dismissed L-1A Case: Export

ident~fying data deleted to 
prevent clearly un.warr~fhted 
invasion ~f person.al privacy 
PUBLIC COpy 
DATE: Office: CALIFORNIA SERVICE CENTER 
DEC 1 6 2011 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.c. § 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's employment as a 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 11 01 (a)(15)(L). The petitioner, an Arizona limited liability company, states that it 
P"'''''''UllL..HJl6 in the export of U. S. products to the Middle East. It claims to be an affiliate 
located in Lebanon. The beneficiary was previously granted L-l A status for a 
period of one year, from August 2008 to August 2009, and the petitioner now seeks to extend his status for a 
period of two years so that he may continue to serve in the position of president. 
The director denied the petition on two independent and alternative grounds, concluding that the petitioner 
failed to establish: (1) that the petitioner has been doing business in the United States in accordance with the 
regulation; and (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 for the petitioner asserts that the U.S. entity 
is doing business and that the beneficiary is serving in an executive capacity. 
I. The Law 
To establish eligibility for the L-l 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. § 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)(I)(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 himlher to perform the intended 
· , 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(l)(l4)(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 (1)(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 pertinent regulations at 8 C.F.R. § 214.2(l)(l)(ii) define the term "qualifying organization" as follows: 
(G) Qualifying organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee [.] 
One of the issues addressed by the director is whether the petitioner established that it is doing business in the 
United States, as that term is defined at 8 C.F.R. § 214.2(l)(l)(ii)(H): 
Doing business means the regular, systematic and continuous provision of goods and/or 
services by a qualifying organization and does not include them mere presence of an agent or 
office of the qualifying organization in the United States and abroad. 
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: 
Page 4 
(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. § 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 from higher-level executives, the board 
of directors, or stockholders of the organization. 
II. The Issues on Appeal 
A. Doing Business 
The first issue to be addressed is whether the petitioner established that the u.S. company is doing business in 
the United States in accordance with the regulations cited above. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on July 15,2009. The petitioner is 
an Arizona limited liability company established in August 2007; it indicates that it is engaged in the export 
of U.S. products to the Middle East. The petitioner's initial supporting evidence included: (1) a letter of 
support from the petitioner; (2) a business plan for the petitioner; (3) the office lease for the petitioner; (4) 
financial and wire transfer documents for the petitioner; (5) a contract with for the 
manufacture of an energy drink that will be exported to the Middle East along with evidence payment for 
said contract; (6) State of Arizona Certificate of Trademark for a proprietary brand of cigarettes that will be 
Page 5 
exported to the Middle East along with artwork for the brand and information on machinery to manufacture 
said cigarettes; (7) State of Arizona Certificate of Trademark for a proprietary brand of energy drinks that will 
be exported to the Middle East along with contracted artwork for the brand, evidence of payment for said 
artwork, and a contract for the materials to manufacture the energy drink; and (8) freight quotes from the u.S. 
to the Middle East for the energy drink. 
The director issued a request for additional evidence ("RFE") on July 23, 2009. The director instructed the 
petitioner to submit copies of its 2008 federal income tax returns, along with all schedules and statements, and 
copies of any current valid business licenses for the city, county, state, etc. 
In response to the RFE, the petitioner submitted a copy of its 2008 IRS Form 1065, U.S. Return of 
Partnership Income. The petitioner's IRS Form 1065 for 2008 indicates that the company reported a net 
income loss of $164,041 for the year. The company's deductions included expenses for accounting, bank 
charges, marketing consultants, office expenses, telephone, travel, and other normal business expenses. 
The petitioner also provided a copy of a Business, Occupational, and Professional 
License for the petitioner issued on December 29, 2008. 
The director denied the petition on August 13, 2009, concluding that the petitioner failed to establish that the 
U.S. company is doing business as defined in the regulations. The director concluded that the petitioning 
company does not appear to be doing business because no sales were made for the entire year. The director 
also pointed out that the petitioner paid only $23,070 in salaries and wages for 2008. The AAO notes that the 
beneficiary'S initial petition was approved in August 2008 and he (and additional staff) did not commence 
work for the petitioner until December 2008. 
On appeal, counsel asserts that the petitioner has been doing business by creating original products, protecting 
them (trademarks), producing them, and shipping them. Counsel states: 
The business done included commissioning the production of a formal feasibility study; and 
the contracting and fulfillment of the contracts for creating and patenting of the_ 
and sourcing and contracting with a US manufacturer for the 
energy Drink; and putting in place the licenses, names, and other registration necessary to 
commence production, sales and shipment of the first protected product to be exported to the 
Middle East. This took one year as well it should. The product is now being manufactured in 
~y the contracted manufacturer. 
Counsel also submits a Certificate of Free Sale from the State of New Jersey for the petitioner's manufacture 
of an energy drink and multiple invoices and shipping receipts for the sale of the energy drink in the Middle 
East. 
Upon review, the evidence in the record persuasively establishes that the petitioner is engaged in the regular, 
systematic and continuous provision of goods and/or services in the United States. While the petitioner did 
not begin selling its products until 2009, the evidence shows that the petitioner developed two proprietary 
products, contracted the manufacture of said products, and engaged in the sale of those products in the Middle 
East. The petitioner only needs to establish that its provision of goods or services is regular, systematic and 
continuous. The evidence is sufficient to meet the petitioner's burden. 
Page 6 
Accordingly, the AAO will withdraw the director's determination with respect to this issue as the petitioner 
has overcome this ground for denial. 
B. Employment in a Managerial or Executive Capacity 
Although the director's determination with respect to the above ground will be withdrawn, the AAO finds 
insufficient evidence in the record to establish that the beneficiary would be employed in the United States in 
a qualifying managerial or executive capacity. See 8 C.F.R. § 214.2(l)(3)(ii). 
The second issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner stated on the Form 1-129 that the beneficiary will be employed by the U.S. entity as president. 
The petitioner indicated that it is operating a business specializing in the export of U.S. products to the Middle 
East with two employees. 
The petitioner stated that the beneficiary performs the following duties: 
As President in L-l A status, [the beneficiary] will oversee management, establish goals 
and policies for the U.S. company, exercise wide latitude of discretion in decision making 
matters, and receive supervision only from the Board of Directors. As more staff is 
needed [the beneficiary] will also be responsible for approving the hiring and firing of 
personnel. He will be responsible for maintaining ties with the affiliate company, 
developing relationships with various prospective clients and review of all business 
contracts. 
His specific job duties include: 
• Review all business trade contracts for quality and ensure exportation of U.S. 
products to the Middle East 
• Manage new corporate customers by studying business opportunities related to the 
mission of [the petitioner] in the U.S. 
• Reviews all business plans and feasibility studies 
• Reviews all business financing contracts 
• Control and manage the time table and cash flow of business opportunities and make 
adjustments as needed 
The petitioner did not submit any additional information describing the duties of the beneficiary on a day-to­
day basis. The petitioner made the following statements about the beneficiary's subordinates' job duties: 
Vice President_ is in charge of the day to day operations of the company, 
hiring and firing of personnel, and is in charge of the real estate development 
construction projects. This in turn frees [the beneficiary] for higher level executive 
duties. [The petitioner] also employs as Commercial Manager in 
charge of executing the decisions of the President in matters related to commercial issues 
and following up with U.S. corporations for export to the Middle East and organizing 
Page 7 
shipping schedules. The company currently has a position open for a receptionist and the 
company is looking for someone to fill that position. 
The petitioner submitted an organizational chart for the U.S. company listing the beneficiary as President, 
"VP and Real Estate Responsible", _ as Commercial Manager, and one vacant 
subordinate position titled Receptionist. 
The director issued a request for additional evidence ("RFE") on July 23, 2009, instructing the petitioner to 
submit, inter alia, the following: (1) the total number of employees at the U.S. location where the beneficiary 
will be employed; (2) a copy of the U.S. company's organizational chart clearly identifying the beneficiary's 
position and the employees he supervises by name and job title, including a brief description of job duties, 
educational level, annual salaries/wages and immigration status for all employees under the beneficiary's 
supervision; and (3) a more detailed description of the beneficiary's duties in the U.S., specifically indicating 
the percentage of time the beneficiary spends on each of the listed duties. 
In response to the RFE, the petitioner submitted a new organizational chart for the U.S. company explaining 
that the former "VP and Real Estate Responsible," was no employed by the petitioner. 
The new organizational chart lists the beneficiary as President, as Vice President/Commercial 
and Operations Manager, Receptionist/Secretary. 
The petitioner also submitted a description of the subordinate's job duties as follows: 
Vice President/Commercial Operations Manager -
experienced in office management in the small business 
Real Estate and Brokerage. 
IS 
elopment area particularly in 
Her educational background includes: Real Estate School, Computer Classes, Accounting 
Classes and Management Education Classes. 
As Vice President/Commercial Operations Manager her detailed job duties include: 
Overseeing all of the day to day production, accounting and also assists [the beneficiary] with 
all the work it takes to run a company. 
_earns a yearly salary of $42,000 
Receptionist/Secretary - a U.S. citizen is an experienced 
receptionist/secretary with five (5) years of experience. Her educational background 
includes: AA degree in advertising design. 
As Receptionist/Secretary her job duties include: answering phones, design publications, 
general office duties and an assistant to [the beneficiary] and_. 
is paid $11.00 per hour for her services. 
The petitioner then submitted a list of the beneficiary's detailed job duties: 
As President [the beneficiary's] job duties are as follows: 
Review all business trade contracts for quality and ensure exportation of U.S. products to the 
Middle East - [the beneficiary] reviews specification of products, prices, international 
Page 8 
regulations of commerce. [The beneficiary's] ultimate goal is to have his U.S. company 
benefit from his entire decision making. 
Percentage of time spent 80% 
Manage new corporate customers by studying business opportunities related to the mission of 
[the petitioner] in the U.S. - [the beneficiary] researches the backgrounds of many companies 
to see if there are any advantages to his U.S. Company. 
Percentage of time spent 5% 
Reviews all business plans and feasibility studies - [the beneficiary] reviews all of the 
business plans of the companies he is interested in working with. 
Percentage of time spent 5% 
Reviews all business financing contracts - [the beneficiary] approves all of the financing 
since he is the principal and main shareholder. 
Percentage of time spent 5% 
Control and manage the time table and cash flow of business opportumtIes and make 
adjustment as needed - [the beneficiary] is in charge of all of the financial decisions of the 
company and is always up to date on the cash flow of the company. 
Percentage of time spent 5% 
The director denied the petition on August 13, 2009, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive position under the extended petition. 
In support of the appeal, counsel submits a brief in which she asserts that the beneficiary serves and will 
continue to serve in an executive capacity. Counsel specifically states: 
The specific duties performed by the President as described in his job description and his 
letter were directed toward contracting the creation, protection, sale and production of that 
product for shipment throughout the Middle East. This plan is feasible, as he has concluded 
his studies and has the funding and contacts through his lengthy business history to make it 
work. 
[The beneficiary] was not flipping burgers, typing letters, making sales calls, answering the 
phones or stuffing envelopes. He was back and forth from the U.S. to Lebanon for the first 
year, and is currently in Lebanon sourcing distributors for the energy drink. He is an 
executive in every sense of the word. 
All routine commercial and internal operations have been and are now being performed on 
a day to day (according to her, 24 hour basis) by U.S. Citizen until production 
of the sports drink increases in volume, justifying the hire of more commercial and operations 
employees to assist her. Note that it is name which appears on such 
documents as the freight quotations, art approval forms, etc. She will be responsible for the 
interview and hire of employees, with the authority vested in her by [the beneficiary]. The 
day to day ministerial projects have been undertaken by the US citizen Receptionist/Secretary 
Page 9 
Also starting September 8, 2009 U.S. citizen 
commence employment with the company and she will be ass 
beneficiary] and _Her job duties will consist of promoting the company's new product 
by contacting distributors outside of the U.S. Also will perform day to day activities in the 
office, make and answer calls regarding the company's products and introduce new products 
that the company is working on. _will work along side _ and assist with 
current projects. 
petltlonler submits a new organizational chart for the U.S. company as President, 
as Vice President and Commercial Department Manager, Assistant 
Commercial Department, as Administrative Assistant, one vacant subordinate 
position titled Sales Representative United States, one vacant subordinate position titled Sales Representative 
Europe, and one vacant subordinate position titled Sales Representative Middle East and Africa. 
Discussion 
Upon review, and for the reasons stated herein, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
The one-year "new office" provision is an accommodation for newly established enterprises, provided for by 
USCIS regulation, that allows for a more lenient treatment of managers or executives that are entering the 
United States to open a new office. When a new business is first established and commences operations, the 
regulations recognize that a designated manager or executive responsible for setting up operations will be 
engaged in a variety of low-level activities not normally performed by employees at the executive or 
managerial level and that often the full range of managerial responsibility cannot be performed in that first 
year. In an accommodation that is more lenient than the strict language of the statute, the "new office" 
regulations allow a newly established petitioner one year to develop to a point that it can support the 
employment of an alien in a primarily managerial or executive position. 
In creating the "new office" accommodation, the legacy Immigration and Naturalization Service (INS) 
recognized that the proposed definitions of manager and executive created an "anomaly" with respect to the 
opening of new offices in the United States since "foreign companies will be unable to transfer key personnel 
to start-up operations if the transferees cannot qualify under the managerial or executive definition." 52 Ped. 
Reg. at 5740. The INS recognized that "small investors frequently find it necessary to become involved in 
operational activities" during a company's startup and that, "business entities just starting up seldom have a 
large staff." Id. Despite the fact that an alien engaged in the startup of a new office may not be "primarily" 
employed in a managerial or executive capacity, as then required by regulation and later by statute, the INS 
amended the final regulations to allow for L classification of persons who are coming to the United States to 
open a new office as long as "it can be expected ... that the new office will, within one year, support a 
managerial or executive position." Id. 
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is prepared to commence doing business immediately upon approval so that it will support 
a manager or executive within the one-year timeframe. See generally, 8 c.P.R. § 214.2(l)(3)(v). At the time 
of filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired 
sufficient physical premises to house the new office and that it will support the beneficiary in a managerial or 
Page 10 
executive position within one year of approval. Specifically, the petitioner must describe the nature of its 
business, its proposed organizational structure and financial goals, and submit evidence to show that it has the 
financial ability to remunerate the beneficiary and commence doing business in the United States. Id. After 
one year, USCIS will extend the validity of the new office petition only if the entity demonstrates that it has 
been doing business in a regular, systematic, and continuous manner "for the previous year." 8 C.F.R. § 
214.2(I)(14)(ii)(B). There is no provision in USCIS regulations that allows a petitioning corporation 
additional petitions under the "new office" regulatory accommodation for managers and executives. If the 
business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an extension 
of the prior approved L-l petition. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
in either an executive or a managerial capacity. Id. Beyond the required description of the job duties, U.S. 
Citizenship and Immigration Services (USCIS) reviews the totality of the record when examining the claimed 
managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, the 
duties of the beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary 
from performing operational duties, the nature of the petitioner's business, and any other factors that will 
contribute to a complete understanding of a beneficiary's actual duties and role in a business. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. 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. § 214.2(l)(l4)(ii)(D). The regulation at 8 C.F.R. § 
214.2(l)(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, or is otherwise not sufficiently 
operational, the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has 
not reached the point that it can employ the beneficiary in a primarily managerial or executive position. 
The AAO does not doubt that the beneficiary will have the appropriate level of authority over the petitioner's 
business as its owner and president. However, 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 time on day-to-day operational functions. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). The fact that 
the beneficiary owns and manages a business does not necessarily establish eligibility for classification as an 
intracompany transferee in a managerial or executive capacity within the meaning of sections 101(a)(l5)(L) 
of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987) (noting that section 101(a)(l5)(L) of the Act does 
not include any and every type of "manager" or "executive"). 
The petitioner and counsel provided several statements on the beneficiary's duties. In the percentage 
breakdown of the beneficiary's duties, the petitioner describes the beneficiary's duties in very broad terms, 
noting he will "[r]eview all business trade contracts for quality and exportation of U.S. products to the Middle 
East - 80%," "[m]anage new corporate customers by studying business opportunities related to the mission of 
[the petitioner] in the U.S. - 5%," "[r]eviews all business plans and feasibility studies - 5%," "[r]eviews all 
business financing contracts - 5%," and "[c]ontrol and manage the time table and cash flow of business 
opportunities and make adjustment as needed - 5%." The petitioner did not provide sufficient detail for each 
of the duties indicated above, specifically the one duty that the beneficiary spends 80% of his time 
performing. 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), a.fJ'd, 905 F.2d 41 (2d. 
Cir. 1990). The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.fJ'd, 905 F.2d 41 (2d. Cir. 1990). 
In the initial filing of the petition, the petitioner described the beneficiary's job duties by stating, "[a]s 
President ... [the beneficiary] will oversee management, establish goals and policies for the U.S. company, 
exercise wide latitude of discretion in decision making matters, and receive supervision only from the Board 
of Directors." These duties merely paraphrase the statutory definition of executive capacity. See section 
101(a)(44)(B) of the Act. Conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden 
of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.fJ'd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily" 
employed in a managerial or executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) 
of the Act, 8 U.S.C. § 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who 
allocates 51 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 time on non-qualifying duties. 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'r. 1988). 
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 endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not 
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. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 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. 
The petitioner's evidence must substantiate that the duties of the beneficiary and his proposed subordinates 
correspond to their placement in the organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or managerial position. While the petitioner has submitted a proposed 
Page 12 
organizational chart on appeal depicting two tiers of proposed managerial employees supervising a staff of 
one assistant commercial department, administrative assistant, and three potential sales representatives, the 
petitioner has not shown how the subordinate employees would free him from non-qualifying operational 
duties. The petitioner specifically stated that the Vice President/Commercial Operations Manager would 
"[ 0 ]verse all of the day to day production, accounting and also assist [the beneficiary] with all the work it 
takes to run a company." Such a statement is not sufficient to explain the non-qualifying job duties that the 
subordinate is freeing the beneficiary from performing. The petitioner has not provided credible evidence of a 
proposed organizational structure that would be sufficient to elevate the beneficiary to a supervisory position 
that is higher than a first-line supervisor of non-professional employees. 
The three organizational charts submitted by the petitioner are relatively consistent. The organizational chart 
submitted on appeal, however, lists one additional employee not previously employed at the time of filing the 
petition and three pending hires. 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 oj 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter oj Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. See Matter ojIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
The AAO further notes that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). In reviewing the relevance of the number of 
employees a petitioner has, however, 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 1313, 1316 (9th Cir. 2006) 
(citing with approval Republic oj 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)). 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). 
While performing non-qualifying tasks necessary to produce a product or service will not automatically 
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner 
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive 
duties. Section 1 01(a)( 44) of the Act. Whether the beneficiary is an "activity" or "function" manager turns in 
part on whether the petitioner has sustained its burden of proving that his duties are "primarily" managerial. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) ofthe Act, 8 U.S.C. § 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 
101(a)(44)(A)(iv) of the Act; 8 C.F.R. § 214.2(I)(1)(ii)(B)(2). 
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The petitioner has not established, in the alternative, that the beneficiary is employed primarily as a "function 
manager." 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, 8 U.S.C. § 1101(a)(44)(A)(ii). If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must 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. In addition, the petitioner must 
provide a comprehensive and detailed description of the beneficiary'S daily duties demonstrating that the 
beneficiary manages the function rather than performs the duties relating to the function. An employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter 0/ Church Scientology International, 19 I&N Dec. 
593, 604 (Comm. 1988). 
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, 8 U.S.C. § 1101(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-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. 
The beneficiary in this matter has not been shown to be employed in a primarily managerial or executive 
capacity under the extended petition. The AAO will uphold the director's determination that the petitioner has 
not grown to the point where the beneficiary is primarily engaged in managerial or executive duties. 
Accordingly, the appeal will be dismissed. 
III. Qualifying Relationship 
Beyond the decision of the director, the record does not definitively establish that a qualifying relationship 
exists between the petitioning entity and a foreign entity pursuant to 8 C.F.R. § 214.2(1)(1 )(ii)(G). The 
regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter o/Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter o/Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter a/Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
a/Church Scientology International, 19 I&N Dec. at 595. 
The petitioner submitted two stock certificates with the filing of the petition: one stock certificate numbered 
• stating that the beneficiary owns 70 units of the U.S. company, and a second stock certificate numbered. 
stating that_ owns 30 units of the U.S. company. On July 21, 2009, counsel for the petitioner 
· . 
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the petition and stating, "[ t ]he current ownership of the petitioner is 100% by [the 
beneficiary]. architect, is no longer involved in ownership or employment by [the petitioner]." 
A stock ledger or new stock certificates were not submitted as evidence of ownership of the petitioning entity. 
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). 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity, 
particularly if there is evidence that multiple stock certificates have been issued. The corporate stock 
certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder 
meetings must also be examined to determine the total number of shares issued, the exact number issued to 
the shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all relevant documents, 
USCIS is unable to determine the elements of ownership and control. 
Based on the insufficiency of the information furnished, it cannot be concluded that the petitioner has 
adequately demonstrated that a qualifying relationship exists between the petitioner and the foreign entity. 
For this additional reason, the petition may not be approved. 
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. u.s. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
IV. Conclusion 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.