dismissed L-1A Case: Food Distribution

identieing data deleted b 
prevent clearly unwarranted 
kwasiion of personal privsy 
US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of&e ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
File: EAC 08 196 5 1879 
 Office: VERMONT SERVICE CENTER 
 Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(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. ij 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, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Chief, Administrative Appeals Office 
EAC 08 196 51879 
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 AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(15)(L). The petitioner, a Florida corporation, is an importer and 
distributor of specialty foods. It claims to be a subsidiary of Precocinados Corella, S.A., located in Spain. The 
beneficiary was previously granted L-1A classification for one year in order to open a new office in the 
United States and the petitioner now seeks to extend his status for three additional years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would 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 beneficiary 
will be employed in an executive capacity, and suggests that the director erred by applying the statutory 
criteria pertaining to managerial capacity. Counsel further contends that the director misinterpreted the 
submitted evidence, resulting in erroneous conclusions regarding the scope of the petitioner's business and the 
nature of the beneficiary's duties. Counsel submits a brief and additional documentary evidence in support of 
the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 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. 
EAC08 19651879 
Page 3 
(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 himther to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The 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. Counsel objects to the 
director's application of the statutory definition of "managerial capacity" to the facts of this case and contends 
that the petitioner seeks to employ the beneficiary solely in an executive capacity. 
Section 10 l(a)(44)(B) of the Act, 8 U.S.C. €j 1 10 l(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. 
EAC 08 196 51879 
Page 4 
The petitioner filed the nonimmigrant visa petition on July 8, 2008. The petitioner indicated on Form 1-129 that 
the U.S. company has two employees. In a letter dated July 2, 2008, the petitioner described the beneficiary's 
duties as general manager as the following: 
In the past year the beneficiary has been responsible for: directing the management of the US 
company, establishing its goals and policies and exercising wide latitude in decision making 
while receiving only general guidance and supervision from the parent company in Spain. 
In a typical week [the beneficiary's] duties include the following: processing funds requests to 
the parent office in Spain; monitoring Cash flow, invoicing and accounts receivable and payable; 
Reviewing profit and loss statements for variances from budgeted amounts; Reviewing write 
offs, aging reports, earningslextract reports, receivables, and monthly bad debt for accuracy; 
communicating and finalizing weekly closings with (certified public 
accountants); communicating with home office in Spain every Monday thru video conference 
(Skype) in order to keep home office updated on weekly operations, specifically, payment 
issues; overseeing procedures to insure FederaVState laws are being followed; completing and 
submitting to home office in Spain reports form [sic] Peachtree Account all while ensuring 
adaptability to the Spaniard accounting system; ensuring US office is in compliance with goals 
set; scheduling and approving weekly tastings/product demos for Mi Conserva Brand in Publix 
Supermarkets (65 Publix in South Florida Area) and 6 Sedanos supermarkets; reviewing weekly 
invoices and ensuring prompt payment; overseeing warehousinglreceiving process; reviewing 
weekly inventory reports in order to ensure balanced product supply; ensuring inbound 
shipments from home office in Spain are received in a timely fashion; overseeing security 
measures in order to minimize shrinkage and breakage of products; develop and execute sales 
program and ensure compliance with home offices [sic] requirements; ensuring development of 
network Independent Distributors in Florida, Georgia, New York, New Jersey, Massachusetts, 
Pennsylvania, Rhode Island and Illinois. 
In support of the petition, the petitioner submitted an organizational chart for the U.S. company, which depicts the 
beneficiary as general manager supervising 
 Mr. 
 job title is '' and, 
according to the information on the chart, he is responsible for "warehousing (shipping and receiving)," and 
"tastinglsampling Publix supermarkets, The petitioner also indicated that the beneficiary 
supervises " " and a general assistant located in 
Spain. 
The petitioner submitted copies of three IRS Forms 1099, Miscellaneous Income, issued by the U.S. company in 
2007. The petitioner paid $7,718 in nonemployee compensation to its CPA, $6,410 in nonemployee 
compensation to and $44,3 12 in nonemployee compensation to the beneficiary. The petitioner also 
submitted its income statement for the first five months of 2008, which indicates that the company paid no 
salaries, wages or subcontractor expenses. The petitioner reported expenses of $4,619 for "casual labor." 
The director found the initial evidence insufficient to establish that the beneficiary would be employed in a 
primarily managerial or executive capacity. Accordingly, on August 25, 2008, the director issued a request for 
EAC 08 196 51879 
Page 5 
additional evidence in which he instructed the petitioner to submit: (1) a comprehensive description of the 
beneficiary's proposed duties; (2) a list of the U.S. company's employees which includes each employee's name, 
position title, complete position description, and breakdown of the number of hours devoted to each of the 
employee's job duties on a weekly basis; and (3) additional evidence showing the management and personnel 
structure of the U.S. company, including the number of subordinate supervisors managed by the beneficiary, the 
amount of time the beneficiary allots to executive/managerial duties, and the degree of discretionary authority the 
beneficiary has over the company's day-to-day operations. 
In response to the RFE, the petitioner submitted the following position description for the beneficiary's position: 
1. Processing funds requests to the parent office in Spain; (2hrsIwk); 
2. Reviewing cash flow, invoicing and accounts receivable and payable; (3hrslwk); 
3. Reviewing profit and loss statements for variances from budgeted amounts; (2hrsIwk) 
4. Reviewing write offs, aging reports, earningslextract reports, receivables, and monthly bad 
debt for accuracv: (2 hrslwk) 
\ 
5. Communicating and finalizing weekly closings with certified public 
accountants); (2 hrslwk) 
6. Communicating with home office in Spain every Monday thru video conference (Skype) in 
order to keep home office updated on weekly operations, specifically payment issues; (4 
hrslwk) 
7. Overseeing procedures to insure FederaVState laws are being followed; (1 hrlwk) 
8. Submitting to home office in Spain reports form [sic] Peachtree Account all while ensuring 
adaptability to the Spaniard accounting system; (3hrslwk) 
9. Ensuring US office is in compliance with weekly goals set; (2hrslwk) 
10. Approving weekly tastingslproduct demos for Mi Conserva Brand in Publix [and Sedanos] 
Supermarkets. . . (2 hrslwk) 
1 1. Reviewing weekly invoices and prompt payment; (2hrslwk) 
12. Overseeing warehousing/receiving process; (2hrsIwk) 
13. Reviewing weekly inventory reports in order to ensure balanced product supply; (4 hrslwk) 
14. Ensuring inbound shipments from home office in Spain are received in a timely fashion; 
( 1 hrlwk) 
15. Overseeing security measures in order to minimize shrinkage and breakage of products; 
(1 hrlwk) 
16. Developing and executing sales program and ensuring compliance with Spanish home office 
requirements; (3 hrslwk) 
17. Ensuring development of network Independent Distributors in Florida, Georgia, New York, 
New Jersey, Massachusetts, Pennsylvania, Rhode Island and Illinois. (4hrlwk) 
The petitioner further stated that "out of the 17 duties the beneficiary performs on a weekly basis 13 of them are 
executive in nature while only 4 are non executive in nature.' The petitioner indicated that 76 percent of the 
beneficiary's time is spent on executive duties, while 24% is spent on non-executive duties. 
1 
 The petitioner listed the beneficiary's 17 job duties and identified each as "executive" or "non-executive." 
The petitioner indicated that all of the listed duties are executive with the exception of ## 1, 12, 14 and 15. 
EAC08 19651879 
Page 6 
The petitioner re-submitted its organizational chart, on which it revised the beneficiary's subordinate's title to 
"assistant manager." The petitioner stated that the assistant manager performs the following duties: 
1. 
 Preparing weekly cash flow, invoicing and accounts receivable and payable reports; (3 
hrslwk) 
2. 
 Preparing profit and loss statements (2hrslwk) 
3. 
 Preparing write offs, aging reports, earningslextract reports, receivables, and monthly bad 
debt re~orts: (3hrslwk) 
A ,\ 
4. 
 Preparing weekly closings with (certified public accountants); 
(2hrslwk) 
5. 
 Preparing Peachtree reports for General Manager in order to submit to home office in Spain 
(2 hrslwk) 
6. 
 Scheduling and preparing weekly tastingslproduct demos for Mi Conserva Brand in Publix 
[and Sedanos] Supermarkets. . . (5 hrslwk) 
7. 
 Preparing weekly invoices; (3 hrslwk) 
8. 
 Preparing weekly inventory reports in order to ensure balanced product supply; (5 hrslwk) 
9. 
 Preparing inbound inventory shipment reports from home office. 
10. Preparing outbound shipments to supermarket chains; (5 hrslwk) 
1 1. Receiving incoming callslmail from clientslpotential clientele. (10 hrslwk) 
The petitioner emphasized that, since the beneficiary holds an executive position, "it is not necessary for him to 
supervise subordinate superiors." The petitioner nevertheless indicated that it intends to hire a Distribution 
Warehouse Manager and an Administrative Assistant in the upcoming fiscal year, and provided descriptions for 
both proposed positions. 
The director denied the petition on October 30, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. In 
denying the petition, the director found that the beneficiary would be performing a mix of manageriallexecutive 
and non-qualifying duties, and that the evidence was insufficient to establish that the beneficiary's primary duties 
would in fact be managerial or executive. Rather, the director determined that, with only one subordinate 
employee and no administrative staff, the beneficiary would perform many of the day-to-day non-managerial 
duties of the company himself. The director specifically noted that the petitioner submitted photographs which 
appear to depict the beneficiary giving food tastings in various locations. 
On appeal, counsel for the petitioner asserts that the extension of the beneficiary's L-1A status was requested 
based on his employment in an executive capacity, not in a managerial capacity. Counsel asserts that there is no 
need for the general manager, as an executive, to control or supervise any other employees. Nevertheless, counsel 
claims that the assistant manager prepareslperforms "most of the duties of the U.S. entity," including those 
normally performed by a secretary or administrative assistant, and the beneficiary only supervises and reviews the 
work the assistant manager performs. Counsel further emphasizes that, while the petitioner's business has not 
grown at the rate initially anticipated, the beneficiary's position comprises executive duties requiring 76 percent of 
his time. 
EAC 08 196 51879 
Page 7 
Counsel also objects to the director's finding that the petitioner submitted photographs of the beneficing giving 
food tastings in various locations. Counsel asserts that the photographs actually depict the beneficiary at the U.S. 
offices of the company at a tasting given to potential franchisees. Counsel states that the potential customers are 
comprised mostly of executives from supermarket chains that are interested in carrying the petitioner's line of 
products. Counsel further states that the tastings that are held in retail locations are contracted out to a sampling 
and tasting company called "Sample It." The petitioner submits copies of invoices and supermarket demo reports 
from Sample It in support of the appeal. 
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. 
When examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the proposed job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's 
description of the job duties must clearly describe the duties that will be performed by the beneficiary and 
indicate whether such duties will be either in an executive or managerial capacity. Id. The AAO will then 
consider this information in light of 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. 
In addition, 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). 
The AAO acknowledges that the petitioner has submitted a lengthy description of the beneficiary's duties and 
indicated the number of hours the beneficiary will devote to such duties on a weekly basis. However, the 
AAO does not concur with the petitioner's assertion that the beneficiary's duties will be primarily executive in 
nature. Moreover, the AAO notes that the petitioner has repeatedly submitted the same list of 17 duties for 
the beneficiary even after the director reviewed the duties, found them to be insufficient, and requested a 
"comprehensive description" of the position. 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). As discussed further below, 
some of the duties attributed to the beneficiary, particularly those related to the sales and marketing functions, 
remain inadequately defined. 
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 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 101(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 
managerial 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 
EAC 08 196 51879 
Page 8 
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 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 petitioner indicates that the beneficiary devotes approximately 20 hours per week to reviewing and 
reporting on the company's financial activities. Specifically, his duties include processing funds requests, 
reviewing cash flow, invoicing and accounts payable and receivable, and other financial reports, 
communicating with the company's C.P.A., keeping the parent company updated with regard to payment 
issues, submitting accounting reports to the home office, reviewing invoices and ensuring prompt payment of 
invoices. The AAO does not doubt that the beneficiary exercises some discretion over the petitioner's day-to- 
day finances and is responsible for monitoring such activities; however, the petitioner has not established that 
his duties in this regard rise to the level of an employee acting in an executive capacity. The petitioner has 
indicated that the beneficiary has the authority to determine payment terms for customers, but there is no 
evidence that the beneficiary is primarily concerned with the company's broad goals and policies with respect 
to the financial function. 
The petitioner further indicates that the beneficiary devotes three hours on a weekly basis to "developing and 
executing" the petitioner's sales program. The beneficiary is also responsible for "ensuring development of 
[a] network of independent distributors," and devotes four hours per week to this function. The petitioner does 
not employ a sales or marketing staff or claim that the beneficiary's sole subordinate, the assistant manager, 
performs sales or marketing tasks. Absent additional explanation regarding the specific tasks the beneficiary 
performs, the AAO cannot distinguish "developing and executing a sales program," and "ensuring 
development" of a distribution network from the routine sales and marketing tasks inherent to operating a 
wholesale distribution company. 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 41 (2d. Cir. 1990). Given the absence of any subordinate sales or marketing staff, the AAO finds it 
reasonable to question whether the beneficiary devotes only seven hours to such tasks on a weekly basis. 
Regardless, the AAO cannot affirmatively determine that the beneficiary's duties associated with 
"developing" the petitioner's sales program and distribution network are executive in nature. 
The petitioner concedes that the beneficiary's duties associated with overseeing the warehousing/receiving 
process, ensuring timely receipt of inbound shipments from Spain, and overseeing security measures are non- 
executive in nature, but indicates that he devotes only four hours per week to such duties. The petitioner 
occupies approximately 5,000 square feet of warehouse space, and employs no dedicated warehouse, import 
or distribution staff. While the beneficiary's sole subordinate is claimed to devote a total of approximately 10 
hours per week to preparing inventory reports and preparing outbound shipments, the petitioner has not 
adequately addressed who is currently responsible for the day-to-day activities associated with the warehouse 
and distribution functions. In addition, while the petitioner concedes that the beneficiary performs non- 
qualifying duties associated with warehouse/receiving, security, quality control and receipt of inbound 
shipments, these responsibilities are poorly defined and it is difficult to discern whether such non-executive 
tasks would reasonably require the beneficiary's attention for only the stated four hours per week. 
EAC 08 196 51879 
Page 9 
Overall, the petitioner's description of the beneficiary's duties is insufficient to establish that the beneficiary 
will be performing primarily executive duties under the extended petition. While some of the beneficiary's 
tasks might be qualifying, the petitioner has the burden of establishing that a majority of the beneficiary's time 
on a day-to-day basis would be allocated to the claimed executive functions. This determination cannot be 
based on the beneficiary's job title, the fact that the is the senior member of the petitioner's two-person staff, 
or a job description that is only partly comprised of specific daily tasks. The actual duties themselves reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
As noted above, when examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and 
Immigration Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's 
duties and those of his or her subordinate employees, the nature and scope of the petitioner's business, and any 
other factors contributing to a complete understanding of a beneficiary's actual role in a business. 
Here, the petitioner's claim that the beneficiary is employed in a primarily executive capacity is predicated on 
counsel's assertions that the beneficiary's sole subordinate employee, the "assistant manager," performs 
substantially all of the non-qualifying duties associated with operating the petitioner's import and wholesale 
distribution business. 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 tj 101(a)(44)(C) of the Act, 8 U.S.C. tj 1 101(a)(44)(C). However, 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 3. Supp. 2d 7, 15 (D.D.C. 2001). 
Moreover, in the present matter, 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. tj 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. tj 214.2(1)(3)(v)(C) allows the "new 
office" operation one year within the date of approval of the petition to support an executive or managerial 
position. There is no provision in USCIS regulations that allows for an extension of this one-year period. If 
the business does not have sufficient staffing after one year to relieve the beneficiary from primarily 
performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. 
At the time of filing, the petitioner was a two-year-old import and distribution company, which employed the 
beneficiary as its general manager and an assistant manager who is paid as an independent contractor. The 
petitioner also utilizes the services of an accountant and provided evidence that it outsources product 
demonstrations at the retail level to an external service provider. While the petitioner indicates that the 
EAC 08 196 51879 
Page 10 
assistant manager issues invoices, prepares all inventory and financial reports, prepares products for shipment 
to supermarkets, and essentially performs the role of a secretary or administrative assistant, the AAO is not 
persuaded that these tasks comprise the majority of the day-to-day non-executive duties associated with 
operating the petitioner's business, or that one person could feasibly perform all of these functions on a day- 
to-day basis. One of the major objectives of the company is to continue to widen its distribution network, 
and, as discussed above, the beneficiary himself appears to be solely responsible for performing all sales, 
promotional and marketing tasks that accompany the ongoing launch of the company's product line in the 
United States. Most importantly, in order to reach a conclusion that the beneficiary is performing primarily 
executive duties, the petitioner would have to demonstrate how the assistant manager is simultaneously able 
to perform all non-qualifying functions associated with operating the business, including importing, 
warehousing, distribution, day-to-day administration and record-keeping, bookkeeping, sales, marketing, and 
so on. The petitioner indicates that the assistant manager allocates 15 hours per week to financial reporting 
alone, and an additional 5 hours per week preparing weekly tastings and product demonstrations at Florida 
supermarkets. The petitioner's claim that the beneficiary's subordinate is able to single-handedly operate the 
business on a day-to-day basis with minimal involvement from the beneficiary is simply not plausible. 
Based on the petitioner's representations, it does not appear that the reasonable needs of the petitioning 
company might plausibly be met by the services of the beneficiary as general manager who performs 
primarily executive duties and one subordinate employee. Regardless, the reasonable needs of the petitioner 
serve only as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or 
executive duties. The petitioner must still establish that the beneficiary is to be employed in the United States 
in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As 
discussed above, the petitioner has not established this essential element of eligibility. 
Even though the enterprise is in a preliminary stage of organizational development and anticipates additional 
growth in the coming year, the petitioner is not relieved from meeting the regulatory requirement that the 
beneficiary be relieved from performing primarily non-qualifying duties at the time it petitions for an 
extension of its new office petition. 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 
predominantly 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.