dismissed L-1A Case: Export / Trade

US. Department of Homeland Ssurit~ 
U.S. Citizenship and Immigration Services 
OfJice ofAdmrnrstratrve Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
APR 19 4 2009 
FILE: EAC 07 265 50308 OFFICE: VERMONT SERVICE CENTER Date: 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(lS)(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. 
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. 5 103.5 for the 
specific requirements. All motions must be submitted to the ofice 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, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
EAC 07 265 50308 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. 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 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. tj 1101(a)(15)(L). The petitioner, a Texas limited liability company, states that it is 
engaged in providing the export of oil lubricants. It claims to be a subsidiary of, located in 
Costa Rica. The beneficiary was initially granted one year in L-1A classification in order to open a new office 
in the United States and it now seeks to extend the beneficiary's status for two additional years. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be 
employed 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. On appeal, counsel for the petitioner asserts that the director's decision 
contains several errors of law and fact, was based on a number of irrelevant factors, and disregards pertinent 
evidence submitted by the petitioner. Counsel submits a brief 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 the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
The regulation at 8 C.F.R. tj 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. 
EAC 07 265 50308 
Page 3 
The regulation at 8 C.F.R. 8 214.2(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 sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. !$ 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means 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 
EAC 07 265 50308 
Page 4 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 l(a)(44)(B) of the Act, 8 U.S.C. tj 1 10 l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on September 25, 2007. The 
petitioner indicated on Form 1-129 that it has three employees. The petitioner explained that the company 
"provides complete export brokerage services, including purchase contracts, shipping, and delivery 
scheduling in the oil lubricant field." The petitioner described the beneficiary's duties as follows: 
The President will continue to execute all decision-making authority regarding the 
Company's financial funds and capital investments. He will continue to be solely responsible 
for developing relationships with U.S. and Central American financial institutions and will 
continue to represent the company in connection with financial transactions. He will continue 
to have discretionary authority over the hiring and firing of all company personnel and 
coordinate all liaising activities involving international marketing between [the petitioner] 
and U.S. companies. He will continue to establish all financial goals, objectives, and 
operations as well as develop the local market and procurement base. He will continue to 
oversee the research and analysis of new product lines and determine the feasibility of 
marketing same with Central America. He will continue to oversee all the day-to-day 
international marketing and trade operations involving proper documentation, letters of 
credit, new venture planning, budgeting and global purchasing and licensing. He will 
continue to have sole discretionary authority in determining and directing all financial goals 
and policies by determining investment projects. As the Company expands, the President's 
job duties will continue to increase in order to meet the demands of its ever increasing 
market. 
The director issued a request for additional evidence on October 8, 2007. The director requested, inter alia, 
additional evidence to establish that the beneficiary will be employed in a primarily managerial or executive 
capacity under the extended petition, including the following: (1) a comprehensive description of the 
EAC 07 265 50308 
Page 5 
beneficiary's duties; (2) a list of all U.S. employees by name and job title; (3) a position description for each 
employee, including a breakdown of the number of hours allocated to each job duties on a weekly basis; (4) 
copies of the company's Forms 941, Employer's Quarterly Tax Return, for the first and second quarters of 
2007; and (5) copies of IRS Forms W-2 and 1099 issued in 2006. 
In a letter dated November 7, 2007, counsel for the petitioner provided the following description of the 
beneficiary's duties: 
Supervise Management Results in United States and Central America - 8 Hr./week 
Supervise Management and Finance Performance - 4 Hr./week 
Supervise Senior Level Personnel in United States and Costa Rica - 4 Hr./week 
Final Decision on Future Commitments for Finance, Loans and any Standby Letter of 
Credit or Drafts - 4 Hr./week 
Manages the Macro Economy of The Company - 8 Hr./week 
Utilizes High Level Contacts (President and CEO) with Supplier Company - 4 Hr./week 
Utilizes High Level Contacts with Bank Institutions (Senior Vice Presidents) - 4 
Hr./week 
Outstanding Business Relations in Central America and The United States 4 Hr./week 
The petitioner indicated that the beneficiary directly supervises a 
 ho has 
a bachelor's degree in marketing and performs the following duties: 
Supervise purchase end products oil lubricants with USA suppliers 
Responsible for oil lubricants shipments from USA to Central America - 6 Hr./week 
Coordinate sales and marketing in Central America - 6 Hr./week 
Supervise sales workforce - 4 Hr./week 
Coordinate USA bank accounts and Central American bank accounts for Letters of Credits and 
Line of Credits - 2 Hr./week 
Bank management relations to make sure services are competitive and adequate - 4 Hr./week 
Coordinate bank account funds for payment obligations - 4 Hr./week 
Coordinate annual consumption for Central American clients - 4 Hr./week 
Forecast shipment programs with USA suppliers - 2 Hr./week 
Responsible for Advertising and Promotions - 2 Hr./week 
Responsible for Delivery of Shipment Documents to Customers - 2 Hr./week 
Manage Projected Sales Forecast - 2 Hr./week 
Manage Introduction of Products to New Markets - 2 Hr./week 
Finally, the petitioner indicates that it employs a part-time assistant manager1 who is responsible for 
managing bank books, bank reconciliations, day-to-day online banking, bank relations, and general office 
duties. 
1 
 In counsel's letter dated November 7, 2007, she refers to the assistant manager position as "administrative 
assistant." 
EAC 07 265 50308 
Page 6 
Counsel indicated in her letter dated November 7, 2007 that the petitioner has immediate plans to hire a 
controller and an executive secretary. In addition, counsel stated that the beneficiary has continued to travel 
frequently to Costa Rica to oversee the operations of and make executive decisions regarding the development 
of the foreign entity. The petitioner submitted an affidavit from the foreign entity's general manager, who 
stated that the beneficiary returns to Costa Rica frequently in order to oversee the foreign company. 
Specifically, he states that the beneficiary performs the following duties: 
During his visits, he conducts several meetings with senior-level personnel to develop 
work plans and duties, such as sales, marketing, cash flow, account receivables, account 
payables, and inventory; 
Supervises the management and financial operations through the meetings with senior 
level personnel; 
Makes the final decision on management strategies that [the foreign entity] follows. 
The director denied the petition on November 15, 2007, concluding that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director observed that the job duties described identify "general managerial functions" and do 
not specify exactly what the beneficiary will be doing on a day-to-day basis. The director also noted the lack 
of salespersons or other staff to provide the sales and services of the organization to customers. In addition, 
he director stated that he considered other factors, such as the beneficiary's salary, the subordinate employees' 
apparent lack of college degrees, the type of office space occupied by the company, and the petitioner's failure 
to provide a breakdown of the number of hours devoted to each employees' job duties on a weekly basis. 
On appeal, counsel for the petitioner asserts that the petition should be approved due to several errors of law 
and fact in the director's decision. First, counsel asserts that the director incorrectly denied the petition, in 
part, based on an assumption that the beneficiary and his subordinate do not hold bachelor's degrees and serve 
in professional positions. Counsel emphasizes that it "is a clear error of law to state that L-1A is reserved 
exclusively for those who occupy professional positions and who supervise others in professional positions." 
Counsel asserts that the beneficiary is acting in an executive capacity, and notes that the statutory definition of 
"executive capacity" is silent with respect to supervision of subordinate employees. 
Counsel further asserts that the beneficiary "is supervising and controlling the work of a professional (an 
individual with a degree in Marketing) who also is a supervisory employee (overseeing the work of the 
Assistant Manager who performs the administrative functions of the office) and a managerial employee 
(managing the essential function of marketing and sales throughout Central America) . . . ." Counsel further 
asserts that the beneficiary himself is also a function manager as he is "supervising the overall management 
for the U.S. and Costa Rican companies." 
In addition, counsel states that the director incorrectly stated in his decision that the petitioner failed to 
provide the names of the beneficiary's subordinates, and also incorrectly stated that the positions held by the 
subordinates are "supervisor" and "administrative assistant." Counsel asserts that the names of the employees 
were provided and their job titles were clearly identified as "Director Manager" and "Assistant Manager." 
Counsel also contends that the director erroneously stated that the petitioner did not indicate whether its 
employees possess college degrees, and that it did not provide a breakdown of the number of hours devoted to 
EAC 07 265 50308 
Page 7 
each employee's job duties on a weekly basis. Counsel contends that all of these erroneous comments suggest 
that the director did not carefully review the entirety of the evidence in the record. 
Counsel further addresses the director's observations regarding the company's office space, stating "that the 
[Vermont Service Center] has suggested that because the offices look the same, it follows that everyone must 
have similar jobs is nonsensical." Counsel submits that the petitioner clearly set forth the roles held by each 
employee. 
In response to the director's determination that the petitioner did not establish that it has salespersons or other 
subordinate employees to provide the sales and services of the company, counsel states that the 
DirectorIManager coordinates the sales and marketing in Latin America and supervises the sales workforce. 
Counsel notes that the petitioner has not been able to market its product in the United States as it is awaiting 
certification from the American Petroleum Institute. Counsel asserts that the beneficiary and his subordinate 
retain ties to the foreign entity and travel to Costa Rica to oversee sales operations there on a frequent basis. 
Counsel states that the sales force in Costa Rica includes a sales manager, two full-time salespersons and a 
truck driver. 
Finally, counsel addresses the director's finding that the beneficiary's proffered salary of $48,000 is not 
commensurate with a bona fide managerial or executive position. Counsel emphasizes that nowhere in the 
regulations does the L- 1 category require a certain level of remuneration for an executive or manager. 
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. However, as 
a preliminary matter, the AAO concurs with counsel that the director's decision does in fact contain factual 
errors, and an application of improper standards with respect to the beneficiary's salary and the nature of the 
petitioner's office space. Overall, the director's decision reflects that he did not carefully review the totality of 
the evidence in the record of proceeding. The director should focus on applying the statute and regulations to 
the facts presented by the record of proceeding. 
However, the AAO cannot find, nor has counsel claimed, that these errors led the director to incorrectly 
conclude that the beneficiary would not be employed in a primarily managerial or executive capacity. The 
director's determination was in fact supported by valid references to evidence in the record. Specifically, the 
director noted that the petitioner failed to provide a detailed description of the beneficiary's actual duties, and 
instead merely identified "general managerial functions." Neither counsel nor the petitioner has directly 
addressed this specific deficiency on appeal. The AAO also finds that the director had ample reason to 
question who would provide the day-to-day sales and services of the company based on the evidence of 
record at the time of adjudication. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 199 1). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). Therefore, the AAO will address 
the petitioner's evidence and eligibility herein. 
EAC 07 265 50308 
Page 8 
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. 9 214.2(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 are 
either in an executive or managerial capacity. Id. 
The definitions of executive and managerial capacity each 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). While the AAO does not doubt that the beneficiary 
exercises discretion over the petitioner's business as its president, majority owner and highest ranking 
employee, the totality of the evidence submitted does not demonstrate that the beneficiary's actual duties will 
be primarily managerial or executive in nature. 
The petitioner's initial description of the beneficiary's duties was vague and failed to identify the specific tasks 
the beneficiary would perform in a managerial or executive capacity. For example, the petitioner stated that 
the beneficiary will "continue to execute all decision-making authority regarding the Company's financial 
funds"; "be solely responsible for developing relationships with U.S. and Central American financial 
institutions"; and "have sole discretionary authority in determining and directing all financial goals and 
policies." While these broad responsibilities suggest that the beneficiary has an appropriate level of authority, 
such statements provide little insight into what the beneficiary does during a typical workweek. 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. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 4 1 (2d. Cir. 1990). 
The beneficiary's remaining responsibilities relate to the petitioner's marketing, product research and 
international trade operations, but also fail to reveal the beneficiary's specific duties with respect to these 
areas. The petitioner stated that the beneficiary will "coordinate all liaising activities involving international 
marketing between [the foreign] and U.S. companies"; "oversee the research and analysis of new product 
lines and determine the feasibility of marketing same with Central America"; "develop the local market and 
procurement base"; and "oversee all the day-to-day international marketing and trade operations involving 
proper documentation, letters of credit, new venture planning, budgeting and global purchasing and 
licensing." The petitioner did not, for example, explain the actual tasks the beneficiary performs to "develop 
the local market and procurement basis," or explain who performs the productJmarketing research and 
analysis and day-to-day international marketing and trade activities. 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. at 1108. 
Based on a review of the petitioner's initial description, the director reasonably requested that the petitioner 
provide a comprehensive description of the beneficiary's duties and a breakdown of the number of hours 
devoted to his duties on a weekly basis. While the petitioner submitted a response, the duties listed therein 
EAC 07 265 50308 
Page 9 
bore little resemblance to the initial position description and were described in even broader terms. For 
example, the petitioner indicated that the beneficiary will "supervise management results," "supervise 
management and finance performance," and "manage the macro economy of the company." These duties, 
which according to the petitioner, account for half of the beneficiary's time in a given workweek, cannot be 
considered a "comprehensive description" of the beneficiary's duties. Any 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). 
Much of the remainder of the description submitted in response to the request for evidence was equally 
nonspecific and included such duties as "utilizes high level contacts" with supplier company and banks, and 
"outstanding business relations in Central America and the United States." These broad assertions are not 
probative descriptions of the beneficiary's actual day-to-day responsibilities; the petitioner cannot provide 
general statements and expect U.S. Citizenship and Immigration Services (USCIS) to speculate as to what 
managerial or executive duties the beneficiary may perform as part of his daily routine. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Finally, the AAO notes that some areas of responsibility that appear to have been attributed to the beneficiary 
based on the initial job description were conspicuously absent from the description submitted in response to 
the request for evidence. Such responsibilities include developing the local market and procurement base, 
coordinating international marketing activities, overseeing day-to-day marketing and international trade 
operations, overseeing research and analysis of new product lines, and determining the feasibility of 
marketing new products in Central America. In sum, the initial description appeared to have the beneficiary 
more directly involved in the petitioner's primary operational functions, while the second iteration of the job 
has the beneficiary further removed from such functions. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). When responding to a request for evidence, 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 its associated job responsibilities. The information provided 
by the petitioner in its response to the director's request for further evidence did not clarify or provide more 
specificity to the original duties of the position, but rather added new generic duties to the job description. 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). 
Overall, the petitioner's descriptions of the beneficiary's duties are too vague and inconsistent to provide any 
meaningful insight into what he actually does on a day-to-day basis, and therefore insufficient to establish that 
his actual duties are primarily managerial or executive in nature. For this reason alone, the petition cannot be 
approved. Although the director specifically referenced the lack of a detailed position description in the notice 
of decision, the petitioner does not seek to clarify the beneficiary's duties on appeal. 
Moreover, the petitioner's description of the beneficiary's duties cannot be considered in the abstract. When 
examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the record, 
EAC 07 265 50308 
Page 10 
including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the 
petitioner's business, and any other facts contributing to a complete understanding of a beneficiary's actual 
role in a business. Title 8 C.F.R. 5 214,2(1)(14)(ii)(D) requires the petitioner to submit 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. The regulation at 8 C.F.R. fj 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. 
The petitioner has submitted evidence that it employs one full-time director manager and one part-time 
assistant manager who performs administrative  function^.^ The statutory definition of "managerial capacity" 
allows for both "personnel managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the 
Act, 8 U.S.C. 5 1101(a)(44)(A)(i) and (ii). Personnel managers are required to primarily supervise and 
control the work of other supervisory, professional, or managerial employees. Contrary to the common 
understanding of the word "manager," the statute plainly states that a "first line supervisor is not considered to 
be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the 
employees supervised are professional." Section 10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. 5 2 14.2(1)(1)(ii)(B)(2). 
If a beneficiary directly supervises other employees, the beneficiary must also have the authority to hire and 
fire those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. 5 
2 14.2(1)(1)(ii)(B)(3). 
The petitioner indicates that the beneficiary's direct subordinate is acting as both a supervisor and as a 
function manager of the petitioner's sales and marketing function. However, the petitioner indicates that the 
director manager devotes a total of only 10 percent of his time to "supervise sales work force," and notes that 
the sales workforce is located in Costa Rica. Although the "assistant manager" is placed subordinate to his 
position on the organizational chart, the petitioner has not specifically stated that the director manager 
supervises the assistant manager. An employee will not be considered to be a supervisor simply because of a 
job title, because he or she is placed on an organizational chart in a position superior to another employee, or 
even because he or she supervises daily work activities and assignments. Rather, the employee must be 
shown to possess some significant degree of control or authority over the employment of subordinates. See 
generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (Cited in 
Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11, 2007)). Based on the position 
description submitted for the director manager, he is responsible for performing essentially all of the day-to- 
day operational tasks that need to be performed in the United States office on a day-to-day basis, and is not 
acting primarily as a supervisory capacity for the petitioning company. Based on the petitioner's indication 
that the director manager performs primarily operational tasks associated with providing the petitioner's 
services, it has also failed to establish that he is primarily managing the sales and marketing function. 
2 
 USCIS records show that the director manager, , was granted L-1A classification from 
November 1, 2006 until October 31, 2007 (EAC 07 007 51921). The petitioner's petition to extend 
L-LA status (EAC 07 265 50906) was denied on December 20,2007 and there are no records of a 
motion, appeal, or new petition being filed subsequent to the denial. 
EAC 07 265 50308 
Page 11 
Although the director manager has a baccalaureate degree in marketing, counsel states on appeal that the 
petitioner does not require the holder of the position to have a degree in a specific field of study. In evaluating 
whether the beneficiary manages professional employees, the AAO must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endea~or.~ Therefore, the 
AAO must focus on the level of education required by the position, rather than the degree held by a 
subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner has not established that the beneficiary's subordinate 
performs duties requiring a bachelor's degree in marketing, nor has it established that the assistant manager 
possesses or requires a bachelor's degree. Thus, the petitioner has not shown that the beneficiary's subordinate 
employees are supervisory, professional, or managerial, pursuant to section 101(a)(44)(A)(ii) of the Act. 
On appeal, counsel for the petitioner argues that the beneficiary will manage an essential function of the 
organization by "supervising the overall management for the U.S. and Costa Rican companies." 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. 9 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 description of the duties to be 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. 5 214.2(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. 
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. As 
discussed above, the petitioner's vague and inconsistent position descriptions are insufficient to establish that 
the beneficiary's duties will be primarily managerial, and the petitioner has not articulated a basis for its claim 
that the beneficiary qualifies as a function manager. Simply stating that the beneficiary is responsible for the 
"overall management" of the petitioner and its foreign entity is insufficient. Without documentary evidence 
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
Section 10 l(a)(32) of the Act, 8 U.S.C. 8 1 101 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
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Page 12 
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 10 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(B). 
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-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. Here, the petitioner's claim that 
the beneficiary will be employed in an executive capacity is undermined by its failure to provide a credible, 
consistent description of the beneficiary's actual duties. It cannot be determined based on the evidence of 
record that the petitioner, in its current stage of development, requires the beneficiary to primarily focus on 
the broad goals and policies of the organization. 
Pursuant to section 10 1 (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. 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. 
Furthermore, 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. Sava, 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). 
At the time of filing, the petitioner was a one-year-old company engaged in providing "complete export 
brokerage services, including purchase contracts, shipping, and delivery scheduling in the oil lubricant field." 
The petitioner claims that the beneficiary's subordinate, the director manager, performs essentially all 
operational tasks related to these functions, the assistant manager performs routine administrative and banking 
functions, and the foreign entity's sales staff performs the day-to-day sales and marketing duties. However, 
the petitioner's invoices indicate that the company does not export its products exclusively to the Costa Rican 
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company, and the petitioner has not explained who provides sales and marketing services in other markets. 
Furthermore, given the unresolved discrepancies between the initial description for the beneficiary's position 
and the position submitted in response to the RFE, the petitioner has not submitted persuasive evidence that 
the beneficiary is wholly relieved from participating in the company's marketing, market research, product 
research, purchasing, export and other non-managerial functions. Counsel indicates on appeal that the 
petitioner is in the process of obtaining approval to sell its products in the United States and identifying 
potential markets, but has not indicated who is responsible for duties associated with this expansion in 
operations. Overall, the record does not present a clear overview of the petitioner's business, the daily 
activities it conducts, or the beneficiary's actual duties within the scope of the business at the end of the first 
year in operation. A review of the totality of the record fails to establish that the petitioner has a reasonable 
need for the beneficiary to perform primarily managerial or executive duties at its current stage of 
development. 
Even though the enterprise is in a preliminary stage of organizational development and anticipates additional 
growth, the petitioner is not relieved from meeting the statutory requirements. 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). In the instant matter, the petitioner has not reached the point 
that it can employ the beneficiary in a primarily managerial or executive position. For this reason, 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.