 F.2d 41 (2d. Cir. 1990). 
The petitioner also indicated that the beneficiary would be "developing and growing a customer base and 
maintaining existing customers," which suggesting that he was directly involved in marketing and promoting 
the petitioning company and its products, tasks which are not typically considered managerial or executive in 
nature. 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 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology Int'l,, 19 I&N Dec. 593,604 (Comm. 1988). 
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 petitioner's initial job description does not allow the AAO to 
determine the actual tasks that the beneficiary will perform, such that they can be classified as managerial or 
executive in nature, nor does it adequately indicate what proportion of the beneficiary's time will be devoted 
to qualifying duties. 
While the petitioner provided a lengthier description of the beneficiary's duties in response to the request for 
evidence, it is evident that the petitioner has either materially changed or inflated the job titles or duties of all 
of its employees in order to conform to CIS requirements, or the petitioner simply neglected to adhere to the 
director's request for a description of the beneficiary's duties as of February 2006. For example, the petitioner 
stated that it currently employs 14 workers and that, as of November 2007, the beneficiary is no longer 
involved in day-to-day activities such as talung sales calls, resolving technical customer issues, dealing with 
technicians, and purchasing and inventory control tasks. However, the petitioner has not presented persuasive 
evidence to establish that the beneficiary was relieved of performing such non-managerial duties at the time 
the petition was filed. When responding to a request for evidence, the 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. Similarly, the petitioner cannot change the job titles, duties 
and level of authority of the beneficiary's subordinates. The petitioner must establish that the position offered 
SRC 06 102 52046 
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to the beneficiary when the petition was filed merits classification as a managerial or executive position. 
Matter of Michelin Tire Corp., 17 T&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those of his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. 
At the time the petition was filed, the petitioner claimed to employ the beneficiary as president, two sales 
employees, two technicians, and one independent contractor who was also a technician. In response to the 
director's request for documentary evidence of the company's staffing and organizational structure as of 
February 2006, the petitioner claims to employ the beneficiary as president, a vice president, two sales 
employees, a techcal supervisor, and 1 1 subordinate technicians and installation companies. The petitioner 
also presents new evidence in the form of independent contractor agreements in an attempt to establish that 
the majority of these contractors were working for the company at the time the petition was filed. 
The petitioner has not explained why it initially claimed to employ only one independent contractor, and 
provided no explanation for the changes in the other employees' job titles and job bctions, particularly the 
addition of a "vice president" and a "technical supervisor." It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Although all of the independent 
contractors listed on the new organizational chart did receive pa 
 ents from the petitioning company in 2006, 
the petitioner has not demonstrated that any of them, other than yrn , were in fact working for the 
company as of February 2006. name is the only name that appears on customer installation 
agreements dated on or before the date of filing. Furthermore, given the petitioner's statement that it had only 
100 satellite television customers as of August 2006, its new claim that it employed 1 1 installation technicians 
as of February 2006 is simply not credible. Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. at 591. 
In light of these unexplained discrepancies and the petitioner's attempts to make material changes to the 
petition, the director properly excluded or gave minimal weight to the majority of the evidence submitted in 
response to the request for evidence in making his determination. 
Furthermore, the evidence submitted with the initial petition falls significantly short of establishing that the 
beneficiary would be employed in a primarily managerial or executive capacity. As discussed, the petitioner 
failed to provide a detailed description of the beneficiary's duties sufficient to establish that he would be 
employed in a managerial or executive capacity. The fact that the beneficiary manages a business does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
SRC 06 102 52046 
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capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 
1987) (noting that section 101(a)(15)(L) of the Act does not include any and every type of "manager" or 
"executive"). While the AAO does not doubt that the beneficiary exercises discretion over the petitioner's 
day-to-day operations and has the appropriate level of authority, the petitioner has failed to demonstrate that 
his duties would be in a primarily managerial or executive capacity as of the date of filing. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1 101 (a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, USCIS 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 USCIS to examine the organizational structure and 
staffing levels of the petitioner. 
 See 8 C.F.R. 5 214.2(1)(14)(ii)(D). 
 The regulation at 8 C.F.R. 5 
214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of the petition to 
support an executive or managerial position. There is no provision in USCIS 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 engaged in selling Dish Network satellite 
television services. The petitioner operates from a retail location, and, based on the photographs provided, 
also sells cellular telephones and services. In February 2006 when the petition was filed, the petitioner 
indicated that it employed the beneficiary as president, two sales employees, and three technicians. Although 
the director requested a detailed position description for all employees, the petitioner's response did not reflect 
the actual duties of the beneficiary's subordinate employees as of the date the petition was filed. As 
discussed above, the petitioner changed the job titles and duties of three of its payroll employees. Due to the 
petitioner's failure to specify the actual duties performed by its employees as of February 2006, the AAO 
cannot determine to what extent these employees relieved the beneficiary from performing non-managerial 
and non-executive tasks. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). 
Furthermore, given the lack of evidence regarding the duties performed by the beneficiary's subordinates at 
the time of filing, the petitioner has not established that the subordinate employees hold positions that are 
supervisory, professional, or managerial. See 5 10 1 (a)(44)(A)(ii) of the Act. 
The petitioner reasonably requires employees to market and advertise the business, sell products and services 
to retail customers, coordinate with customers and technicians to schedule customer installations, respond to 
customer inquiries and technical questions, maintain relationships with suppliers, provide technical support, 
purchase and monitor inventory for its store, maintain the company's day-to-day finances, and perform routine 
clerical and administrative tasks associated with operating a business. The petitioner has not established that 
two sales employees and three technicians would relieve the beneficiary from actively participating in the 
day-to-day operations of the company. 
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Collectively, the lack of a subordinate staff brings into question how much of the beneficiary's time could 
actually be devoted to the claimed managerial or executive duties. As stated in the statute, the beneficiary 
must be primarily performing duties that are managerial or executive. See sections 101 (a)(44)(A) and (B) of 
the Act. Furthermore, 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 10 1 (a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 101 (a)(44). The reasonable needs of the petitioner 
may justify a beneficiary who allocates 5 1 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. The AAO has long interpreted the regulations and statute to prohibit discrimination against 
small or medium size businesses. However, the AAO has also long required the petitioner to establish that the 
beneficiary's position consists of primarily managerial and executive duties. As discussed above, the 
petitioner has not established this essential element of eligibility. 
Although the petitioner appears to have hired additional staff subsequent to the filing of the petition and achieved 
sigmficant growth with respect to its annual income and customer base, the petitioner must establish eligibility 
at the time of filing the nonimmigrant visa petition. As noted above, a visa petition may not be approved 
based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 
I&N Dec. 45,49 (Comm. 1971). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a primarily managerial or executive capacity under the extended petition. Accordingly, the appeal will be 
dismissed. 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.