dismissed L-1A Case: Food Products

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-NY INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 30,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and seller of food products, seeks to temporarily employ the Beneficiary 
as the chief executive officer (CEO) of its new office under the L-1A nonimmigrant classification 
for intracompany transferees. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(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. The Director concluded that the 
Petitioner did not establish that the Beneficiary would be employed in a 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 asserts that it will open a second 
location shortly and that it has hired additional staff. The Petitioner contends that the Beneficiary 
will oversee subordinate managers and primarily perform executive level duties. 
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 10l(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.P.R.§ 214.2(1)(3) states that an individual petition filed on Form I-129 shall be 
accompanied by: 
Matter of M-NY Inc. 
(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 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(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 pe.titioner 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 intenrjed 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. 
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Matter .of M-NY Inc. 
II. UNITED STATES EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organizatiqn, 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 th~ 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) ofthe 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. 
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) of the Act. 
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Matter of M-NY Inc. 
A. Evidence of Record 
The Petitioner filed the Form I-129 on March 24, 2015. In the Form I-129, the Petitioner indicated 
that it has four current employees in the United States and a projected gross annual income of 
. $350,000. 
In the Form I-129, the Petitioner stated that as CEO, the Beneficiary would be responsible for 
"supervision of all aspects of company ' s activities , negotiation .of contracts with prospective 
distributors, stipulation of same, [and] supervision of staff at locations for direct sales." 
The Petitioner submitted a business plan stating that it intends to do business as 
selling precooked, frozen pasta imported from Italy. The Petitioner stated that it would "initially 
focus on 
residents of both through in-store sales and super markets promotion. " In 
a section titled "personnel plan," the Petitioner stated that it had two employees, 
acting as president, and the Beneficiary as "Operations Director." Further, it explaine~ that the 
company employed a "No 3 Sales person," and it projected that it would be "hiring 4 more 
employees before the end of 20 15 at the time of the opening of the second store and 8/1 0 more in 
2016." 
In addition, the business plan stated that the Petitioner had opened its first store in the 
in on November 14, 2014. Beyond the sale of precooked frozen pasta at the 
market, the Petitioner indicated that it would focus on catering, selling to local markets and retailers, 
and opening nine other stores in various other major metropolitan areas in the United States. The 
Petitioner submitted a financial projection for the business estimating that it would earn $452,000 in 
revenue and pay $95,040 in salaries during the first year of operation and that it would earn 
$858,000 and pay $195,680 in salaries during its second year. 
The Petitioner provided a "License Agreement" it executed with in August 2014 
indicating that it had leased space at the through August 2016. The Petitioner 
submitted bank statements , vendor invoices, and other transactional documents suggesting that it 
was operating a retail business specializing in past
a sales. 
The Petitioner submitted documentation reflecting nine separate wire transfers from the 
Beneficiary ' s foreign employer , its parent company , totaling $44,454. In addition, the Petitioner 
provided documentation indicating that the foreign entity also wired $10,040 to the Petitioner 's 
attorney, $4460 to and $5840 to an 
The Director later issued a request for evidence (RFE) instructing the Petitioner to submit additional 
evidence to demonstrate that the Beneficiary would be employed in a managerial or executive 
capacity in the United States within one year. Specifically, the Petitioner requested that the 
Petitioner submit evidence to establish the size of the foreign entity's investment in the Petitioner 
and its ability to pay the Beneficiary ' s salary. The Director further asked the Petitioner to provide 
information on the proposed number of employees it would hire during the first year, including an 
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Matter of M-NY Inc. 
\ 
organizational chart listing all its proposed positions, the duties of these positions, and their expected 
education levels. In addition, the Director requested that the Petitioner explain how its proposed 
business venture would support the Beneficiary in a managerial or executive capacity within one 
year. 
In response, the foreign entity's president, submitted a letter stating that his 
company "has sales in Italy of approximately 2.000.000 euros [ ... ] and has now decided to bring to 
the United States its new product, named indicated that the foreign entity 
"has invested more than $160.000 in the project and has the financial ability to support the foreseen 
expansion of the project." He explained that he "foresees the opening of up to 100 sales points all 
over the United States of America within 5/6 years." He stated that "each store will be only 400/500 
sq/ft and the reduced dimensions will assure low lease costs and could be managed by only three 
people." 
further stated that the Petitioner already had plans to open five additional stores before 
December 2015 and provided a list of five proposed locations. He indicated that 
"each store will be staffed with one manager and two workers" and that "one executive will also be 
hired in order to help [the Beneficiary] in the general management of the business." 
explained that the Petitioner planned to establish its own pasta production capabilities by the end of 
2015 instead of relying on imports from Italy. He stated that after the fifth store is open, the 
Petitioner will hire "several other manager[ s )/employees" to focus on supermarket distribution, 
opening pasta bars in hotels, catering, events, schools and colleges, sporting events, and franchising. 
The Petitioner provided its organizational chart reflecting that it employed the Beneficiary as 
"president/CEO," a local manager and two "workers" subordinate to the Beneficiary, and "some 
part-time workers." The chart did not include the individual identified in the 
Petitioner's business plan as the company president. 
In denying the petition, the Director concluded that the evidence did not establish that the proposed 
new office would support the Beneficiary in a managerial or executive capacity within one year of 
approval. The Director found that it appeared from the evidence that the Beneficiary would not act 
as more than a first line supervisor and that the company would not employ sufficient employees 
within one year to relieve the Beneficiary from performing non-qualifying operational duties. 
I 
In its appeal, the Petitioner asserts that the Beneficiary will be responsible for hiring managers to act 
as first line supervisors overseeing its proposed retail locations. The Petitioner states that there is 
"no doubt" that the Beneficiary duties will be primarily executive in nature, asserting that she would 
have wide latitude on the choice of new stores, negotiations, and the selection of subordinate 
managers. The Petitioner disputes the Director's conclusion that the Beneficiary will act primarily 
as a first line supervisor stating that "her duties include surveying the market, selecting the first and 
subsequent locations, retaining an architect to design and furnish the stores, choosing a shipping 
company and a customs broker to ship the product from Italy to the United States and hiring 
managers to supervise the [current] store and the future locations." Further, the Petitioner states that 
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Matter of M-NY Inc. 
"it is foreseeable that when the number of stores will reach a level to require the hiring of a sales 
manager." 
The Petitioner further contends that the Beneficiary's role "should be considered within the whole 
organization," asserting that she will continue to supervise professional subordinates working for the 
foreign entity, which it claims is also engaged in "the production, marketing and distribution of pasta 
and bottled sauce." 
Lastly, the Petitioner asserts that "pending the approval of the petition," it has reached an agreement 
for the opening of its second location in New York. The Petitioner noted that it is a larger 
location and that it has hired two new managers to supervise five additional workers. The Petitioner 
states that, with the opening of this location on March 1, 2016, the Beneficiary would manage an 
organization with three managers, eight employees, and a sales volume of over one million dollars. 
B. Analysis 
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 will be employed 
in a managerial or executive capacity in the United States within one year an approval of the new 
office petition. 
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. The 
"new office" regulations allow a newly established petitioner one year to develop to a point that it 
can support the employment of a beneficiary in a primarily managerial or executive position. 
The evidence submitted in support of the new office petition should demonstrate a realistic 
expectation that the enterprise will succeed and rapidly expand as it moves away from the 
developmental stage to full operations, where there would be an actual need for a manager or 
executive who will primarily perform qualifying duties. See generally 8 C.F.R. 
§ 214.2(1)(3)(v). 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. !d. 
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. 
Here, the Petitioner consistently claims that the Beneficiary's duties would be primarily executive 
within one year. The statutory definition of the term "executive capacity" focuses on a person's 
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Matter of M-NY Inc. 
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." Id. 
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 decision). 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. USCJS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d at 1533. 
In the current matter, the Petitioner has not submitted a detailed and comprehensive explanation of 
the Beneficiary's duties after the company's initial year as a new office. Further, the Petitioner has 
not provided a consistent position title for the Beneficiary, referring to her as the operations director, 
general manager, CEO and "president/CEO," while also claiming to employ another individual as its 
president. For this reason, it is difficult to determine whether the Beneficiary would be the senior 
employee in the U.S. company or whether she would report to the individual identified as the 
president. 
In the petition, the Petitioner generally stated that the Beneficiary would be responsible for 
"supervision of all aspects of the company's activities, negotiation of contracts with prospective 
distributors, stipulation of same, [and] supervision of staff at locations for direct sales." However, 
this description could apply to any manager or executive acting in any retail business. The Petitioner 
has provided few specifics to support a conclusion that the Beneficiary would primarily devote her 
time to qualifying managerial or executive tasks within one year. 
In its appeal, the Petitioner provides some additional detail, indicating that the Beneficiary will 
survey new locations for stores, select locations, retain architects to design and furnish the stores, 
hire managers, and choose shipping companies and a customs broker to ship its product from Italy. 
However, the Petitioner has not articulated specific plans to hire any other managers or employees 
during the first year to perform the operational aspects inherent in these duties, beyond managers and 
employees set to operate its proposed retail locations. As such, the Beneficiary's duties submitted 
on appeal suggest that she will be significantly engaged in non-qualifying operational aspects of the 
proposed business, such as coordinating construction of new locations, administering payroll, paying 
expenses, managing shipments from Italy, amongst other inherent operational duties of the business. 
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Matter of M-NY Inc. 
Reciting the Beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the Beneficiary's daily job duties. The 
Petitioner has failed to provide any detail or explanation of the Beneficiary's activities in the course 
of their daily routine. The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). 
Overall, the position description alone is 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 Petitioner'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 Petitioner has the burden to establish that the U.S. company 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 
mll:st 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.F.R. § 214.2(1)(3)(v)(C). 
The Petitioner has provided inconsistent statements and insufficient documentation regarding its 
initial staffing level and its proposed business and hiring plans for its initial year of operations and 
beyond. The Petitioner stated in the Form I-129 that it had four employees as of the date of the 
petition. However, the business plan provided in support of the petition indicated that ~t employed 
only the Beneficiary, a president and a "No 3 Sales, person." The Petitioner did not 
identify or name a fourth employee. In response to the RFE, the Petitioner removed from 
its organizational chart, named a "local manager" and two "workers," and stated that 
it employs part­
time workers, but again, did not provide job descriptions, salaries, or other information for these 
claimed employees or evidence of wages paid to them. 
With respect to future hiring plans, the Petitioner's initial business plan indicated that the company 
anticipated hiring four additional employees by the end of 2015, and eight to ten additional staff in 
2016, but it did not provide a more detailed timeline for hiring, a proposed organizational chart, or 
information regarding the job titles, duties, or salaries of the anticipated employees. Moreover, the 
financial projections in the business plan indicated that the company would pay $95,040 in salaries 
during the first year (20 15) and $195,580 
in the second year, while the Beneficiary's offered salary 
is $100,000. Based on these projections, the financial figures do not support the Petitioner's claim 
that it intends to employ as many as 8 employees in 2015 and 16 employees in 2016. 
In the RFE, the Director requested that the Petitioner submit a proposed organizational chart listing 
all current and proposed employees and their titles, including their duties and current or expected 
education levels. In response, the Petitioner submitted the names of three subordinates and vague 
titles such as "local manager" and "workers" and "some other part-time workers." However, the 
Petitioner did not provide job duties for the claimed employees or evidence of wages paid to them. 
Further, the chart did not include the Petitioner's president who is elsewhere documented 
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Matter of M-NY Inc. 
as performing many duties related to the start-up of the company. In addition, and most importantly 
for a new office, the organizational chart did not reflect the company's proposed expansion during 
the first year, its proposed positions, when these employees are projected to be hired, and what their 
expected education levels will be. Failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
In response to the RFE, the foreign entity stated the Petitioner would imminently 
open five other 
retail locations throughout by December 2015, and provided addresses for these 
coming locations . As noted, the concurrently submitted organizational chart did not include these 
locations or their proposed employees. The Petitioner did not submit a revised business plan 
showing its projected staffing and financial projections for this imminent expansion, and, as noted 
above, the initial business plan clearly did not account for the opening of six or more stores in 2015. 
The Petitioner provided no timetable for the opening of these stores, the date these additional 
employees will likely be employed, or any supporting evidence that these coming locations exist. 
On appeal, the Petitioner has not mentioned these five New York locations. Instead, the Petitioner 
states that it has secured a second retail location that would open March 1, 2016, and that it has hired 
two additional managers and five employees. Again, the Petitioner provides no supporting evidence 
to corroborate the existence of this location and these newly-hired employees. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter o.fSo.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter 
o.fTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The Petitioner asserts that it will also hire "several other
" managers and employees to expand into 
supermarkets , hotels, catering and other industries , further referring to a "sales executive network" 
and a "sales manager ," but it does not clearly articulate its business or hiring plans related to this 
proposed expansion during the first year. In fact, as noted, the Petitioner financial projections with 
respect to salary do not appear to account for this level of expansion. Again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. !d. The Petitioner has not resolved these inconsistencies with 
independent, objectiv e evidence pointing to· where the truth lies. Matt er of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
The Petitioner also states on appeal that the Beneficiary ' s supervision of subordinates abroad should 
be taken into account in determining whether she would be employed in a managerial or executive 
capacity. The Petitioner did not previously mention the foreign employees when describing the 
Beneficiary's proposed role in the United States. While the record contains an foreign 
organizational chart showing that the Beneficiary currently supervises office and administrative staff 
in Italy, the Petitioner did not submit job descriptions for these employees or supporting evidence to 
substantiate their employment, and has not explained how this staff would contribute to the day-to­
day operations of the U.S. company. For these reasons , the record does not support the Petitioner 's 
new claim that the Beneficiary ' s responsibilities will include oversight of foreign staff. 
9 
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Matter of M-NY Inc. 
Therefore, although the Petitioner is afforded the opportunity to expand during the first year, the 
consistency and credibility of its statements, and any supporting evidence to substantiate its 
statements are crucial to assessing whether it is likely to meet its expectations during the first year. 
Here, the Petitioner has provided inconsistent statements and insufficient documentation to 
corroborate its proposed staffing and expansion plans for the first year of operations, making it 
difficult to determine the company's anticipated scope and structure at the end of the first year of 
operations and whether the company will likely grow to the point where it will support the 
Beneficiary in a qualifying managerial or executive position. 
Furthermore, the Petitioner has not established the size of the investment made by its foreign parent 
company as required by a new office in 8 C.F.R. § 214.2(1)(3)(v)(C)(2). The Petitioner submitted 
evidence of various wire transfers from the foreign entity to the Petitioner, the Petitioner's attorney, 
and certain other parties, induding the Petitioner's lessor and a consulting company, which 
amounted to $64,995. However, in a support letter in response to the RFE, the president of the 
foreign entity indicated that it had invested "more than $160,000" in the U.S. company. Not only is 
this amount inconsistent with the submitted wire transfers, the latter amount has not been 
substantiated with supporting evidence. In addition, the Petitioner has not identified its anticipated 
start up and operating costs for the first year which makes it difficult to determine whether either of 
these amounts would be sufficient to carry out the company's business plan. 
Overall, the record does not indude a dear description of the Beneficiary's proposed duties, or 
consistent statements and supporting documentation regarding the Petitioner's anticipated growth, 
structure, or staffing levels during the initial year of operations. As such, the Petitioner has not 
demonstrated that the Beneficiary, as a personnel manager, would be primarily supervising a 
subordinate staff of professional, managerial, or supervisory personnel within one year, or that she 
would be managing an essential function of the organization. See section 101 (a)( 44 )(A)(ii) of the 
Act. Furthermore, the Petitioner has not established that it would employ sufficient staff to relieve 
the Beneficiary from performing non-qualifying duties so that the beneficiary may primarily engage 
in managerial or executive duties. Finally, regardless of the Beneficiary's position title, the record is 
not persuasive that the Beneficiary will function at a senior level within an organizational hierarchy 
or focus primarily on the goals and policies of the organization within one year. See generally 
section 101(a)(44)(B) ofthe Act. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary will be employed in a managerial or executive capacity in the United States within 
one year of approval of the new office petition. 
Ill. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Beyond the decision of the Director, the Petitioner has not established that the Beneficiary acted in a 
managerial or executive capacity abroad. 
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Matter of M-NY Inc. 
A. Evidence of Record 
On the Form I-129, the Petitioner identified the Beneficiary's foreign employer as 
On the L Classification Supplement to Form I-129, the Petitioner described the 
Beneficiary's 
duties abroad as follows: 
General Manager. Negotiation of contracts with clients and supervision of 
implementation of the same. 
Further, in the same section of the Form I-129, the Petitioner stated that the Beneficiary had "seven 
years['] experience at [the foreign employer], of which 4 as general manager, in charge of all aspects 
of company's activity as promoter of food products in supermarkets." 
The Petitioner provided a marketing 
document stating that it "specializes in the rental of equipment 
(tanks, banquets, slicers, scales) as well as in setting up stands and fairs." In its business plan, the 
Petitioner stated that the foreign entity "is a company leader in managing in-store promotions in the 
Italian supermarket business, field marketing, merchandising activities and post-selling reports." 
The Petitioner explained that its "core business is to train and teach new promoters and to use them 
to present and offer fresh food product in the supermarkets with more and more professionalism." 
The Petitioner stated that the foreign entity has "more than 500 hostesses and promoters, models and 
stewards work[ing] daily to support [the foreign entity's] customers in promotional campaigns and 
in store activities." 
In the RFE, the Director indicated that the Petitioner needed to submit additional evidence to 
establish that the Beneficiary acted in a managerial or executive capacity abroad. The Director 
requested that the Petitioner submit copies of the Beneficiary' s payroll or other personnel records to 
confirm her managerial or executive employment. The Direct,or asked the Petitioner to provide a 
foreign entity organizational chart reflecting all its employees, their names, positions, duties, 
education levels and salaries, along with the Beneficiary's place therein. Further, the Director 
requested that the Petitioner submit a letter from the foreign entity detailing the Beneficiary's typical 
managerial or executive duties and decisions. 
In response, the foreign entity submitted a letter from its president stating that the Beneficiary 
"supervises all [foreign entity] accounts and sales" and that she oversees "the work of the' office staff 
and takes part in meetings with managers, sales managers and owners of Italian and foreign 
companies, and directly takes care of any contracts made." The president of the foreign entity 
indicated that the Beneficiary "began in 1995 as sales operator and today occupies a 
managerial/executive position." 
The Petitioner submitted a foreign entity organizational chart indicating that the Beneficiary acted as 
executive director earning €160,000 annually and reporting to the "non-executive director." The 
chart further reflected that the Beneficiary oversaw the following subordinates earning the listed 
annual salaries: a finance and administration emplo yee (€24,000), a support administration employee 
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Matter of M-NY Inc. 
(€24,000), a response front office employee (€17,700), and two support front of1ice employees 
(€12,000). The chart appeared to indicate that the finance and administration employee held 
accounting degrees, that the support administration and response front office employees hold 
"business administrator degree[s]," and that the support front office employees respectively have a 
"human resources" degree and a "social pedagogical diploma." In addition, the chart reflected that 
the foreign entity had seventeen other full-time employees and approximately 90 other "occasional 
workers." 
The Petitioner also submitted the foreign entity's balance sheet for 2014 indicating that the company 
earned €1,351,667 in revenue and paid €72,993 in salaries and wages during 2014 and that it earned 
€563,717 in revenue and paid €164,341 in salaries in wages during 2013. 
B. Analysis 
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 was employed in 
a managerial or executive capacity abroad. 
When examining the managerial or executive capacity of the Beneficiary, we 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 performed by the Beneficiary and indicate whether 
such duties are in either 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 performed certain high-level responsibilities. Champion World, 940 F.2d 
at 1533 (9th Cir. 1991 ). Second, the Petitioner must prove that the Beneficiary has been primarily 
engaged in managerial or executive duties, as opposed to ordinary operational activities alongside 
the foreign entity's other employees. See Family Inc., 469 F.3d at 1313, 1316; Champion World, 
940 F.2d at 1533. 
In the current matter, the Petitioner has not submitted a sufficiently detailed duty description for the 
Beneficiary's position abroad necessary to demonstrate that she primarily devoted her time to 
qualifying managerial or executive tasks. For instance, in support of the petition, the Petitioner 
vaguely stated that the Beneficiary was responsible for "negotiation of contracts with clients and 
supervision of implementation of the same" and that she was "in charge of all aspects of company's 
activity as promoter of food products in supermarkets." These duties provide little insight into the 
Beneficiary's actual. day-to-day tasks abroad, as such, the Director requested a more detailed 
statement of the Beneficiary's duties, including examples of her typical managerial or executive 
duties and decisions. 
The Petitioner's response reflected little additional information on the Beneficiary's daily tasks 
abroad, again vaguely stating that the Beneficiary supervised "all [foreign employer] accounts and 
sales," that she oversaw "the work of the office staff and takes part in meetings with managers, sales 
12 
Matter of M-NY Inc. 
managers and owners of Italian and foreign companies," and that she "directly takes care of any 
contracts made." The Beneficiary's stated duties abroad could apply to any manager or executive 
working in any company or industry. The Petitioner has not specifically articulated or documented 
client contracts the Beneficiary negotiated and implemented, food products she promoted or 
supermarkets she worked with, accounts she managed, or managers, sales managers, or owners of 
other companies she met with. Reciting a 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. Conclusory assertions regarding a beneficiary's employment capacity 
are not sufficient. The actual duties themselves will reveal the true nature of the employment. Fedin 
Bros., 724 F. Supp. at 1108, aff'd, 905 F.2d 41. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
The Petitioner has submitted little supporting documentation to corroborate that the Beneficiary was 
employed in a managerial or executive capacity abroad. The Director requested that the Petitioner 
submit pay or personnel records from the foreign entity to confirm her employment, but the 
Petitioner did not provide this documentation. Likewise, the Director requested that the Petitioner 
provide duty descriptions for the members of the foreign entity's organizational chart, particularly 
the Beneficiary's claimed subordinates, to substantiate her asserted role. However, the Petitioner did 
not submit this evidence. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 22 
I&N Dec. at 165 (quoting Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
In addition, to the extent the Petitioner did provide evidence related to the Beneficiary's asserted 
foreign employment it includes various discrepancies which leave question as to wJtether the 
Beneficiary was acting in a managerial or executive capacity. For example, the foreign entity 
organizational chart indicates that the Beneficiary earned €160,000 and that her subordinates earned 
a combined €65,700. However, submitted foreign entity financial statements indicate that the 
company paid much less than this in overall salary during 2013 and 2014, or €72,993 and € 164,341 
during each respective year, not even taking into account the salaries of the numerous other 
employees listed in the foreign entity organizational chart. 
Further, the Petitioner provided inconsistent information regarding the Beneficiary's actual position 
abroad, stating that her title was both general manager and executive director. In addition, the 
organizational chart appears to reflect that the Beneficiary oversees various administrative functions 
related to finance, administration and front office activities, while her duty descriptions suggest that 
she acted in more of a sales and marketing capacity, overseeing client accounts, meeting with clients, 
13 
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Matter of M-NY Inc. 
and overseeing sales managers. The Petitioner has not resolved these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 92. 
On appeal the Petitioner appears to indicate that the Beneficiary acted as a personnel manager 
abroad through her supervision of professional subordinates. 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) of the Act; 8 C.F.R. § 214.2(l)(l)(ii)(B)(4). If a petitioner claims that a 
beneficiary directly supervises other employees, the 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(1)(1)(ii)(B)(2)-(3). 
To determine whether the Beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. C.f 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 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." 
Here, the Petitioner has not established that the Beneficiary acted as a personnel manager abroad. 
First, it is noteworthy that the foreign organizational chart does not indicate that the Beneficiary's 
subordinates supervise other employees, as such she cannot qualify as a personnel manager in this 
respect. Therefore, the question is whether the Petitioner has demonstrated that the Beneficiary 
primarily supervised professional subordinates abroad. We find that the Petitioner has not met this 
burden. As previously mentioned, the Petitioner has not submitted duty descriptions for any of the 
Beneficiary's subordinates in order to assess whether they perform professional level duties. The 
Petitioner only vaguely indicates that these subordinates have baccalaureate level degrees in areas 
such as accounting, business administration, and human resources. However, it provided rro 
supporting documentation to demonstrate that the Beneficiary's subordinates hold these degrees or 
that the knowledge acquired from these degrees is required for the performance of their duties. As 
such, the Petitioner has not established that the Beneficiary acted as a personnel manager in her 
capacity abroad. Again, going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 22 I&N Dec. at 
165 (quoting Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary was employed in a managerial or executive capacity abroad. 
14 
Matter of M-NY Inc. 
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 with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-NY Inc., ID# 12139 (AAO Sept. 30, 2016) 
15