dismissed L-1A Case: Electronics

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
identifying data deleted to 
prevent clearly onwarranted 
 U. S. Citizenship 
invasim of pe~~nal privw) 
 and Immigration 
Services 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
IN 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 fkther inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. § 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
WAC 08 168 52506 
' Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the 
State of California and is allegedly in the business of "marketing, service and project management of 
electronics testing device products." 
The director denied the petition concluding that the petitioner did not establish (1) that the beneficiary was 
employed abroad in a primarily managerial or executive capacity; or (2) 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 asserts that the director erred and that the 
beneficiary will perform primarily qualifying duties in the United States. Counsel did not address the 
beneficiary's foreign employment on appeal. Counsel also asserts that the director erred by failing to treat the 
petitioner as a "new office" under 8 C.F.R. 5 214.2(1)(3)(~). Counsel argues that, as a "start-up new 
company," the petitioner need only establish that the beneficiary will perform qualifying duties within one 
year of petition approval rather than establish that the beneficiary will perform qualifying duties immediately. 
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. 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 
WAC 08 168 52506 
* Page 3 
education, training, and employment qualifies hirnlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The first issue in the present matter is whether the beneficiary was employed abroad in a primarily managerial 
or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 
 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction £rom higher level executives, the board 
of directors, or stockholders of the organization. 
It is not clear whether the petitioner is claiming that the beneficiary was primarily performing managerial 
duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. Given the lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary 
WAC 08 168 52506 
Page 4 
was employed in either a managerial or an executive capacity and will consider both classifications. 
The petitioner described the beneficiary's duties abroad as "vice president in charge of global sales and 
marketing development" in a letter dated May 14, 2008 as follows: 
[The beneficiary] has full responsibility for the staffing and performance of the [global sales 
and marketing development] department. This responsibility includes the recruitment and 
training of staff, over which she has hiring and firing authority. 
She is supervising three deputy managers and eight employees and controlling the work and 
performance[e] of the department. [The beneficiary] has to direct and exercise discretion 
over day to day operations and function of the department over which [the beneficiary] has 
authority. 
The petitioner also submitted an organizational chart for the foreign entity. The chart does not list the 
beneficiary's position; however, the ch& portrays the global sales and marketing development division as 
directing three "territories," distribution management, and market exploitation. 
On June 5, 2008, the director requested additional evidence. 
 The director requested, inter alia, job 
descriptions for all employees under the beneficiary's supervision abroad and a more detailed description of 
the beneficiary's foreign job duties, including a breakdown of the amount of time the beneficiary devotes to 
each ascribed duty. 
In response, the petitioner further described the beneficiary's foreign position as follows: 
[The beneficiary] is currently the Vice President in charge of Global Sales and Marketing 
Development Division at our foreign company. To be specific, [the beneficiary] has to make 
and decide our global sales and marketing strategies and their enforcement and operation over 
Taiwan territory, China territory, North America territory, Distributor management and 
Market Exploitation. In this position, she has full responsibility for the staffing and 
performance of the department. She is supervising three (3) senior managers and eight (8) 
other employees and controlling the work and performances of the department. The duties of 
the supervised employees are: accounts management, sales, marketing and technical service 
support in Taiwan, China and North America markets. [The beneficiary] has to direct and 
exercise discretion over day to day operations and function of the department over which [the 
beneficiary] has authority. 
[The beneficiary] spends around 50% of time in Global sales and 50% of time in Global 
marketing duties. 
On June 25, 2008, the director denied the petition. The director concluded that the petitioner failed to 
WAC 08 168 52506 
Page 5 
establish that the beneficiary was employed abroad in a primarily managerial or executive capacity. 
On appeal, counsel does not address the beneficiary's foreign duties or the director's decision to deny the 
petition on this basis. 
Upon review, the AAO concurs with the director's decision, and the appeal will be dismissed. 
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) and (iv). The petitioner's description 
of the job duties must clearly describe the duties performed by the beneficiary and indicate whether such 
duties were either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the 
duties of the position entailed executive responsibilities, while other duties were managerial. A petitioner 
may not claim that a beneficiary was employed as a hybrid "executive/manager" and rely on partial sections 
of the two statutory definitions. 
In this matter, the petitioner's description of the beneficiary's job duties as "vice president in charge of global 
sales and marketing development" fails to establish that the beneficiary acts in a "managerial" or "executive" 
capacity. In support of the petition, the petitioner has submitted a vague and non-specific job description 
which fails to sufficiently describe what the beneficiary does on a day-to-day basis. For example, the 
petitioner states that the beneficiary makes decisions regarding global sales and marketing strategies, directs 
day-to-day operations of the department, and supervises three "senior managers" and eight "other 
employees." The petitioner also claims that the beneficiary "spends around 50% of time in [gllobal sales and 
50% of time in [gllobal marketing duties." However, the petitioner does not specifically describe what she 
does to make decisions regarding sales and marketing strategies, directing operations, or supervising her 
subordinates. Importantly, the petitioner fails to specifically describe the duties or organizational structure of 
the beneficiary's claimed subordinate staff. The fact that a petitioner has given a beneficiary a managerial or 
executive title and has prepared a vague job description which includes inflated job duties does not establish 
that a beneficiary actually performs managerial or executive duties. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive 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). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Corn. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary primarily performs qualifying 
duties abroad. Not only are the ascribed duties so vaguely described that it cannot be determined whether 
they are qualifying in nature, the record is not persuasive in establishing that the beneficiary is relieved by a 
subordinate staff of the need to perform the non-qualifying marketing, sales, and first-line supervisory tasks 
inherent to her duties. In this matter, the petitioner failed to specifically describe the duties of the 
beneficiary's claimed subordinate staff, even though this evidence was specifically requested by the director. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). Absent descriptions of the duties of her subordinate staff, the record is not 
persuasive in establishing that the beneficiary is primarily performing qualifying duties. Accordingly, it 
appears more likely than not that the beneficiary primarily performs non-qualifying sales, marketing, and 
WAC 08 168 52506 
Page 6 
first-line supervisory tasks necessary to the provision of a service or the production of a product. 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 International, 19 I&N Dec. 593,604 (Comrn. 1988). 
The petitioner has also failed to establish that the beneficiary supervises and controls the work of other 
supervisory, managerial, or professional employees, or manages an essential function of the organization. In 
this matter, the petitioner claims that the beneficiary supervises three "senior managers" and eight "other 
employees." The petitioner further claims that "[tlhe duties of the supervised employees are: accounts 
management, sales, marketing and technical service support in Taiwan, China and North America markets." 
However, as the petitioner failed to specifically describe the duties of these staff members or establish that 
any of the subordinates has supervisory or managerial authority over other workers, the petitioner failed to 
establish that any of the subordinates is a bona fide supervisory or managerial employee. Once again, failure 
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 8 103.2(b)(14). Therefore, it appears that the beneficiary is, at most, a first-line supervisor 
of non-professional workers. A managerial employee must have authority over day-to-day operations beyond 
the level normally vested in a first-line supervisor, unless the supervised employees are professionals. 8 
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Moreover, as the petitioner did not establish the skill level or educational background required to perform the 
duties of the subordinate positions, the petitioner has not established that the beneficiary manages 
professional employees.' Accordingly, the petitioner has not established that the beneficiary is employed 
primarily in a managerial capacity abr~ad.~ 
1 
In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the 
subordinate positions required a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 8 1101(a)(32), states that "[tlhe termprofession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Cornm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
Although the petitioner has not argued that the beneficiary manages an essential function of the organization, 
the record would not support this position even if taken. The term "function manager" applies generally when 
a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible 
for managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. The 
term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
manages an essential function, the petitioner must msh a written job offer that clearly describes the duties 
performed in managing the essential function, i.e., identify the function with specificity, articulate the 
essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. See 8 C.F.R. 8 214,2(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 
WAC 08 168 52506 
Page 7 
Similarly, the petitioner has failed to establish that the beneficiary acts in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary acts primarily in an executive capacity. As explained above, it appears instead 
that the beneficiary primarily performs non-qualifying sales and marketing tasks and serves, at most, as a 
first-line supervisor of non-professional workers. Therefore, the petitioner has not established that the 
beneficiary is employed abroad primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary primarily performs managerial or 
executive duties abroad, and the petition may not be approved for that reason. 
The second issue in the present matter is whether the petitioner has established that the beneficiary will 
primarily perform managerial or executive duties in the United States. 
The petitioner described the beneficiary's proposed duties in the United States in a letter dated May 14, 2008 
as follows: 
[The beneficiary] will direct the management of the company, establish the goals and policies 
of the company, exercise wide latitude in discretionary decision-making. [The beneficiary] 
will receive general supervision or direction from the board of directors of the company. 
[The beneficiary] will lead a team of highly competent and experienced professionals to 
hlfill marketing, service and project management. She will manage, evaluate, review and 
direct a management team of at least two senior managers reporting to her directly; interface 
with suppliers, vendors, manufacturing, project management and test engineering service 
teams. 
tasks related to the function. In this matter, the petitioner has not provided evidence that the beneficiary 
manages an essential function. The petitioner's vague job description fails to document that the beneficiary's 
duties are primarily managerial and it appears that the beneficiary is, at most, a first-line supervisor of non- 
professional employees. 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 are managerial, nor can it 
deduce whether the beneficiary primarily performs the duties of a function manager. See IKEA US, Inc. v. 
US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
WAC 08 168 52506 
Page 8 
The petitioner claims in the Form 1-129 to presently employ five workers. However, the petitioner submitted 
its Form 941, Employer's Quarterly Federal Tax Return, fiom the first quarter of 2008 in which it claims to 
have employed only one worker, -, during that time period. 
Finally, the petitioner submitted an organizational chart for the United States operation. The chart shows the 
beneficiary at the top of the organization serving as "president" but also as the head of the sales and 
marketing development division. The beneficiary is portrayed as directly or indirectly supervising six 
workers. However, the only worker identified in the petitioner's Form 941 does not appear in the chart, and 
the record is devoid of evidence that the petitioner actually employs any of the six workers who are identified 
in the organizational chart. Also, while the chart includes two lists of job duties, it is unclear to whom exactly 
these duties are ascribed. 
On June 5, 2008, the director requested additional evidence. The director requested, inter alia, a more 
detailed description of the beneficiary's proposed duties in the United States and job descriptions for all 
employees under the beneficiary's supervision. 
In response, the foreign employer submitted a letter dated June 9, 2008 in which it claims that the petitioner 
presently employs five workers. The petitioner also submitted an updated organizational chart for the United 
States operation. The chart now shows the position of vice president of business and administration as vacant 
and indicates that the beneficiary will directly supervise an administrative worker, a business department 
worker, two sales and marketing workers, and a "tech support" worker. 
The petitioner submitted a job description for the beneficiary as follows: 
[The beneficiary] will direct the management of the company, establish the goals and policies 
of the company, exercise wide latitude in discretionary decision-making. To be specific, [the 
beneficiary] will supervise the following functions: developmentltraining 
projectlmanagement for sellers, administrative arrangement, evaluate Sales & Marketing 
performance, technical support, customer service, product development, design and 
engineering functions. [The beneficiary] will receive general supervision or direction fiom 
the board of directors of the company. [The beneficiary] will lead a team of highly 
competent and experienced professionals to fulfill marketing, service and project 
management. 
[The beneficiary] will spend around 50% of time in BusinesslAdministration and 50% of time 
in North America Sales & Marketing development duties. 
Finally, the petitioner submitted job descriptions for its claimed five subordinate workers. The account 
manager, sales assistant, and "mechanical engineers" are described as performing the tasks necessary to 
provide a service or produce a product. The workers described as "mechanical engineers" are described as 
"tech support" and "business department" in the organizational chart, and the record is devoid of evidence 
establishing that these two workers are bona fide engineers or that engineering degrees are required to 
perform their ascribed duties. The duties of the "regional manager" of the sales and marketing exploitation 
department are described as follows: 
WAC 08 168 52506 
Page 9 
Lead the team in the U.S. office[.] 
Manage staff in Sales/service/design/FAEladministration[.] 
Respond [sic] the revenue and profit in U.S. 
Respond [sic] the sales activitieslopen issues, report to President monthly. 
Summarize and comment weekly report from each staff. 
Setup the target and KPI (Key performance indicator) for each staff quarterly. 
Respond to technical inquiry and approve the design in U.S. 
Create service report and advise improvement. 
Survey the local vendor for RMA or prototype fabrication. 
Sign company expense and also for items less than $1000. 
On June 25, 2008, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will primarily perform qualifying duties in the United States. 
Counsel also argues that the director erred by failing to treat the petitioner as a "new office" under 8 C.F.R. § 
214.2(1)(3)(~). Counsel argues that, as a "start-up new company," the petitioner need only establish that the 
beneficiary will perform qualifying duties within one year of petition approval rather than establish that the 
beneficiary will immediately perform qualifying duties. 
Upon review, the petitioner's assertions are not persuasive. 
As a threshold issue, it is noted that the director did not err in requiring that the petitioner establish that the 
beneficiary will primarily perform qualifying managerial or executive duties in the United States immediately 
upon petition approval. 
Title 8 C.F.R. $ 214.2(1)(3)(~) states in part that, if a petition indicates that a beneficiary is coming to the 
United States as a manager or executive "to open or to be employed in a new office," the petitioner shall 
submit evidence that the United States operation shall support an executive or managerial position "within 
one year of the approval of the petition." A "new office" is defined as "an organization which has been doing 
business in the United States through a parent, branch, affiliate, or subsidiary for less than one year." 8 
C.F.R. 
 214.2(1)(l)(ii)(F). Accordingly, if a petitioner indicates that a beneficiary is coming to work at a 
"new office," the petitioner generally need not establish that the beneficiary will be employed immediately in 
a primarily managerial or executive capacity, provided the United States operation meets the definition of a 
"new office." In such cases, the petitioner must establish, inter alia, that the organization will be able to 
support a managerial or executive position within one year. 
In this matter, the petitioner clearly indicates in the L Classification Supplement to Form 1-129 that the 
beneficiary is not coming to the United States to open a new office. The director reasonably relied on this 
averment in the petition in adjudicating the petition and in not applying the criteria at 8 C.F.R. 8 
214.2(1)(3)(~). Although the petitioner indicates that it was incorporated in the State of California less than 
one year prior to the filing of the petition, such averments do not necessarily mean the petitioner is a "new 
office" as defined in the regulations, especially given the petitioner's averment to the contrary in the L 
Classification Supplement. A petitioner can only be classified as a "new office" if it has been "doing 
WAC 08 168 52506 
Page 10 
business" in the United States through a parent, branch, affiliate, or subsidiary for less than one year. It is 
possible that the petitioning organization in this matter had been doing business in the United States through 
an entity or branch office other than the petitioner. Accordingly, as the petitioner has indicated in the Form I- 
129 that the beneficiary is not coming to the United States to open a new office, the director correctly treated 
the petitioner as a fully formed entity and properly required that the petitioner establish that the beneficiary 
will be employed immediately in a primarily managerial or executive capacity. 
Furthermore, on appeal, the AAO will not consider the petition as one for a "new office" under the 
regulations and will not apply the criteria at 8 C.F.R. 5 214.2(1)(3)(~). On appeal, a petitioner cannot offer a 
new position to the beneficiary, or materially change a position's title, its level of authority within the 
organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the position 
offered to the beneficiary when the petition was filed merits classification as a managerial or executive 
position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not 
make material changes to a petition in an effort to make a deficient petition conform to U.S. Citizenship and 
Immigration Services (USCIS) requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 
1998). If significant changes are made to the initial request for approval, the petitioner must file a new 
petition. Accordingly, as counsel's argument on appeal would result in a change in job responsibilities for the 
beneficiary to those associated with the opening of a new office in the United States, counsel's assertions are 
inappropriate. If the petitioner believes that its petition is more appropriately characterized as a "new office" 
petition, it should file a new petition marking the appropriate box on the L Classification Supplement and 
submitting appropriate supporting evidence rather than seeking this change on motion or on appeal to the 
AAO. 
In view of the above, 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. 8 214.2(1)(3)(ii). The petitioner's 
description of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties will be either in an executive or managerial capacity. Id. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that she will act in a 
"managerialt1 or "executivet' capacity in the United States. In support of the petition, the petitioner has 
submitted a vague and non-specific job description which repeats the regulations and fails to sufficiently 
describe what the beneficiary will do on a day-to-day basis. For example, the petitioner states that the 
beneficiary will "supervise" development, training, project management, administration, sales and marketing 
performance, technical support, customer service, product development, and design and engineering 
functions. The petitioner also claims that the beneficiary will "lead a team" of professionals and that she will 
devote 50% of her time to administration and 50% to sales and marketing. However, the petitioner does not 
specifically explain what, exactly, the beneficiary will do to "supervise" these various duties other than to act 
as a first-line supervisor of her subordinate staff. Once again, the fact that a petitioner has given a beneficiary 
a managerial or executive title and has prepared a vague job description which includes inflated job duties 
does not establish that a beneficiary will perform managerial or executive duties. Specifics are clearly an 
important indication of whether a beneficiary's duties will be primarily executive or managerial in nature; 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Suva, 724 F. Supp. 1103, afd, 905 F.2d 41. Going on record without supporting documentary 
WAC 08 168 52506 
Page 11 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190. 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties. Not only are the ascribed duties so vaguely described that it cannot be determined whether 
they will be qualifying in nature, it appears that the beneficiary will primarily perform non-qualifying fust- 
line supervisory tasks associated with her supervision of, at most, five sales, marketing, and administrative 
workers. However, as noted above, the record is not persuasive in establishing that the petitioner has yet 
employed many of the described subordinate workers. Future hiring plans may not be considered in 
determining whether the beneficiary will primarily perform qualifying duties immediately upon petition 
approval. 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 of Michelin Tire Cop., 17 I&N Dec. 248. Accordingly, it appears more likely than not 
that the beneficiary will primarily perform the administrative or operational first-line supervisory tasks 
necessary to the provision of a service or the production of a product. 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 International, 19 I&N Dec. at 604. 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential hction of the organization. 
In this matter, the petitioner claims that the beneficiary will supervise one supervisor, the "regional manager" 
of the sales and marketing exploitation department, who, in turn, supervises an account manager. The 
beneficiary will allegedly supervise the remaining workers. However, the petitioner has failed to establish 
that the regional manager is a bona fide supervisory or managerial employee who has authority over the 
employment of subordinates. It is not credible that the petitioner's organization would reasonably require the 
services of a managerial or executive worker to supervise a single "regional manager" who supervises a single 
account manager. To the contrary, given the size and structure of the United States operation, it is more likely 
than not that the "regional manager" primarily performs sales and marketing tasks alongside the account 
manager and the other claimed workers and, consequently, the beneficiary will be, at most, a first-line 
supervisor of sales, marketing, and administrative workers. A managerial employee must have authority over 
day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised 
employees are professionals. 
 $ 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. Moreover, as the petitioner did not establish the skill level or educational 
background required to perform the duties of the subordinate positions, including the "engineering" positions, 
the petitioner has not established that the beneficiary will manage "professional" employees. Accordingly, 
the petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.3 
3~lthough the petitioner has not argued that the beneficiary will manage an essential function of the 
organization, the record would not support this position even if taken. The petitioner's vague job description 
fails to document that the beneficiary's duties will be primarily managerial, and it appears that the beneficiary 
will be, at most, a first-line supervisor of non-professional employees. Once again, absent a clear and 
credible breakdown of the time spent by the beneficiary performing her duties, the AAO cannot determine 
. WAC 08 168 52506 
' Page 12 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. As 
explained above, it appears instead that the beneficiary will primarily perform non-qualifying administrative 
or operational tasks as a first-line supervisor of non-professional workers. Therefore, the petitioner has not 
established that the beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration 
Services, 469 F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 
178 (D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties in the United States, and the petition may not be approved for that reason. 
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. 8 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
what proportion of her duties will be managerial, nor can it deduce whether the beneficiary primarily will 
perform the duties of a function manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d at 24.