dismissed L-1A Case: Food Import/Export

(b)(6)
MATTER OF R.P.B-R- LTD. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 23,2016 
PETITION: FORM I-129, PETITION FOR 
A NONIMMIGRANT WORKER 
The Petitioner, a foreign entity operating a U.S. company, engaging in the 
import and export of quality dry foods, seeks to temporarily employ the Beneficiary as the CEO of its 
new office under the L-1 A nonimmigrant classification for intracompany transferees. See 
Immigration and Nationality Act (the Act) section 10l(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The 
L-1A classification allows a corporation or other legal entity (including its affiliate or subsidiary) to 
transfer a qualifying foreign employee to the United States to work temporarily in an executive or 
managerial capacity. 
The Director, Vermont Service Center, denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary will be employed in a primarily managerial or executive capacity 
within one year of approval of the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits a brief and asserts that 
the Director held the Petitioner to a higher standard of proof by not reviewing the petition pursuant 
to the new office provisions found in 8 C.F.R. § 214.2(1)(3)(v), which would provide sufficient time 
to develop the new office as outlined in the evidence provided in the initial submission. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(15)(L) of the Act. 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. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
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Matter of R.P.B-R- Ltd. 
(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) ofthis 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 him/her to 
perform the intended services in the Uniteg 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(1)(3)(v) further provides that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office in the United States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involved executive or managerial 
authority over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of 
the foreign entity to remunerate the beneficiary and to commence 
doing business in the United States; and 
(3) The organizational structure of the foreign entity. 
2 
Matter of R.P.B-R- Ltd. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity at its new office in the United 
States. Although the duties listed for the Beneficiary's proposed position appear to follow the 
"executive" provision, the U.S. employer has not specifically described the Beneficiary's proposed 
position as either managerial or executive. Therefore, our analysis will explore both. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": ' 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 
Further, "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." !d. 
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. 
3 
Matter of R.P.B-R- Ltd. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
A. Discussion 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary would be 
employed in a managerial or executive capacity in the United States within one year of the approval 
of the new office petition. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F .R. § 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 in a managerial or executive capacity. !d. 
/ 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table dycision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In its initial letter of support, the U.S. employer described the Beneficiary's proposed position at its 
new office as follows: 
As CEO he will be responsible for the development, management, and control of the 
entire US operation. As CEO, while receiving a general supervision from the Board 
of Directors, he will establish the goals and policies of the organization. He will 
implement our vision and trading values. He will exercise wide latitude in 
discretionary decision making and direct the managers of each major component of 
our US organization. 
During the first year of opening our operations in the U.S., [the Beneficiary] will 
oversee the start-up operations of [the U.S. company] including banking, accounting 
and legal matters. He will identify, develop and direct the implementation of 
business strategies and policy manuals. He will plan, develop and direct operational 
activities and oversee the training and hiring and if necessary firing of U.S. staff for 
executive and supervisory positions. He will be responsible for planning internal 
communications, develop and awareness of corporate direction; mission, aims and 
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Matter of R.P.B-R- Ltd. 
activities. He will negotiate contracts and agreements with clients and suppliers. He 
will report to [the foreign entity] on organizational plans and performance. 
This description was vague and did not provide any insight as to what the Beneficiary would actually 
do on a day-to-day basis during the initial year of operations, such that he will be elevated to a 
position where he will function primarily as a manager or executive. While the broadly stated 
responsibilities suggest that the Beneficiary would have managerial authority over the petitioning 
company, there is insufficient detail to establish that his actual duties would be primarily managerial 
or executive in nature within one year of petition approval. 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. 1103,1108 (E.D.N.Y. 1989), a.f('d, 905 F.2d41 (2d. Cir. 1990). 
In response to the Director's request for evidence (RFE), the U.S. employer submitted a letter stating 
that, during the first six months of operations, the Beneficiary will contact potential clients and enter 
into contracts, and during the final six months of operations, the Beneficiary will continue business 
development efforts and possibly appoint new employees. The U.S. employer further stated that the 
Beneficiary's job duties as CEO will include planning, developing, and directing operational 
activities, continue to be responsible for planning internal communications, developing an awareness 
of corporation direction, mission, aims, and activities, and reporting to the foreign entity on 
performance and organizational plans. 
Here, rather than providing clarification on the Beneficiary's proposed dut~es and additional details 
about the actual tasks he will perform i_n carrying out his listed duties, the U.S. employer did not 
provide any new information pertaining to the Beneficiary's proposed position in the United States. 
The U.S. employer, again, has not provided any insight as to what the Beneficiary will actually be 
doing on a day-to-day basis at its new office. The U.S. employer did not provide any additional 
information about the Beneficiary's duties or how much time he will devote to each of them. The 
U.S. employer's description ofthe Beneficiary's job duties does not establish what proportion ofthe 
Beneficiary's duties will be managerial or executive in nature, if any, and what proportion will be 
non-managerial or non-executive. See Republic of Transkei v_ INS, 923 F.2d 175, 177 (D.C. Cir. 
1991 ). These general statements do not offer any clarification as to the Beneficiary's actual 
proposed duties 
1
in the United States, and fall considerably short of demonstrating that that the 
Beneficiary will primarily manage the organization, supervise and control the work of other 
supervisory, professional, or managerial employees, direct the management of the organization, or 
establish goals and policies. 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 not provided any detail or explanation of the 
beneficiary's proposed activities in the course of his daily routine. The achml duties themselves will 
reveal the true nature of the employment. Fedin Bros. Co .. Ltd v. Sava, 724 F. Supp. at 1108, aff'd, 
905 F.2d 41 (2d. Cir. 1990). 
5 
Matter of R.P.B-R- Ltd. 
Overall, the position descriptions alone are insufficient to establish that the Beneficiary's duties 
would be primarily in a managerial or executive capacity, particularly in the case of a new office 
petition where much is dependent on factors such as the U.S. employer's business and hiring plans 
and evidence that the business will grow sufficiently to support the beneficiary in the intended 
managerial or executive capacity. The U.S. employer has the burden to establish that the new office 
would realistically develop to the point where it would require the beneficiary to perform duties that 
are primarily managerial or executive in nature within one year. Accordingly, the totality of the 
record must be considered in analyzing whether the proposed duties are plausible considering the 
petitioner's anticipated staffing levels and stage of development within a one-year period. See 
generally, 8 C.P.R. § 214.2(1)(3)(v)(C). 
The record includes the U.S. company's business plan, dated September 2015, describing its 
intended business operations in the United States. The business plan states that the U.S. company's 
business model will focus on two divisions: its "bulk-sale domestic division" and its "bulk-sale 
international division." According to the business plan, each division will contribute about 50% of 
the company's revenue. The "bulk-sale domestic division" will keep a regular stock/inventory of 
basmati and non-basmati rice, will work closely with various local companies to meet clients' needs 
and order requirements for irregular requests of products, and will market through sales executive 
and market brokers. The "bulk-sale international division" will not keep any stock/inventory on 
hand and instead will book orders as required by clients for direct shipments/deliveries. The 
business plan then goes on to state that the U.S. company's wholesale division will deal in sales of 
various products on a wholesale basis, both locally and internationally, and will contribute to about 
70% of the company's revenues; its sales division will deal in local trading on a bulk-sales basis, 
will keep a regular stock/inventory of certain products, will work closely with various local 
companies, and will contribute to about 15% of the company's revenues; its 
"indenting/commission-based transactions division" will arrange sourcing of products for customers 
from specialized suppliers around the world on a service-fee basis and will contribute to about 15% 
of the company's revenues. 
Here, the U.S. company's business plan is inconsistent with its business model. First, it statesthat 
the U.S. company's business will be 100% focused on bulk-sales, at about 50% local and 50% 
international. Then, it states that it will be 70% local and international wholesale, 15% local bulk­
sales, and 15% commission-based sales. This lack of consistency does not paint a clear picture of 
what the U.S. company will do during its first year of operations, let alone what the Beneficiary and 
his proposed subordinates will do during that time. Further, it raises concerns about the U.S. 
company's position at the end of its first year of operations and whether it will be in a position to 
support the Beneficiary in a managerial or executive capacity. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliabpity and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988). 
In denying the petition, the Director acknowledged that the new office's business plan may be 
entirely prospective, but found that the record did not sufficiently demonstrate how the U.S. 
6 
Matter of R.P.B-R- Ltd. 
company will conduct its business, who or by whom its daily operations will be carried out, and did 
not present a credible or realistic snapshot of the nature, scope, and structure of the new office after 
one year. 
On appeal, the U.S. employer does not directly address the Director's findings in her decision. The 
U.S. employer contends that the Director erred by reviewing its new office petition as if it were 
requesting an extension pursuant to the more stringent extension provisions at 8 C.F.R. 
§ 214.2(1)(14)(ii)(A-E). The U.S. employer states that as it is a new office, the Director should have 
reviewed the petition pursuant to the lower standard new office provisions at 8 C.F.R. 
§ 214.2(1)(3)(v), which would provide the U.S. employer sufficient time to develop the new office as 
described in its business plan. The U.S. employer contends that it provided all of the evidence 
necessary to meet the requirements for a new office petition by a preponderance of the evidence. 
Here, we find that the Director applied the appropriate provisions in its decision and clearly outlined 
its reasons for denial of the petition. The Director acknowledged that the U.S. company is a new 
office and clearly identified the inconsistencies in the record as submitted by the U.S. employer. 
The Director further pointed out that the U.S. company's proposed employees do not seem 
consistent with its business plan and that it does not appear that the Beneficiary will be relieved from 
performing non-qualifying duties within one year. 
Moreover, the business plan clearly states that there will be divisions, within either of its intended 
business models, which will require the U.S. company to keep an inventory of products. The U.S. 
employer's sublease agreement simply states that its premises are 1,000 square feet, but does not 
describe the premises or identify the permitted use of the premises. The submitted photos of the 
U.S. premises only show a small office setting with a desk and two small tables. Although there 
appear to be rice samples on the small tables, the U.S. employer has not shown that it has premises 
to house any amount of inventory necessary to carry out its intended operations or that it has 
otherwise made plans to store its product. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
ofSojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter o.fTreasure Craft o.fCal(fornia, 14 
I&N Dec. 190 (Reg'l Comm'r 1972)). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. 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(1)(1 )(ii)(B)( 4). If a petitioner claims that a beneficiary dire~tly supervises other employees, 
those 'subordinate employees must be supervisory, professional, or managerial, and the beneficiary 
must have the authority to hire and fire those employees, or recommend those actions, and take other 
personnel actions. Sections 101(a)(44)(A)(ii)-(iii) ofthe Act; 8 C.F.R. §§ 214.2(l)(l)(ii)(B)(2)-(3). 
7 
Matter of R.P.B-R- Ltd. 
In terms of its staffing plan, the U.S. company's business plan states that, during the initial year of 
development, the Beneficiary intends to "develop and fill positions" in the following areas: accounts 
payable and receivable I financial I bookkeeper, IT and logistics, sales and marketing manager, 
secretary I assistant bookkeeper, labors, drivers, and sales persons. The included "personnel table" 
shows that the U.S. company will compensate a manager, a sales executive, and an accountant 
during its first year of operations, adding a logistics supervisor during its second year, a driver 
during its third year, an assistant accountant during its fourth year, and a second sales executive 
during its fifth year. The U.S. employer submitted the U.S. company's proposed organizational 
chart, illustrated as follows: 
Board of Directors 
(Foreign Company - India) 
CEO 
[Beneficiary] 
I 
I I I 
In Charge Finance & Accounts IT & Logistics Sales & Marketing Manager 
(appointment in 3 months) (to be outsourced) (appointment in 3 months) 
\ 
Assistant Accountant -
Labors & Driver Sales Executive 
--- (appointment in 6-9 months) (to be outsourced) - (appointment in 6-9 months) 
\ 
In response to the RFE, the U.S. employer submitted a letter stating that, within the first three 
months of operations, the Beneficiary will interview and train potential employees in "finance & 
accounts," which the U.S. employer noted is called "Accountant" in the U.S. company's business 
plan, and a "sales & marketing manager," which the U.S. employer noted is called "Sales Executive" 
in the business plan. The U.S. employer further stated that the Beneficiary will be relieved from his 
non-qualifying duties through the hiring of these positions within the first year. The U.S. employer 
stated that the majority of the day-to-day non-managerial tasks required to product the products and 
provide the services to customers will be carried out by the Beneficiary's two proposed subordinate 
staff. 
The U.S. employer also submitted position descriptions and job duties for the Beneficiary's 
proposed subordinates at the U.S. company: manager finance & accounts, IT, manager admin & 
logistics, sales & marketing manager, assistant accountant, labors & driver, and sales executive. The 
U.S. employer noted that it will hire the sales and marketing manager and the finance and accounts 
manager within the first year of operations. However, the position descriptions for these positions 
include tasks that are generic to each position and are not descriptive in terms of the U.S. company's 
actual proposed operations. The tasks are not presented in~ the context of the U.S. company's 
business and are exact copies of those position descriptions provided for the foreign entity's 
employees in similarly-titled positions. Further, given the listed duties for each position, it is 
8 
Matter of R.P.B-R- Ltd. 
unknown whether these two individuals will relieve the Beneficiary from performing technical IT 
duties, operational logistics duties, and administrative human resource duties within one year of 
commencing operations. Here, the U.S. employer has submitted incomplete and inconsistent 
evidence as to the proposed positions of the U.S. company. 
Additionally, the business plan outlines several possible sales strategies that appear to require 
, dedicated sales staff to perform sales, marketing, inventory, and logistics. However, the listed duties 
for the positions provided do not indicate that any of these positions will align to either of the 
proposed business operations outlined in the business plan as the proposed duties for the sales & 
marketing manager and the sales executive positions do not include specific duties clearly 
performing the sales functions required to operate the business and generate revenue. Further, the 
business plan also addresses a marketing strategy and states that its marketing strategy will have the 
. . ' objective of raising awareness and visibility of its 'quality in bulk orders. However, although its 
"budget table" includes costs of $12,000 for "advertising, marketing, and promotions" during its first 
year of operations, and a position titled "sales & marketing manager," the business plan does not 
outline an actual marketing strategy or identify who will carry out the duties related to marketing of 
the U.S. company. The position description of the sales and marketing manager also does not 
clearly indicate that this position will perform actual marketing duties as its only duty related to 
marketing (out of a total of 11 listed duties), simply states "determines annual unit and gross-profit 
plans by implementing marketing strategies; analyzing trends and resul'ts." This is not indicative of 
a position that will perform tasks directly related to the marketing of the U.S. company and the U.S. 
employer has not indicated that it will hire any position to perform these duties. 
As this is a petition for a new office, the U.S. employer need only demonstrate that it will have 
sufficient staff within one year of approval to relieve the Beneficiary from performing non­
qualifying duties. The U.S. employer indicated that the Beneficiary will have two direct 
subordinates and described each of their duties as discussed above. While the organizational chart 
and some position descriptions indicate that there are supervisory levels among the Beneficiary's 
subordinates, the listed job duties for the subordinate positions do not demonstrate that the positions 
themselves are supervisory or managerial. Therefore, we cannot conclude that the Beneficiary will 
manage any supervisory or managerial employees. 
Furthermore, the Beneficiary's subordinates' listed duties also do not demonstrate that any of the 
positions are professional, as the U.S. employer has not demonstrated that their listed duties require· 
the employee to have a professional degree. 1 As the listed duties for each of the subordinates' 
positions are not indicative of positions that are managerial, supervisory, or professional in nature, 
1 In evaluating whether the Beneficiary would manage professional employees, we must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for. entry into the field of endeavor. Cf 8 C.F.R. § 
204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate degree or its 
foreign equivalent is the minimum requirement for entry into the occupation"). Section I 01 (a)(32) of the Act, 8 U.S.C. § 
II 0 I (a)(32), states that "[t]he term profession shall include but not be limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in eleme~tary or secondary schools, colleges, academies, or seminaries." 
9 
Matter of R.P.B-R- Ltd. 
and the U.S. employer has not clearly indicated that the Beneficiary will primarily devote his time to 
managing employees, the U.S. employer has not demonstrated that the Beneficiary will be employed 
in a primarily managerial capacity. Although it appears that the Beneficiary will have the authority 
to hire, fire, and supervise the proposed subordinate employees, the U.S. employer has not 
demonstrated that the Beneficiary's duties will primarily focus on the management of the 
organization and the supervision of qualifying managerial, professional, or supervisory employees, 
rather than on providing a service of the U.S. company. The U.S. employer has not submitted 
evidence that the Beneficiary's subordinate employees will relieve him from performing 
non-qualifying operational and administrative duties at the U.S. company. 
The U.S. employer has not established, in the alternative, that the Beneficiary will be 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) ofthe Act. The term "essential function" is not defined by statute or regulation. If 
a petitioner claims that a beneficiary will manage an essential function, a petitioner must clearly 
describe 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 a 
beneficiary's daily duties dedicated to managing the essential function. See 8 C.F.R. § 
214.2(1)(3)(ii). In addition, a petitioner's description of (). beneficiary's daily duties must 
demonstrate that the beneficiary will manage the function rathe~ than perform the duties related to 
the function. 
Here, the U.S. employer did not indicate that the Beneficiary qualifies as a function manager. The 
U.S. employer did not articulate how the Beneficiary's proposed duties at the U.S. company qualify 
him as a function manager and did not provide a breakdown indicating the amount of time the 
Beneficiary will devote to duties that would clearly demonstrate that he will manage an essential 
function of the U.S. company. 
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 will 
"primarily" performing managerial or executive duties. See section 101(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 her/his duties are "primarily" managerial. As discussed herein, 
the U.S. employer's vague description of the Beneficiary's proposed duties at its U.S. company falls 
short of establishing that such duties are primarily managerial in nature. 
We will now turn our analysis to the question of whether the U.S. employer established that the 
Beneficiary will be employed in the Unitedc States in a primarily executive capacity within one year 
of petition approval. 
10 
Matter of R.P.B-R- Ltd. 
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 managerial employees for a beneficiary to direct 
and a 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. A 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." !d. While the definition of "executive 
capacity" does not require the petitioner to establish that the beneficiary supervises a subordinate 
staff comprised of managers, supervisors and professionals, it is the petitioner's burden to establish 
that someone other than the beneficiary carries out the day-to-day, non-executive functions of the 
organization. 
Here, the U.S. employer does not specifically claim that the Beneficiary will be employed in a 
primarily executive capacity. However, while generic and vague, the U.S. employer's brief 
description of the Beneficiary's proposed duties appears to align to the definition of executive 
capacity. For example, the U.S. employer claims that he will "be responsible for the development, 
management, and control of the entire US operation[;] receiv[ e] general supervision from the Board 
of Directors[;] establish the goals and policies of the organization[; and] exercise wide latitude in 
discretionary decision making and direct the managers of each major component of [its] US 
organization." The U.S. employer did not provide any additional information about the 
Beneficiary's proposed duties or how much time he will devote to each. Here, the U.S. employer's 
description of the Beneficiary's job duties does not establish what proportion of the Beneficiary's 
duties will be executive in nature, and what proportion will be non-executive. See Republic of 
Transkei v. INS, 923 F.2d at 177. These general statements do not offer any clarification as to the 
Beneficiary's actual proposed duties in the United States, and fall considerably short of 
demonstrating that that the Beneficiary will primarily focus on the broad goals and policies pf the 
organization rather than on its day-to-day operations. The vague description of the Beneficiary's 
proposed position with the U.S. employer does not demonstrate that the Beneficiary will focus the 
majority of his time on executive duties rather than the day-to-day operations of the business. 
Further, it appears that the U.S. employer has simply paraphrased the language in the statute when 
describing the Beneficiary's proposed duties in the United States. 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. See Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. at 1108. Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In response to the RFE and on appeal, the U.S. employer does not provide any clarification or 
additional information pertaining to the Beneficiary's proposed duties. Absent a detailed description 
of the Beneficiary's actual duties, and absent evidence to show that his subordinates will relieve him 
II 
Matter of R.P.B-R- Ltd. 
from performing non-qualifying operational and administrative duties, the record does not establish 
that the Beneficiary will be employed in a primarily executive capacity in the United States. 
Although afforded a second opportunity to provide the deficient information, the U.S. employer did 
not provide any detail or explanation of the Beneficiary's proposed activities in the course of his 
daily routine. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary would be employed in a managerial or executive capacity within one year of the 
approval of the new office petition. 
III. CONCLUSION 
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; Matter o.fOtiende, 26 I&N 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of R. P. B-R- Ltd., ID# 96625 ( AA 0 Nov. 23, 20 16) 
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